Tuesday, February 11, 2014

Bad search warrant on no-knock search goes to trial

Here we have a no-knock search gone wrong. A Drug & Gang Task Force investigator in Troy, N.Y. got a search warrant for a residence that his confidential informant had told him was a place to buy drugs. The search turned up nothing. As it happened, the search warrant affidavit did not tell the whole story. The woman whose apartment was searched brought a lawsuit, and the district court denied the investigator's motion for summary judgment. The case will go to trial.

The case is McColley v. County of Rensselear, decided on January 21.  First, let's talk about what went wrong with the search warrant. A confidential informant told the investigator, Riley, that he had gone to McColley's apartment and purchased drugs there. The informant had been reliable in the past. The search warrant affidavit left out two things: first, that McColley lived at that address and the fact that she did not have any criminal history, and second, that surveillance of that location did not turn up any evidence of drug-dealing or other criminal activity. This allows the jury to believe that Riley did not have probable cause to search the property.

By the way, this is what happens when your house is searched under a no-knock warrant:

On July 3, 2008, at approximately 6:00 a.m., McColley was awoken in her home by the sound of the City of Troy Police Department Emergency Response Team (“ERT”) knocking down her door and the explosion of a flash‐bang grenade. Dressed in all black, wearing face masks, and carrying automatic weapons, the members of the ERT screamed for McColley to get on the floor, but as there was not enough space for her to lie on the floor, a member of the ERT instead shoved McColley face down onto her bed.

As she had been roused from sleep, McColley was clad in only a t‐shirt and underwear. She repeatedly requested to cover herself but was repeatedly denied.
The search yielded no drugs. Hence this lawsuit. The Court of Appeals (Pooler, Calabresi and Raggi [dissenting]) agrees that the jury can find Riley liable for the bad warrant. The magistrate who issued the warrant was falsely led to believe that a drug dealer had custody and control of the property. The magistrate did not know that McColley lived there, or that she had no criminal record. And, of course, the magistrate was unaware that surveillance of the property did not turn up evidence of criminal activity. This information  affected the informant's credibility and could have nixed the warrant altogether.

Riley takes up an appeal, arguing that he is entitled to qualified immunity because his actions were objectively reasonable, even putting aside the errors in the search warrant application. The district court disagreed. The Court of Appeals normally can only entertain appeals when the case is over, not right after summary judgment is denied. But it can do so when qualified immunity is denied, on the theory that the defendant is allowed to make the case go away as soon as possible if he acted in good faith. But qualified immunity appeals cannot be entertained if material fact issues exist on the question whether the defendant did act in good faith. That's the case here; there are too many factual disputes to make a decision on paper. This means that the Second Circuit, while it provides guidance on when a search warrant application may lack probable cause, cannot resolve Riley's appeal. Over Judge Raggi's dissent, the case goes to trial.

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