Revisit No-Knock Search Warrants
by Bill Simon
To re-cap what was discussed in Part 1 of this series of ‘Legislative Boxers’ ( (if you missed the previous edition,it is here), this is the essence of the basic logical thought process for legislation as defined by how HB-1 has wended its way thru the 2015 Legislature: “Legalizing the use of X in these specific cases will cause many more opportunities for the use of X in all other cases.” (“X” being cannabis oil in this HB-1 example, but “X” can apply to any subject matter in any other bill).
Now, in order to adequately explain the no-knock search warrant issue that these bills mentioned above cover (and, the important note is that we are not talking about “arrest warrants”…but, specifically, no-knock search warrants), I’m going to have to take you down a path where some of the specific issues discussed are unrelated to no-knock search warrants, but, in order for you to understand the entire situation concerned with a) the proposed legislation, b) the existing law, and c) the individuals on the pro-side of this legislation (i.e., the District Attorneys and Law Enforcement entities), I have to take you the long way around.
So, Ladies & Gentlemen, buckle-up, consume a few caffeinated beverages, and brace yourself for one heckuva ride.
First, there has been mention in general conversation and via testimony in front of the senate committee about “exigent circumstances” being approved by SCOTUS (Supreme Court of the United States) in 1997. For clarification for everyone, exigent circumstances is defined in case law to be “circumstances by which a law enforcement officer has a probable cause and no sufficient time to secure a warrant.” Key phrase being “…and no sufficient time to secure a warrant.”
If there is a danger situation or hostages, or whatever…”no sufficient time to secure a warrant” means (…and, before I continue, I wish to reiterate that I am not an attorney, nor do I offer legal advice or guidance in the legal realm…but, I know how to read and I know how to research) the LEO does NOT have the time to apply to a judge for a warrant, no-knock or otherwise. So, in the happenstance of exigent circumstances, those kinds of entry into a home or building are legal, whether they are knock-and-announce, or they are no-knock of any type.
Secondly, I wanted to relay to you a conversation that an associate of mine (i.e., a fellow citizen researcher) of this no-knock subject matter personally had with the Chief Magistrate Judge of…well, it is a county I shall not identify (because, well, you prosecutor gremlins at PAC will race to his chambers and try to get him to unwind these facts he revealed to my fellow researcher).
My associate walked into the meeting with the magistrate judge with a copy of Kevin Tanner’s proposed legislation of HB56, briefed the judge about no-knock search warrants being the subject matter of the conversation, showed the judge how the existing law says that the LEO (“Law Enforcement Officer/ials”) must announce their presence verbally before effecting entry into the building, and then asked the judge “If this law prevents them, why are they happening all over the state, and how is this not illegal?”
And, this is essentially what the judge stated (not in precise wording, but the gist of it): “As a judge, I can issue a no-knock search warrant because we are not bound by that law. But, if the LEOs execute a no-knock warrant, then they are in violation of this law as it now reads.”
So, from this statement, it breaks-down what everyone thought was one continuous action into two distinctly separate components that have never been discussed before. First there is the “authorization” for a NKSW (No-Knock Search Warrant) signed by a judge….and, second, there is the direct action taken by the LEO who make the conscious decision to execute the warrant in violation of current law. Kinda interesting, isn’t it? (Especially in that…kind of cluster-f*** way that law is written and interpreted in this state, right?).
So, in the Habersham County NKSW incident (“Bou-Bou”), the cops did violate Georgia’s 17-5-27 law by executing a NKSW, and their District Attorney ignored that violation and provided cover for the LEOs.
Not only cover for their violation of OCGA 17-5-27…but since the SWAT raid occurred at around 2:00 AM, I would put it that the DA also deliberately ignored OCGA 17-5-26, which simply provides that: “The search warrant may be executed at any reasonable time.“
Hmm…”reasonable time”…what does “reasonable” mean? Well, looking at Kevin Tanner’s fine example of his proposed HB 56, it would appear to mean that a time that is exclusive of what HB56 describes on Line 66 of “It requires execution between 6:00 A.M. and 10:00 P.M.”
So, Kevin Tanner is proposing that any unreasonable time would be 1:00 AM, 2:00 AM, etc. up to 6:00 AM. So, yeah, the Habersham LEOs also appear to have violated OCGA 17-5-26. Where’s that DA, again? Oh yeahhh….he spent his time ignoring the laws and keeping the law out of the hands of the grand jury of Habersham County. (Let me write this down in our mutual notes…”Habersham County DA…incompetent…and possibly corrupt…and…who cannot be relied upon… to…perform…his job in a fair and equitable manner.”)
