FBI agents conspiring to falsify an affidavit for a warrant is a crime
And we prosecute; it’s the only way to remain free from police oppression
A former Louisville detective pleaded guilty in federal court today to conspiring to falsify an affidavit for a warrant to search Breonna Taylor‘s home — which ultimately led to the woman’s death — and to cover up the false document by lying to investigators, the US Justice Department says.
Who was Breonna Taylor?
Breonna Taylor, a 26-year-old African-American woman, was fatally shot in her Louisville, Kentucky apartment on March 13, 2020, when at least seven police officers forced entry into the apartment as part of an investigation into drug dealing operations. Three Louisville Metro Police Department (LMPD) officers—Jonathan Mattingly, Brett Hankison, and Myles Cosgrove—were involved in the shooting. Taylor’s boyfriend, Kenneth Walker, was inside the apartment with her when the plainclothes officers knocked on the door and then forced entry. The officers said that they announced themselves as police before forcing entry, but Walker said he did not hear any announcement, thought the officers were intruders, and fired a warning shot at them. The shot hit Mattingly in the leg, and the officers fired 32 shots in return. Walker was unhurt but Taylor, who was behind Walker, was hit by six bullets and died. During the incident, Hankison moved to the side of the apartment and shot 10 bullets through a covered window and glass door. According to police, Taylor’s home was never searched.
Walker was charged with assault and attempted murder of a police officer, but the charges were dismissed with prejudice 12 months later. On June 23, 2020, the LMPD fired Hankison for blindly firing through the covered patio door and window of Taylor’s apartment. On September 15, the city of Louisville agreed to pay Taylor’s family $12 million and reform police practices. On September 23, a state grand jury indicted Hankison on three counts of first-degree wanton endangerment for endangering Taylor’s neighbors with his shots. Cosgrove was determined to have fired the fatal shot that killed Taylor. On October 2, 2020, recordings from the grand jury investigation into the shooting were released. Two of the jurors released a statement saying that the grand jury was not presented with homicide charges against the officers. Several jurors have also accused Kentucky Attorney General Daniel Cameron and the police of covering up what happened.
The killing of Taylor by white police officers, and the initial lack of charges for her death, led to numerous protests that added to those across the United States against police brutality and racism. When a grand jury did not indict the officers for her death, further civil unrest ensued.
On August 4, 2022, Hankison and three other officers were federally charged with violating Taylor’s civil rights, unlawful conspiracy, obstruction and unconstitutional use of force.
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What can make an FBI search warrant invalid?
A question that some people have is: “What can make a search warrant invalid?” While “scope of the search” can be an issue, it has more to do with its execution and whether the search was conducted within the stated terms of the search warrant. A “scope of the search” argument only challenges specific evidence seized outside the authorized conditions of the search warrant. A broader argument is to challenge the validity of the search warrant itself. When the underlying justification to establish probable cause for a search warrant is based on materially false statements made by police or when critical information was omitted in the search warrant affidavit of probable cause, then the defendant may have a suppression motion hearing to argue that the search warrant was not valid.
In the landmark case of Franks v. Delaware, 438 U.S. 154 (1978), the United States Supreme Court held that: “Where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment, as incorporated in the Fourteenth Amendment, requires that a hearing be held at the defendant’s request.”
Therefore, if there is a preliminary showing that a police officer made false statements in the search warrant affidavit, either knowingly or intentionally or with reckless disregard for the truth, then a suppression hearing may be held. And if it is established during the suppression hearing that the police officer who requested the affidavit of probable cause committed perjury or a “reckless disregard for the truth” regarding a statement on which the probable cause finding was based, then the search warrant may be deemed invalid and any resulting physical evidence may be suppressed as “Fruit of the poisonous tree”.
If the FBI lie to get a search warrant, can you sue?
Police have qualified immunity. But not if they lie.
This rule comes from a Supreme Court case, Franks v Delaware, that give us the right to what is commonly referred to as a Franks Hearing.
A defendant can request a hearing to dispute the facts that got him arrested. The goal is to show that in this situation, there was no probable cause to arrest him.
A defendant has a right to dispute false information or details that were left out to mislead the judge and get him to issue the warrant. If the judge believes the police committed perjury or were reckless about the facts, the warrant is voided.
A cop who lies to get an arrest warrant or a search warrant — and this does happen — is depriving someone of the constitutional right to due process. The cop exposes himself to personal liability under 42 U.S.C. § 1983. Arrest warrants must be based on probable cause. Nothing else.
Monetary relief plus legal fees are awarded to plaintiffs who win a constitutional due process lawsuit. Honesty is the best policy. When a cop lies, yes, you can sue.
Warrants are based on misstated evidence or outright lies
According to the New York Times, when warrants are based on misstated evidence or outright lies, the consequences can be disastrous. Prosecutors say that’s what happened in Ms. Taylor’s case.
