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Are the Warrant Documents Released in the Atlanta Case Forgeries?:
[N.B. I have rewritten this post after the updates became more important than the original.] Radley Balko links to the warrant and affidavit in the recent Atlanta shooting case, and then links to a story in the Atlanta Journal Constitution suggesting, remarkably, that the warrant documents released by the officials in Atlanta may be a forgery:
  The informant, who said he worked with Atlanta police for four years, also told WAGA-TV that he hadn't been to 933 Neal Street. His identity hidden, he told the TV station that one of the drug officers called him soon after the shooting with instructions.
  Quoting the police officers, the informant told Fox 5 News: " 'This is what you need to do. You need to cover our (rear). ... It's all on you man. ... You need to tell them about this Sam dude.' "

  Pennington said investigators were trying to determine the truth. "I don't know if he went in or not," he said.
  . . . .
  Also, even though the affidavit said that the house was outfitted with surveillance cameras, Pennington said the informant had told internal affairs investigators that police officers had asked him to lie about the cameras. Pennington could not confirm whether the cameras existed.
  To add to that, commenter PersonFromPorlock points out that all four of the Judge's signatures on the warrant and affidavit appear — at least at first blush — to be identical. For that matter, the signatures of the affiant appear to be identical, too. Hmm. It looks that way to me, at least — do readers agree? Perhaps it's just a coincidence — the judge just always signed his/her signature the same way, or the photocopy isn't good enough to reveal the differences. But the signatures look pretty much identical, and at least in my experience I haven't heard of a judge or affiant (or both) using a signature stamp for a warrant. I don't want to go all Memogate here, but I wonder if the signatures might help reveal the document as a forgery? I suspect we'll know soon enough.

  UPDATE: Radley has more on the identical signatures here. A few commenters indicate that electronic signatures are used in at least some jurisdictions; if Fulton County is one of these jurisdictions, then obviously that would explain the signature question innocently enough. It wouldn't explain the AJC story, though.

  ANOTHER UPDATE: Radley confirms that in Atlanta, judges sign warrants with an electronic signature.

Related Posts (on one page):

  1. Federal Subsidies to State and Local Governments and the Militarization of Police:
  2. Are the Warrant Documents Released in the Atlanta Case Forgeries?:
Tom Holsinger (mail):
Radley Balko on this:

"At this point, Atlanta police have no good options. They're screwed.

Attack the informant's credibility and you admit that you conducted a high-risk, forced-entry raid based entirely on a tip from an informant you now say is unreliable. You admit you did no corroborating investigation. You admit you didn't even send an officer to check to see if the informant was right about, for example, an external surveillance system. And all of this ineptitude led to the death of an innocent woman, not to mention to three officers getting wounded.

And that's if the guy's lying about the cover-up. If he's telling the truth? Now you're talking about a major-league shit storm. If this guy's telling the truth, not only did the officers originally investigating this case lie, but the officers investigating after the shooting then lied to cover it up. That means you not only have corruption problems with your narcotics officers, but you have problems with your internal affairs unit, the cops who are charged with investigating the other officers."
11.27.2006 10:56pm
OrinKerr:
Two bad options indeed, although it's perhaps worth noting that the first option isn't as bad as the second for the Atlanta police. In the first scenario, the police look really terrible, but as best I can tell this doesn't necessarily mean the warrant was defective or that the search was illegal.
11.27.2006 11:05pm
Hattio (mail):
Under the Aguilar-Spinelli test doesn't the CI have to be reliable?
11.27.2006 11:14pm
Tom Holsinger (mail):
Professor Kerr,

Balko's article has a link to the search warrant and supporting affidavit.

I am not familiar with Georgia law and so cannot tell if the affidavit is insufficient for a no-knock warrant. It states on that point:

The CRI stated that the male in the home "Sam" has several surveillance cameras in the home and monitors them carefully."
11.27.2006 11:15pm
OrinKerr:
Hattio,

Yes, but the Aguilar-Spinelli test was abandoned by the Supreme Court in Illinois v. Gates back in 1983.

