The Austin Chronicle

http://www.austinchronicle.com/daily/news/2014-02-20/whos-that-not-knocking-on-my-door/

Who's That Not Knocking On My Door?

By Jordan Smith, February 20, 2014, 9:15am, Newsdesk

It was nearly 10pm on April 28, 2009, when the front door to the San Antonio home of Lindsey Bishop and Carolyn Clark exploded inward. On the other side of the door were seven plainclothes (and one uniformed) police officers there to execute a search warrant.

Earlier that day, San Antonio PD narcotics Detective Tony Arcuri had been told by an allegedly reliable confidential informant that a man named “Randy” was cooking meth in, and selling it from, the home.

Although Arcuri's basic investigation into the tip quickly revealed that only Bishop and Clark had any official ties to the home, he nonetheless sought, and received, a warrant to search the premises. To do so, Arcuri and his team opted to employ the so-called "no-knock" approach – bashing through the door without saying a word about who they were, or why they were there.

The result: no meth lab, or drugs of any kind, were found inside the home and neither woman had any clue about a guy named Randy.

In the wake of the raid the women contacted the Texas Civil Rights Project and sued Arcuri and the city of San Antonio for violating the women's Fourth Amendment right to be free of unlawful search and seizure. Although a district judge initially dismissed the suit, a three-judge panel of the notoriously conservative 5th U.S. Circuit Court of Appeals reversed that decision, and the city eventually settled the case.

In the course of the lawsuit, TCRP received some fairly disturbing information: During a deposition, SAPD Chief William McManus defended the decision to execute the search without first announcing that it was the police there with a warrant – the general requirement to conduct a legal search. In situations involving small amounts of narcotics, "you're probably not going to find too many police investigators that are going to knock," he said. "They're not going to do it."

Indeed, according to a report released Tuesday morning by TCRP, in 2008 and 2009, 85% of SAPD drug warrants were executed as surprise, no-knock raids; in 2010, the figure rose to 92%.

While no-knock raids are legally permissible under certain exigent circumstances, no such circumstances existed in the case of the Bishop and Clark raid, the 5th Circuit ruled, reiterating in a tersely worded opinion that surprise invasions should be the exception and not the rule, and that in order to justify such a search, police must be able to articulate case-specific circumstances that would satisfy constitutional protections.

That, in part, got TCRP wondering how police agencies in Texas determine whether a no-knock raid should be used. Do Texas police agencies have policies outlining the use of no-knock warrants?

According to the TCRP report, the answer to that question is, no. Using the state's open records law, TCRP asked 161 of Texas' largest policing agencies (sheriff and municipal PDs) for their policies regarding execution of no-knock warrants. In response, TCRP found that only 53 departments actually have a written policy about when no-knock entry is permitted – just 30% of agencies included in the requests. And only eight of those departments have a policy that requires case-by-case analysis before allowing police to conduct a no-knock search.

Included in the 108 agencies who have no written policy on conducting no-knock raids is the Travis County Sheriff's Office, TCRP's Executive Director Jim Harrington said. In an email, TCSO spokesman Roger Wade said that while there isn't a written policy, the TCSO has a written Standard Operating Procedure "on how to conduct the execution of a search warrant including no-knock search warrants." The office's SWAT unit "trains and conducts search warrants based on that SOP," he wrote.

The Austin Police Department has a written policy that covers the execution of search warrants generally, and that document is public, but like the TCSO, SOPs that detail specifics about how police in different units actually execute warrants "are not public" because they are "law enforcement sensitive due to the tactics involved in high risk search warrants," APD spokeswoman Anna Sabana wrote in an email. But she could confirm that the APD does have a "no-knock search warrant SOP in place."

Of course, having a procedure and ensuring, for the public, that the procedure comports with constitutional protections are two different things.

For Harrington, it remains important that police agencies have on the books, and for public consumption, a policy that holds police accountable to Fourth Amendment protections – including those reiterated by the 5th Circuit in the Bishop/Clark case and that cover requirements for conducting no-knock raids. The right to be free from illegal search and seizure "is a law – a constitutional law," Harrington said. The issue now is "getting people to adopt a policy that is proactive."

Indeed, there have been a handful of questionable raids in Travis County that raise questions how police execute search warrants, even in cases where police say they have announced their presence. In 2001, TCSO Deputy Keith Ruiz was shot and killed while assisting the Capital Area Narcotics Task Force in executing a knock-and-announce search warrant at the Del Valle home of 23-year-old Edwin Delamora. Members of the raid party said they announced their identity and presence before breaking into the home Delamora shared with his wife and children; Delamora, who had limited English proficiency, said he did not know who was at the door when he fired a single bullet through a small window. That shot killed Ruiz. Delamora was convicted of capital murder and sentenced to life in prison.

Also in 2001, Austin Police used a flash-bang grenade to shatter the windows in the home of grandmother Maria Flores. The SWAT team held her at gunpoint while officers searched her home for cocaine; in fact, the house they were looking for was the one next door.

In December 2001, the TCSO SWAT team, conducting a no-knock raid not far from where Ruiz was killed during the Delamora raid, shot and killed 19-year-old Tony Martinez who rose from the couch where he was sleeping when the officers burst into the home. Deputy Derek Hill, who killed Martinez, was subsequently no-billed for the murder by a Travis County grand jury.

And in 2007, Austin Police Detective Aaron Bishop shot 72-year-old Felix Rosales during an early-morning drug raid at his Montopolis Neighborhood home after Rosales allegedly shot APD Detective Robert Benfer in the foot. Police say they repeatedly announced themselves before using a ram to enter Rosales' house, though questions remained about whether Rosales understood what was happening at his home before dawn on that rainy and windy fall morning.

More recently, in December 2013, nine officers with the Burleson County Sheriff's Department conducted a raid at the home of Henry Magee near Sommerville. Acting on a tip that Magee was operating a major pot-growing operation, the officers conducted a nighttime no-knock raid. Startled by the intruders, Magee shot and killed Deputy Adam Sowder. No grow operation was found and ultimately a grand jury declined to indict Magee for the killing – an outcome that some suggest is indicative of public disapproval of no-knock raids.

Certainly, executing a search warrant at a private residence is among the most dangerous of police operations precisely because it is difficult to know what is happening behind a closed door. As such, even in the best-investigated cases and most carefully conducted raids, things can unexpectedly go sideways. So it is all the more important that police be as transparent as possible about how they decide to use the even-more-fraught no-knock raid, says Harrington. "A lot of what we're trying to do is preventative," by encouraging police agencies to adopt more transparent and straightforward policies, Harrington said. "Avoid these types of situations, and respect people's rights to be secure in their homes."

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