On the day before police officers shot and killed Breonna Taylor in her apartment in Louisville, Ky., a detective tried to persuade a judge that a former boyfriend of Ms. Taylor’s could be using her home to stash money and drugs.
The detective, Joshua Jaynes, said the former boyfriend had been having packages sent to Ms. Taylor’s apartment, and he even claimed to have proof: a postal inspector who had confirmed the shipments. Mr. Jaynes outlined all this in an affidavit and asked a judge for a no-knock warrant so that officers could barge into Ms. Taylor’s home late at night before drug dealers had a chance to flush evidence or flee. The judge signed off on the warrant.
But this week, federal prosecutors said Detective Jaynes had lied. It was never clear whether the former boyfriend was receiving packages at Ms. Taylor’s home. And Mr. Jaynes, the prosecutors said, had never confirmed as much with any postal inspector. As outrage over Ms. Taylor’s death grew, prosecutors said in new criminal charges filed in federal court, Mr. Jaynes met with another detective in his garage and agreed on a story to tell the F.B.I. and their own colleagues to cover up the false and misleading statements the police had made to justify the raid.
Amid protests over Ms. Taylor’s killing, much of the attention has focused on whether the two officers who shot her would be charged. But the Justice Department turned most of its attention on the officers who obtained the search warrant, highlighting the problems that can occur when searches are authorized by judges based on facts the police may have exaggerated or even concocted.
“It happens far more often than people think,” said Joseph C. Patituce, a defense lawyer and former prosecutor in Ohio. “We are talking about a document that allows police to come into the homes of people, oftentimes minorities, at all times of night and day.”
Ms. Taylor is far from the first person to die in a law enforcement operation authorized on what prosecutors said were police misstatements.
In Houston, prosecutors accused a police officer of falsely claiming that an informant had purchased heroin from a home in order to obtain a search warrant in 2019; officers killed two people who lived there during a shootout when they tried to execute the warrant, and only after that did the police chief at the time, Art Acevedo, say there were “material untruths or lies” in an affidavit for the warrant that led to the raid. The officer pleaded not guilty and the case is still pending.
In Atlanta, police officers barged into a home and fatally shot a 92-year-old woman, Kathryn Johnston, in 2006 after an officer lied in a search warrant affidavit about an informant buying drugs from her home.
And in Baltimore, a federal judge sentenced a detective to two and a half years in prison last month after prosecutors said he had lied in a search warrant affidavit about finding drugs in a man’s truck in order to justify a search of the man’s motel room.
Judges often rely solely on the sworn narrative of police officers
Judges often rely solely on the sworn narrative of police officers who apply for warrants, meaning the police can carry out potentially dangerous searches targeting innocent people before their affidavits are ever challenged.
The Supreme Court has ruled that when the police knowingly or recklessly include false statements in search warrant affidavits in cases where there would otherwise be insufficient cause, any evidence recovered cannot be admitted in court. False statements often come to light if arrests are made, as defense lawyers challenge search warrants in court.
A number of deficient affidavits may never be closely scrutinized, legal analysts say, because defendants have agreed to plead guilty for other reasons.
FBI agents might face federal charges, just like any corrupt police officer
Mr. Jaynes pleaded not guilty to the federal charges on Thursday and has said that he was relying in part on information from another officer when he prepared the affidavit.
Officers who provide false information under oath when preparing search warrant affidavits may take short cuts, Mr. Clay said, because they believe they already know the outcome of the case but do not yet have enough evidence to support the warrant.
“The most extreme example is when they are just dishonest, even though they are under oath,” Mr. Clay said.
Ed Davis, the former Boston police commissioner, said the consequences of lying on a search warrant could be severe.
“It’s tragic when you see police falsify information to obtain a search warrant, and it is also dumb,” Mr. Davis said. “Every one of those search warrants can turn into a disaster.”
In Ms. Taylor’s case, the prosecutors said that another detective, Kelly Goodlett, whom the department moved to fire on Thursday, had also added misleading information to the affidavit, saying that Ms. Taylor’s former boyfriend had recently used her address as his “current home address.” Prosecutors charged Detective Goodlett with conspiring with Mr. Jaynes to falsify the warrant.
Mr. Jaynes has admitted that he did not personally verify the information about the packages with a postal inspector. He has said he was told by a sergeant about the packages, and believed that was enough to back up his claims in the affidavit.
“I had no reason to lie in this case,” he told a police board in Louisville that was considering his firing last year.
In the federal indictment against Mr. Jaynes, however, prosecutors charged that this claim, too, was false, and that the sergeant had actually told Mr. Jaynes twice that he did not know about any packages being sent to Ms. Taylor’s home for her former boyfriend.
The judge who signed off on the warrant for Ms. Taylor’s apartment, Judge Mary Shaw, declined to comment through an assistant on Friday, noting that she could be called to testify in the criminal case against the officers. Judge Shaw is up for re-election in November, and The Louisville Courier Journal reported that she was the only one of 17 incumbent Jefferson Circuit Court judges to face a challenger for her seat.