Tom,

Thanks, I'll check it out.
11.27.2006 11:19pm
PersonFromPorlock:
Interestingly, if you compare the four examples of the judge's signature on the warrents, they're absolutely identical and apparently duplicated rather than signed. I wonder if he ever actually saw the warrants.
11.27.2006 11:36pm
Tom Holsinger (mail):
Professor Kerr,

You should also reread the posts by law enforcement officers in the weekend's threads on this incident. They admitted it is bad practice to base a no-knock warrant on the unsubstantiated word of even a reliable informant.

There is a difference between defective warrants for evidentiary admissibility purposes, and civil liability for assault or civil rights violation. It might be necessary, in a 42 USC 1983 action, to establish that the Atlanta police had a "pattern and practice" of conducting no-knock searches based on the unsubstantiated word of a single informant.

So law enforcement agencies devise formal policies, which can be honored only perfunctorily, stating that z must follow x and y, to minimize civil liability. It is entirely possible that the Atlanta police have a written policy requiring that no-knock warrants be supported by evidence beyond the unsubstantiated word of a single reliable informant. While ignoring that policy in practice, as here.

We just don't know yet.
11.27.2006 11:41pm
OrinKerr:
Tom,

Remind me -- isn't the "pattern and practice" question about municipal liability raised only after the unconstitutionality of the search at issue is established? My comment was about the facial constitutality of the warrant, which may or may not track good or bad police practice.
11.28.2006 12:01am
MikeC&F (mail) (www):
isn't the "pattern and practice" question about municipal liability raised only after the unconstitutionality of the search at issue is established?

Yes. There are three elements in a Monell action:
1. Policy or custom;
2. Moving force;
3. Rights violation.

If there wasn't a rights violation, then the policy or custom at issue is irrelevant.
11.28.2006 12:10am
David M. Nieporent (www):
I had the exact same observation as Porlock when I reviewed those affidavits/warrant: that signature looks identical on all those documents. If it wasn't cut-and-paste in some way, then he must use a stamp to sign his name.

And I want to repeat what I posted in an earlier thread a little while ago, since the discussion will probably be here:

Incidentally, in another post we debated how hard it was to get a no-knock warrant, with our two law enforcement representatives here claiming it took extensive work to justify such a warrant, and that police had to demonstrate exigent circumstances. I pointed out that this was true on paper, but in real life, the mere recitation of the word 'drugs' would create exigent circumstances for the right magistrate.

Now that we've seen the affidavits, we know the complete evidence of 'exigent circumstances': an alleged $50 drug buy, and the allegation that the dealer had surveillance cameras at the house. (Note that this doesn't make sense, as a matter of logic. If they knocked-and-announced, the cameras would be superfluous. So, "he'll know we're coming, so we can't knock-and-announce"? Huh?)
11.28.2006 12:11am
RainerK:
Perhaps identical signatures of a magistrate - for heaven's sakes, this would be bad indeed.
I am also awaiting any development re the "small amount of mariujana" found. Somehow I'm highly suspicious. Who did that dope belong to? How did it get there?
11.28.2006 12:11am
OrinKerr:
David,

FWIW, I have never heard of a judge signing a warrant with a signature stamp. Has anyone else?
11.28.2006 12:13am
MikeC&F (mail) (www):
There is a difference between defective warrants for evidentiary admissibility purposes, and civil liability for assault or civil rights violation.

It would seem that way, but in practice, there's no real difference. Here's why...

Criminal context:
Let's assume the warrant was defective under the Fourth Amendment. The warrant would only be excluded if the good-faith exception did not apply. If the good-faith exception applies (when a judge signs a warrant, it almost always does absent a showing of material misrepresentations), then the evidence comes in at trial.

Civil context:
You have to prove that the warrant was issued in violation of the Fourth/Fourteenth Amendment to state a prima facie case under Section 1983. To get around qualified immunity, you have to show that no reasonable officer could have relied on the warrant. Or, to use crim law jargon, you'd have to show that the good faith exception did not apply.