For the hearing in the Senate committee held last week for SB159, there were two sessions, one held on Monday afternoon and one held on Wednesday afternoon (March 2 and March 4). In both hearings, several people spoke to oppose the bill, one of whom was Attorney Catherine Bernard who spoke on both Monday and Wednesday to help educate the state senators. (Her Wednesday testimony is here).
As much as I encourage people to become more informed about existing law and the proposed new law that SB159 will accomplish (if passed) by encouraging you to watch Bernard’s testimony, my actual focus for this discussion is the testimony offered by the two gentlemen from the Prosecuting Attorneys Council (“PAC”): Gwinnett County District Attorney Danny Porter and PAC Executive Director Charles Spahos.
Because, it is their testimony that smacks of…at minimum, deliberate subterfuge of a) the facts and b) their true agenda.
This is a link to their video-taped testimony: https://www.youtube.com/watch?v=UaVeQ-VmbVk&feature=youtu.be
I encourage you to view it at your leisure, but I am going to start-off by addressing Spahos’s deliberate obfuscation of how he feels something will be interpreted that is in total disagreement with the specific language that is written…and, he also demonstrates how very little he understands the difference between a NKSW and an LEO action taken under exigent circumstances.
If you go to 12:50 time mark where Senator Mike Crane proceeds to ask the PAC-boys a question regarding Section 3 of SB159, Lines 111-114, which reads as follows:
“The failure to comply with written policies adopted pursuant to paragraph (3) of subsection (e) of Code Section 17-5-21 shall be considered a technical irregularity within the meaning of this Code section.”
If you listen to Spahos, Spahos’s answer is, essentially, “Well, that just means if someone violates a technical aspect of their policies, like if their policy says they cannot serve a warrant after 10:00-PM, and they serve it at 10:15 PM, then that’s just a ‘technical violation’ of their policy. That’s what that means.”
No, that is not what that means. Because IF it meant what he said it meant, then that part of this legislation would have to be written as “The failure to comply with technical aspects of serving a no-knock search warrant shall be considered a technical irregularity within the meaning of this Code Section.” AND then they would have to define what parts of the law are merely “technical aspects” like, serving a NKSW at 10:15 PM…or serving a NKSW at 5:45 AM, etc.
If the failure to follow written policy results in the killing of an innocent person, is that just a “technical irregularity?” It is if you accept Spahos’s answer.
Now, want to know how I know Spahos is deliberately lying on that point? People who study human behavior, especially (coincidentally, actually) those people in the law enforcement arena (people who interrogate suspects), and spend a lot of time talking to people…well.they study mannerisms. And, there is a basic mannerism known by lots of folks in that realm: When a person touches their nose while talking, it indicates a lie is either being told, or is about to be told. (here’s a link to one source, and you can find them all over the web).
So, if you start watching at the 12:50 mark…and after Crane asks his question…right at the 14:11 mark, as Spahos starts to talk…he takes his right hand and touches his nose, and then he proceeds to tell a bullcrap story about what the “technical irregularity” means, and it means nowhere near what the formatting of the actual arrangement of those words in Lines 111-114 means. Also, at no time before that point does Spahos, when he is answering any other question, touch his nose.
Furthermore…at about the 14:48 time-mark, Spahos offers two examples of what would actually be exigent circumstances (a child molestation or a violent crime) and, in the case of those exigent circumstances, this statute would not apply…at…all.
I am unable to locate it at the moment, but somewhere out in the media-ether is a quote that was uttered by someone in relation to (I think) the Genarlow Wilson case in the 2006-2007 timeframe that was pretty close to (if not exactly what was said) this: “If the Legislature meant it to say what you say that law means, then they would have written it that way.”
So, in comparison to this issue of what is a “technical irregularity,” if it means what Spahos claims it means in his testimony, then write it to be exactly what Spahos is claiming it means…and do it NOW, before you vote on it. (Mr. Spahos, you shouldn’t have any problem with that, do you? ‘Cause if you do, then, well, you’re going to confirm that whole nose-scratching thing I’ve proposed.)
But…Spahos is small fry in this little drama. Really. Danny Porter is the big fish. And, to understand the situation with Danny Porter’s “testimony”, well you’re going to have to become educated in Porter’s past as a DA in Gwinnett County. I have 4 cases to discuss that are Porter’s cases.
None of the following cases have anything to do with NKSW, but they show a pattern that defies the concept of “justice.”
Case 1: In 1998, Kelly Gissendaner was convicted by a Gwinnett County jury for conspiracy to commit a murder of her husband. Key word being “conspiracy” as she did not actually commit the act of murder. The person who actually committed the murder was her boyfriend at the time, Greg Owen. Owen pleaded guilty and was given a life sentence with parole opportunities, according to this story.
