"No-Knock" Warrant Resulting in Denver Man's Death Should Not Have Been Issued, ACLU Says

Affiliate: ACLU of Colorado
December 6, 1999 12:00 am

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DENVER — The no-knock search warrant that authorized a Denver police team to enter the home of Ismael Mena on September 29 should never have been issued, the ACLU said today.

Mena was shot and killed by SWAT team officers as they entered his home to search for illegal drugs. No drugs were ever found.

The American Civil Liberties Union of Colorado said that the affidavit of the investigating officer did not provide enough information to permit the judge to conclude that either drugs or guns would be found on the premises.

“If the government officials who authorized the warrant had followed the law, Ismael Mena would be alive today,” said ACLU of Colorado Legal Director Mark Silverstein. “The judge should have ruled that officer’s affidavit did not provide sufficient facts to justify a search.”

“Moreover, even if a search was justified — and it was not — the officer’s affidavit did not provide the additional information that is necessary for a no-knock warrant.”

A ‘no-knock’ warrant, the ACLU said, allows the police to enter a home without announcing themselves, typically in an effort to obtain evidence that could easily be destroyed or disposed of.

According to the ACLU, the affidavit for the search of Mena’s home was deficient in three respects. First, the investigating officer relied entirely on the word of an informant that he labeled as “reliable.”

“The officer’s affidavit provides no facts to support his view that the informant was reliable.” Silverstein said. “The Fourth Amendment requires that police officers provide the facts to an independent judge. It is the judge, not the police officer, who is supposed to evaluate whether the facts justify a warrant.”

“In this case, however, the judge was forced to accept the police officer’s conclusion about the informant’s reliability. Thus, it was the investigating officer, not the court, who decided that the informant had previously been reliable.”

Second, the affidavit failed to provide any information to suggest that drugs would be found on the premises, and indeed, none were found. According to the ACLU, the police officer reported only that the informant purchased a rock of cocaine in the residence. “Nothing in the affidavit suggests that the informant provided any evidence that additional drugs would be or could be found in the residence,” Silverstein said.

Finally, the affidavit failed to provide the additional facts necessary before a no-knock warrant can be issued.

“The officer asserted that guns are commonly found in homes when search warrants are served,” Silverstein said. “That generalization says nothing about the potential danger that police would face if they knocked on the door of this particular house.”

While any request to search a home must be evaluated with care, the ACLU said that judges should be especially wary of requests for no-knock warrants.

“No-knock warrants pose a danger to the lives of police officers as well as innocent civilians,” Silverstein said. “Many Colorado residents legally own firearms, and Colorado’s controversial ‘Make My Day’ law increases the risk to police.”

“If police do not successfully communicate their identity in the split-second when they kick down the door, they are likely to encounter gunfire from citizens who believe they are justifiably defending their homes from lawless intruders.”

In 1997, the Supreme Court unanimously held that a warrant to search for drugs does not automatically justify a no-knock entry.

“The Supreme Court requires facts that are based on the specific case and the specific home to be searched,” Silverstein said. “Police cannot rely on the easy generalization that a drug case means that the suspects inevitably will start shooting or attempt to destroy evidence. The warrant in this case, however, was based on the precise stereotype that the Supreme Court unanimously rejected in 1997.”

The Supreme Court’s unanimous decision that drug warrants do not automatically justify no-know entry is available online at: http://supct.law.cornell.edu/supct/html/96-5955.ZS.html.

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