So, really, it's the same thing. If the fruits of the warrant can come in during the criminal trial, then there is no case under Section 1983 - since qualified immunity would protect the officers.

(And, of course, if the fruits of the warrant come in, and the fruits are used to convict someone, then Heck v. Humprhey would procedurally bar the person from even filing a civil suit!)
11.28.2006 12:17am
RainerK:
Hmm, the affiant's signatures look identical too and totally illegible.
11.28.2006 12:19am
33yearprof (mail):

Who did that dope belong to? How did it get there?


I suspect it belonged to one of the invading officers and he "planted" it there as part of the cover-up. Instead of a "drop gun," we now have a "drop baggie." Wouldn't be the first time.
11.28.2006 12:29am
David M. Nieporent (www):
Orin,

I haven't heard of one doing that -- but I was trying to think up any other possible explanation besides photocopy (or Photoshop).
11.28.2006 12:38am
PersonFromPorlock:
On the two signatures which appear above the legend "Judge of the MAGISTRATE, FULTON County," the signatures are not only identical but identically positioned with respect to the lines and legend below -- which are also identical. So it looks like the documents were put together using cut-and-paste, not necessarily a bad way to generate forms. But forms with the signature built in may be a little premature.
11.28.2006 12:44am
Tocqueville:
These days it is not uncommon for Judges to use either a stamp or, even more common, an "electronic version" of their signature, which is actually a pdf (including signature line and all) inserted into the document.
11.28.2006 1:29am
Stephen Aslett (mail):
Wow. If I'm not mistaken, a Franks violation gets rid of qualified immunity for a section 1983 claim.
11.28.2006 1:34am
Therut:
So a Judge can sign a warrent and no knock one even with a stamp? I as a physician must sign every order written even for Milk Of Magnesia or Tylenol by hand cause I could be sued. I bet this Judge is not held to the same standard. Leagal Profession heal thyself. Or I should say Sue Theyself.
11.28.2006 2:08am
Ken Willis (mail):
It's now time to change the Illinois v. Gates rule and adopt a simple rule: No-knock warrants shall not be used in drug busts, period. Experience has shown that using no-knock warrants places too many innocent lives at risk and the harm is not out-weighed by the need to enforce drug laws.
11.28.2006 2:23am
OrinKerr:
Ken,

I'm not sure Gates is relevant to the no-knock question, but I suppose the more important issue is, does your view hinge on the belief that the need to enforce the drug laws is not very great? I assume that the public is pretty sharply divided on this question.
11.28.2006 2:41am
jvarisco (www):
I don't see why this is such a big deal. Even if the cops had no warrant and just showed up at the woman's door, she still had no right to shoot them. By killing her they were merely defending themselves. It's important to follow the law - but none of that has any bearing on the woman involved.
11.28.2006 3:02am
Harvey Mosley (mail):
I wonder how many no-knock warrants would be requested by officers or granted by judges if they had no immunity if something went wrong. I'm only talking about no-knock warrants, let them keep their immunity for standard warrants. We'd probably be amazed at how many (or should I say few) no-knock warrants were truly needed if that were the case.
11.28.2006 3:08am
JB:
jvarisco, she had the right to defend her home against invaders who had no legal right to enter. Ergo, if she didn't know they had a right to enter, she had a right to shoot. No-knock warrants are useful for when people inside will be firing back regardless, but are counterproductive in other cases.
11.28.2006 3:10am
Harvey Mosley (mail):
jvaisco-

With a no knock warrant, police don't politely tap on the door and wait to be let in. They enter violently and forcefully. Lots of confusion. It would be easy for the person inside, especially if they weren't drug dealers, to think they were being attacked by criminals. She had every right to shoot them if she believed them to be criminals intent on bodily harm.
11.28.2006 3:15am
Harvey Mosley (mail):
JB beat me to it (also said it better). I guess I need to learn to type a little faster :)
11.28.2006 3:18am
OrinKerr:
Harvey,

It's worth pointing out, I think, that police don't politely tap on the door and wait to be let in with a normal warrant, either. They knock loudly and scream that they are the police. As I understand it, if no one answers after 15 seconds or so, they generally will then (or shortly thereafter) break down the door or enter forcibly some other way. If someone answers, they don't politely ask the person to search; rather, they tell the person who opens the door that they are the police and have a warrant, and then they search the house. That's my sense of the usual practice, at least. (I realize it isn't directly relevant to your comment, but it seemed worth pointing out.)
11.28.2006 3:22am
David M. Nieporent (www):
Harvey, you're right when you say that she might have thought they were criminals, but I don't think you go far enough.