Case #2: On September 15, 2006, a dentist named Barton Corbin pleaded guilty to committing two murders, his wife and a girlfriend several years prior. The plea deal allows Corbin to go to jail and face the possibility of parole in 18 years (though, yes, Mr.Porter declares in this article that he doesn’t think parole will come about for 28 years). BIG takeway from this case is that a guy actually committed two murders, and he pleaded guilty to both of them…and he did not get the death penalty.
I am not here to argue pro- or con- on the death penalty. What I am here to argue is that there appears to be something off-kilter in how justice is meted out in Gwinnett County under Porter’s leadership.
Barton Corbin pleads guilty to actually murdering two people…and he gets life with parole.
Gary Owen pleads guilty to a murder he, in fact, committed…and he gets life with a possibility of parole.
Kelly Gissendaner does NOT commit any murders at all. What she did was actively think about how to get her husband killed, and she convinced someone else to do the killing…and she is getting the death penalty? (Which, though delayed now for two weeks, is still on-tap to be done.)
So, Owen thought about killing someone, and he personally carried it out, and he gets life in prison…and the person who merely thought about killing someone, but didn’t kill someone, gets the death penalty?
Apparently, in Danny Porter’s mind, it’s the “thought about committing a crime” that deserves a worse punishment than the actual act of the crime. Is that about right, Mr. Porter? You think thought crimes should be punished more harshly than actually carried-out crimes? (I mean, hey, if that’s the standard, let me know…and do point me to legislative or case law on that.)
Case #3 (McKinney v. State of Georgia): In this famous demonstration of DA Danny Porter’s inability to understand state law and the concept of proper venue, back in 2006-2007, DA Porter decided that he, as a District Attorney, had the right and the authority to prosecute alleged violations of state ethics laws…laws that were all declared by statute to only ever be under the jurisdiction of the (then) State Ethics Commission. Porter didn’t care what the law was…he was doing a favor for someone in Gwinnett County…or, maybe a few “someones”…someones who all had stakes in a run-off election held in the 2006 primary for a Gwinnett County Commission District seat.
Porter convened a Gwinnett grand jury, indicted Bill McKinney (and his office worker), and took them to Gwinnett County Superior Court for prosecution. McKinney’s lawyers made an argument to the Gwinnett County Judge that Gwinnett was the incorrect venue for the case, and the judge refused to agree with the argument. The lawyers took the case to the Georgia Supreme Court who decided, by a 7-0 decision that the case could not be heard in Gwinnett County, and that the proper venue was, in fact, Fulton County.
In fact, I wrote a bit about this GaSC decision, along with a few other tidbits of the time about this incident regarding Porter that is on the PV-website.
But, that defeat did not stop DA Porter. Because Porter then placed calls to the Fulton County Solicitor’s Office, and tried to get the Solicitor to prosecute. I don’t know if it was a “he” or a “she” but he/she declined. And, Porter also tried to get the Fulton DA’s office to prosecute. Again, Porter was denied “justice” by Paul Howard’s office as well.
THEN…finally…Porter submitted an ethics complaint to the correct venue, that of the State Ethics Commission. And, in a 5-0 decision, the Ethics Commission declined to find probable cause for violation of any state ethics laws that DA Porter had alleged McKinney and Walter to have committed. Some of the basis for that decision was the defense’s citation of a little, teeny-tiny SCOTUS decision from 1995, the McIntyre v Ohio Elections.
Why did Danny Porter ignore state law, and pursue to attempt to destroy someone who, essentially, was engaging in exercising his right to free speech to get the truth out about a guy who…coincidentally enough, won that run-off (Kevin Kenerly, Case #4), but six years later, Kenerly was indicted for taking a $1,000,000 bribe?
And what punishment did Danny Porter agree/argue for Kenerly? A $10,000 fine and 10 years probation…and absolutely no jail time. Yeah…take a $1,000,000 bribe, pay the goobermint $10,000 and serve absolutely no jail time. That’s how “justice” is defined in Gwinnett County in DA Danny Porter’s circuit. Porter indicted, harassed, and harangued Bill McKinney and Nancy Walter for over a year for, actually, exposing info about Kenerly that Porter ignored until he couldn’t ignore it anymore.
What kind of person does it take to be responsible for these 4 separate, incongruous outcomes of justice? Along with not being a lawyer, I am also not trained in any kind of psychiatry or anything related to the medical field…BUT…I do know how to look-up stuff on the Web…and, you know, there are several matches on this website that describes what people with sociopathic traits have that, perhaps, Mr. Porter actually possesses: "People suffering from Sociopathic disorders tend to be superficially charming. They also tend to display behavior which include manipulation of people around them, desire to be in control of everything and everyone around them that usually leads to grave consequences and shallow emotions."