Not to be all politically incorrect, but if they actually didn't have a warrant at all, then it isn't just that she may have "believed" they were criminals; they were criminals. There's no difference between a cop kicking in your door without a warrant (and without exigent circumstances) and a so-called "home invader" doing so.

(I distinguish having a faulty warrant from not having one at all, here.)
11.28.2006 3:45am
OrinKerr:
David,

Are you sure that's right? The likely crimes here are trespass or burglary, and I gather that police trying to execute a search without a warrant are unlikely to be technically guilty of either of these crimes. Or are you thinking of some other criminal offense?
11.28.2006 3:52am
JB:
IANAL, but isn't a search without a warrant and without permission trespassing? And if they take stuff on said warrantless search, isn't that theft?
11.28.2006 4:29am
Beerslurpy (mail) (www):
Self defense comes from the mental state of the defender. Someone that appears to be attacking can be defended against. The legal disposition remains the same, even if it turns out that you were mistaken about the attack. An undercover police officer that pulls a gun and chases a suspect down the street may appear to be a robber pursuing a victim... (actual case in NYC that resulted in the cop being shot by uniformed officers and the purse snatcher getting away)

In FL at least, unannounced LEOs are an exception to the "dont shoot at cops" rule in self defense. The rule exists for precisely this reason- that sloppy police work will inevitably result in them being mistaken for criminals and shot at. It rectifies the problem by shifting the legal burden back to the careless officers.
11.28.2006 4:42am
Beerslurpy (mail) (www):
What I should have said was "whether or not they were actually criminals is irrelevant, so long as she beleived that they were violent criminals."
11.28.2006 4:44am
Beerslurpy (mail) (www):
No JB, its an "unlawful seizure" which you recover through 42 USC 1983. A police officer can be nabbed for theft and trespass when he isnt pretending to carry out his official duties.

A problem with a lot of the laws around police wrongdoing is that they will be raised by criminals as a matter of habit, so the customary way of addressing these complaints has been shaped by encounters with complaining criminals. As frequent as the current abuses are becoming, they are still dwarfed by the volume of relations between criminals and cops. As a result, the burdens are fairly high, without regard to whether the person was an innocent victim of police misconduct or whether they were a criminal who got his arm broken when an officer tackled him after a 3 block chase.
11.28.2006 4:54am
S o t W (mail):
"Assault" seems a nice, obvious candidate for the crime.
11.28.2006 6:20am
TimH (mail):
If the Magistrate was usinga PDF signature, would 15 USC 7001 et seq. apply?
11.28.2006 7:10am
Richard Aubrey (mail):
I'm missing something.

If the cops had to fake the info, or forge the paperwork, then they did it because they didn't have the evidence.

So that means they conspired to do a dynamic entry at a home where they were pretty sure there were no drugs and no drug dealers.

WTF?
11.28.2006 7:25am
_Jon (mail) (www):


Who did that dope belong to? How did it get there?

I suspect it belonged to one of the invading officers and he "planted" it there as part of the cover-up. Instead of a "drop gun," we now have a "drop baggie." Wouldn't be the first time.


In order to determine that, the ceiling, curtains, and windows can be tested for residue. In the event she cooked with it, the oven can be tested.

At that point, however, I think it would be putting more into the hopper - possibly implicating others. Based upon the latest information from the news &tv, it appears the cops (or their co-workers) arranged for the paperwork after-the-fact. Given the magnitude of this situation, I am relieved to see the Chief ask for the FBI to help out.

If they did ask for the CI's help ex-post facto, it begs a really important question - Why were they there in the first place? And a follow-up is - How many other "raids" did these three officers execute like this that didn't result in a death (and unwanted attention). Have they been busting into Atlanta homes and terrorizing citizens on a regular basis? And again - Why? What could they have gained from this old woman's house?
11.28.2006 8:10am
MartyB:
The procedure police use to gain access seems to qualify as "violent and tumultuous entry", which in some jurisdictions is justification for the resident to respond with deadly force.
11.28.2006 8:22am
RainerK:
Re the identical-looking signatures. Don't judges' offices keep a record of which warrants were signed?

Beerslurpy,

"A problem with a lot of the laws around police wrongdoing is that they will be raised by criminals as a matter of habit"

Good point. If I remember correctly that argument was widely and forcefully used to push through changes giving LE more latitude and the accused fewer rights, at least those with genuine grievances. It was during the "war on technicalities" as I dubbed it for myself.
The critics appear to have been right: Grant a right and sooner or later some creative use appears, surprise. The difference, IMHO, lies in who does the using. There is nothing unethical about the accused grasping at every straw, LE and prosecutors are agents of the State. Should be obvious, but isn't to some. So much for Justice Scalia's "new professionalism".
11.28.2006 8:23am
MartyB:
The answer still seems simple to me. Default procedure should be to stand on the porch, ring the doorbell, identify yourself, and state your business. This is not only safer for the officers and the homeowner, but much more important it is observant of the constitutional and property rights of the citizenry whom police are sworn to protect.

There are clearly times when a dynamic entry, complete with battering ram, and submachine guns is appropriate and necessary- but the threshold must be high, and the situation exceptional. To do this routinely is to erode the underpinnings of our free society.

In my humble lay opinion, of course.
11.28.2006 8:42am
Andy Treese:
Along the lines of Tocqueville's comments re: a .pdf signature: I don't know what system APD uses, but the Dekalb County Police (a nearby jurisdiction) use an electronic arrest warrant system which I believe is also used for search warrants. The officer completes the affidavit from a PC terminal, then saves it in a database. He goes to the judge, who pulls the document up on a monitor; they discuss the warrant, and both the judge and affiant sign an electronic pad similar to those at retail stores. The signature is electronically stored with the document, and hard copies of the warrants are printed out.

I don't know if that system would automatically reprint the signatures in multiple places or not, but that would explain the similarities. I doubt the documents themselves were forged - the accuracy of the content, however, is a separate issue.

Given that we're talking about a warrant which might be based upon false testimony, I'm not sure it matters that police were serving a "no-knock" warrant as opposed to a regular one - the issue is that the woman got killed while the warrant was executed. If the information in the affidvait was true, it's a regrettable tragedy. If it's a warrant obtained through misconduct, the officers will face the consequences.
11.28.2006 8:50am
Glenn W. Bowen (mail):
I found this link to the Cato Institute by way of Neal Boortz this morning;

Botched Paramilitary Police Raids
11.28.2006 8:55am
jvarisco (www):
"So that means they conspired to do a dynamic entry at a home where they were pretty sure there were no drugs and no drug dealers."

Except that there were drugs. We have some people asserting that they planted them, but there is no evidence whatsoever of that. Which means that, even if they botched the warrant, there was cause to have one in the first place.

On an intuitive level, I just find it very doubtful that this old woman is sitting there with a shotgun waiting for intruders. It seems a lot more likely that she had to actually go pick it up, which would take at the least several seconds, more than enough for police to identify themselves. In which case she should have known better than to shoot them. She got off several shots before being killed, which shows that the officers did not exactly run in firing.
11.28.2006 10:00am
NYU 2L:
A quick use of Photoshop, modifying transparency, will easily show that the signatures are exactly identical. Could someone do something similar to what was done with the TANG memos, posting an animation cycling between the signatures to make it clear that these were not separate handwritten signatures? The only non-sinister explanation I can think of is if that court uses an electronic signature system like Andy Treese described above (and even in that case, it's hard to believe that they do that for the affiant as well.)