Yeah, that kinda fits, actually. He doesn’t give a hoot about right and wrong (e.g., abusing his power to prosecute ethics laws in his circuit), he doesn’t care about the harm he actually inflicts on people, he has an uneven sense of “justice” (Kenerly outcome, and death penalty of someone who did not actually commit a murder while the guy who did commit the murder will not face the death penalty).
SO…back now to NKSW…when you State Senators heard Danny Porter talking about all he knows and all he claims about NKSW, do you suppose it’s possible he was being rather deceptive to you? Granted, I have no proof of him lying (not even a nose scratch), but, if he is a sociopath, a sociopath of the caliber Mr. Porter would be would never overtly display that he’s lying…he would just look right at you, smile, and pretend he gives a damn about you…all the while holding that little smirk just behind what you see because he knows he’s fooling you…and getting away with it.
You see, to circle back to the “Part 1” of this issue, what do you suppose is going to happen when you take the step to legalize No-Knock Search Warrants? Well, you/we’re going to get MORE of them. A LOT more, in fact.
And, here’s a bit of the issue: There will not be a uniformly applied standard for the policies that are written by all of the LEO agencies. There is NOTHING written in either SB 159 or HB 56 or SB 45 that lays-out point-by-point of what the “standard” needs to be in any LEO agency’s policy manual.
As an example: How many hours of training is required before an LEO is qualified to execute or be a team member of a NKSW? How will they be graded? How often will they need need to be trained? This is all just a blank slate, and left-up to the LEO agency who creates their policy out of thin air.
Here’s another one: WHO will judge the validity of the policies? The people who submit Open Records Requests? Great. What will that do? It won’t mean anything unless someone goes throughout the state collecting copies to determine if there’s any minimal standard being applied or taught.
There is nothing….NOTHING contained in any of these bills that anyone should be comfortable with accepting as an operational law. Again, you pass a law legalizing NKSW, and you will see them issued and executed multiple times more than they are executed now, throughout the state. Want more Bou-Bou events? You’ll get them. Want more David Hooks events? You’ll get them. Want more cops killed? You will likely get them, regardless of how much the LEOs suit-up in SWAT gear.
In fact…as a side thought…David Hooks was mowed-down by Laurens County sheriff deputies in 9/2014…and this is February 2015…no GBI autopsy report has been issued yet on the Hooks incident…but yet, the incident on 1/1/2015 involving a Peachtree City police chief shooting his companion now has a GBI report associated with it. How do those delays in producing reports get resolved? Does the killing of an innocent human being get shoved to the side because, oops! Cops were involved and may have murdered him, and that proof cannot see the light of day?
To try and wind this discussion up, I’d like for the General Assembly to think about what the purpose was of the Bill of Rights that was tucked-in to our U.S. Constitution: It was written to protect people from the government. That is, to protect them from the power of the police.
While there are claims and counter-claims in this process of discussing NKSW this session regarding the Fourth Amendment, in the decision I read from the mid-2000s where the SCOTUS decided that no-knocks were acceptable, I don’t believe that the SC meant that if police execute a no-knock search warrant, that they are allowed to violate the 14th Amendment’s right to Life, and to not take it without due process of law, in the execution of that search warrant. But that is what is happening, both in Georgia, and all over the U.S. (I’m sure Danny Porter thinks this is just another ‘interesting theory’, but, then again, Danny Porter is a probable sociopath who does not care about the rights of anyone else.)
Tell me, something, Legislators: Do you believe that all drug users and dealers deserve to die for their activities? Because, essentially, that is what you are agreeing to when you wish to allow LEOs to execute no-knock/no-announcement entries into homes, and go in “heavy” to…do what? Find the guy dealing in marijuana with (I don’t even know what a lot of MJ is) 10 lbs of MJ in his possession?
And, you claim, LEOs, that someone might be able to flush 10 lbs+ of weed in the toilet in the 15-25 seconds or so that IF you knocked and said “Police, Open-up!” and allowed someone to walk from the far side of the structure TO the door to let you in…that if you don’t do that, then busting-in and potentially one of YOU facing death (because the people inside have no idea of WHO is breaking down their door), that is all worth the potential ERROR you make in either a) busting in the wrong house (’cause you got a tip from one of the hookers your chief visits), or b) shooting someone dead who was IN the house, but not involved in the drug-dealing, and/or c) one of your guys (maybe even a police dog) getting blown-away from someone who would have answered the door and submitted to your authority without the violence?
Food for thought, Folks. Consume heartily.