Just when you think this disaster couldn't stink more...
11.28.2006 10:18am
FedkaTheConvict (mail):

Except that there were drugs. We have some people asserting that they planted them, but there is no evidence whatsoever of that. Which means that, even if they botched the warrant, there was cause to have one in the first place.

On an intuitive level, I just find it very doubtful that this old woman is sitting there with a shotgun waiting for intruders. It seems a lot more likely that she had to actually go pick it up, which would take at the least several seconds, more than enough for police to identify themselves. In which case she should have known better than to shoot them. She got off several shots before being killed, which shows that the officers did not exactly run in firing.


jvarisco,

You are either incredibly naive or intentionally obtuse. Which one is it?
11.28.2006 10:37am
TheNewGuy (mail):
If the whole justification and warrant for this raid turns out to have been falsified, these officers should hang... no doubt about it.

The jury's still out on the above question, but something else about this raid bothers me, at least from an AAR standpoint. This only occurred to me yesterday as I was thinking more and more about the mechanics of this incident. In general, I don't like to second guess, so take this for the speculation that it is.

Many teams let narcs do knock-and-announce warrants, but no-knocks are ideally "SWAT only," as the greater danger (that led to asking for a no-knock in the first place) needs a highly-trained entry team. The perimeter team could be regular patrol officers, but the entry team members should be operators. Also, a house-sized structure needs more than three guys to safely clear it... even some apartments may require a half-dozen men.

So why only three non-SWAT-trained, non-SWAT-equipped officers to serve a no-knock warrant on a purported drug-house that is fortified (she apparently had a burglar bar door outside of the normal wooden front door), with a surveillance system in place? Burglar bars are a formidable obstacle, and it may have taken some time to get through that door with standard tools. Also, criminals install surveillance systems and post lookouts for one purpose, and that's for advance notice of raids and ripoffs.

If they see it coming, they'll prepare a welcoming committee for you, so I can see the justification for no-knock dynamic entry (with a stealth approach) if the above were true.

But if the above were true, and I were one of those narcs, I'd be seriously risking my life serving a warrant in that fashion.

It makes me wonder if they didn't know what kind of warrant they were actually serving, and their actions spoke louder than the verbage on their warrant.

Just a thought.
11.28.2006 10:43am
David Chesler (mail) (www):
An undercover police officer that pulls a gun and chases a suspect down the street may appear to be a robber pursuing a victim... (actual case in NYC that resulted in the cop being shot by uniformed officers and the purse snatcher getting away)

Hmm, if the shooters had not also have been cops (and the jurisdiction allowed deadly force in defense of others) would the result have been the same?

(Here in Boston recently a cop shot another cop who was attempting to stop the first from driving home due to the first's being drunk. It's still pending. We're also still dealing with 3 cops who beat a suspect until they realized he was a plainclothes cop. A 4th cop got the worst punishment due to the coverup -- as far as I've seen in the coverage if the beatee had not been a cop there would have been no wrongdoing.)
11.28.2006 10:53am
JB:
Thanks, beerslurpy.

In my nonlawyerly capacity, let me state that I'm appalled that I'm wrong about that. Cops going on private property where they have no right to be ought to be trespassing--Cops taking people's stuff that they have no right to take ought to be theft. It's the warrant that should make these actions legal, not the badge.

Jvarisco is a troll.
11.28.2006 11:17am
r78:
Also odd that the signature on the last page has two different lines below it.

It really looks like the signature, along with a signature line, was cut and pasted above a pre-existing signature line.

I don't know whether such a "signature" is appropriate or not under GA law.
11.28.2006 12:26pm
Tom Holsinger (mail):
The tragedy of Mrs. Johnson's death aside, this has been a vastly entertaining discussion.

Two points. The belated release of the search warrant and supporting affidavits, given the totality of the circumstances, does raise a suspicion that they were prepared, or altered, after the fact.

And my son pointed out that, despite the circumstances, Mrs. Johnson was alert and oriented enough to ventilate three police officers before they got her.
11.28.2006 1:45pm
kelvin mccabe (mail):
Good discussion indeed. I am interested to know, now that the supreme court has ruled that a violation of the knock and announce rule does not require suppression of evidence found, what percentage of normal search warrants (typically involving narcotics)will now be: *knock and yell "police"* while simultaneously busting down the door? The cops retain the element of surprise, since the knock and the door flying open occur at the same time -the officers need not fear evidence will be flushed, and more importantly- it won't be suppressed.

What incentive do officers have to wait for someone to actually come to the door? All this discussion about making no-knock warrants more restrictive, making the evidentiary bar higher, more evidence this type of raid is needed, etc... is all well and good, but if every normal warrant can be executed in no-knock style-with the only repurcussion being someone may get hurt- what ultimate difference will any of these suggestions, if they are actually implemented, have on actual police practice?

In other words, raising the minimum threshold for a no-knock warrant, in a world where not knocking and announcing does you no harm (except for the possibility of someone getting hurt, which is and has been always the case in every warrant execution) what's the point? All the officers need testify at a motion hearing is that they knocked and waited five seconds before ramming the door. Defendant testifies it happened at the same time (or there was no announcement and knock, just a door flying open). Credibility sides with the officer - another body for the penitentiary.
11.28.2006 2:39pm
SeaLawyer:

Also, a house-sized structure needs more than three guys to safely clear it... even some apartments may require a half-dozen men.


Not to get picky, but you need a pretty big structure (bigger than your average house) to need more than 4 people to clear it. 3 people can clear an average sized house in less than a minute.
11.28.2006 2:45pm
SeaLawyer:

Also, a house-sized structure needs more than three guys to safely clear it... even some apartments may require a half-dozen men.


Not to get picky, but you need a pretty big structure (bigger than your average house) to need more than 4 people to clear it. 3 people can clear an average sized house in less than a minute.
11.28.2006 2:45pm
TheNewGuy (mail):
SeaLawyer,

I disagree. SWAT is not something where you want to cheat on the manpower, and unless you've got so many bodies that you're literally tripping over each other, more is better. If you hit a T-junction or have two open rooms on opposing sides of a hallway, I'd dual-flow into each room to avoid having a flank uncovered. Add one man to cover long and another to cover rear and that's six guys. This also doesn't take into account your rear security, and any other team members who might be breaking-and-raking, throwing a distration device on the other side of the house, or making up a second team in the back of the house.

Alternatively, you could have your long-cover man advance past the opposite doorway as your entry team clears one room, but somebody has to secure/cover that doorway while somebody else does rear cover... so that's five guys, but asking one guy to cover more than one area of responsibility at a time divides his attention.

This also doesn't include your breacher or shield man, and your shield guy should have a long gun backing him up. Ever fire a handgun one-handed around a shield while sighting through the viewport?

You might be comfortable doing it with four... but I'd want more guys, and I'd definitely use more than three in any case. Get a guy wounded in that scenario and you're in deep kimchi.
11.28.2006 3:30pm
Tom Holsinger (mail):
If, as now appears likely, electronic judicial signatures are used in this jurisdiction, security and foundation questions arise similar to those about digital-only voting machines.

It might be fruitful for criminal defense counsel to require extended foundational testimony concerning the authenticity of search warrants with electronic judicial signatures, and to challenge the constitutionality of those.
11.28.2006 3:34pm
Thorley Winston (mail) (www):
Um Professor Kerr, since even Radley Balko has admitted that he’s misrepresented the facts (again) on this case and that it’s an electronic signature not a forgery, wouldn’t an update would be in order?
11.28.2006 4:19pm
David M. Nieporent (www):
Um, Thorley, your statement would appear to be a lie. First, Radley never said that it was a forgery -- he raised the same question as Orin. Second, the only thing Radley "admitted" is the same thing posted above in this thread (because he quoted it from this thread)-- that it's possible that there was an electronic stamp.


And Varisco:
Except that there were drugs. We have some people asserting that they planted them, but there is no evidence whatsoever of that. Which means that, even if they botched the warrant, there was cause to have one in the first place.
Except that

1) the only evidence "that there were drugs" is the word of the police,
2) the "drugs" were "a small amount of marijuana," not the cocaine allegedly sold to the CI, and
3) the fact that there were drugs does not mean that there was cause for a warrant
11.28.2006 5:58pm
Actual (mail):
One thing that hasn't been mentioned here came out before everyone involved dummied up was that it took the cops quite a long time to effect entry, because the house was fortified. I interpret this to mean it wasn't exactly a "no-knock" situation and the victim had plenty of warning.

I also agree, as that some people have remarked, that this is a tragedy as well as an intellectual stimulation.

I cannot figure out who stood to benefit, the cops or the informant and how?
11.28.2006 6:31pm
ray_g:
"I cannot figure out who stood to benefit, the cops or the informant and how?"

Informant - $$$ or immunity from prosecution for some other offense
Cops - Publicity for drug bust.

Nationally, there have been way too many of these types of incidents over the last few years, and they all follow the same script - alleged drugs, shady informants, wrong house or no drugs in house, occupants shoot at police and police kill occupant. I mean, if we can, as many places have, prohibit high speed pursuits because they are too dangerous, I think we can also justify prohibiting no-knock drug raids.

To throw another pure speculation into the mix, I wonder if some of the stonewalling (or cover-up) is perhaps because one or more of the wounded cops was hit by friendly fire?
11.28.2006 7:24pm
Bill Dyer (mail) (www):
Whether the signature was pen-and-ink, ink-stamped, or digital is almost certainly irrelevant under any State's law. See, e.g., Article 3, part 4, of the Uniform Commercial Code, esp. § 3-401(b):

A signature may be made (i) manually or by means of a device or machine, and (ii) by the use of any name, including a trade or assumed name, or by a word, mark, or symbol executed or adopted by a person with present intention to authenticate a writing.


Although from a commercial instead of a criminal context, this restates the common law on signatures and endorsements generally.

Thus, the proper question is whether whatever indication of the judge's ruling on the warrant application was intended by him or not, however that intention was manifested. If the warrant is genuinely forged — if it was completely fabricated, whether through a phony pen-and-ink signature or a hacked data cable — then it was not intended by the judge to evidence his assent, and that's another story entirely. But that seems hugely, hugely improbable, since it would assume that the cops aren't only willing to break the law but that they're all fabulously, monumentally brain-damaged in picking a way to break the law that will almost certainly send them to prison.

And whether this judge paid enough attention to the warrant application, or whether judges in general ought to pay more attention, or whether standards for warrants ought to be changed, or whether no-knock warrants are good or bad — these are all interesting questions, but they have nothing whatsoever to do with the fact that these signatures are "suspiciously similar." That's just a complete red herring, and I'm frankly surprised that Prof. Kerr didn't smell it straight off.
11.28.2006 7:36pm
ray_g:
I should have read the newspaper article before commenting. Quoting from the article:
"The 88-year-old woman, whose age was previously reported as 92, wounded three of the officers with a rusty revolver her niece said she had bought her aunt for her protection. One officer was hit three times, including once in the center of his bulletproof vest, while the other two where shot once each. "
"...the woman, described by neighbors as feeble.."

This doesn't pass the smell test. Despite what you see in the movies, hitting something with a handgun, even at close range, is hard under the best of circumstances, even if you practice a lot. So, with possibly 10 shots if it is a 22 revolver (and most 22 revolvers only have 6), 5 to 7 for larger calibers, and in a very stressful situation, this feeble old lady had 5 hits. (I discount the possibility of her reloading. Reloading a revolver is slow process, unless you practice it.) Consider that law enforcement only hit about 1/4 to 1/3 of their shots fired on duty (I don't remember the exact number). So she was really good, or really lucky, or the cops used terrible tactics. Or friendly fire (which is really a subset of terrible tactics). Perhaps all of the above. Or space aliens intervened. Unless there is more detail than has been reported to explain the circumstances of the (quoting the paper) "gun battle", this just keeps looking like (at best) a colossal screw up by the police.
11.28.2006 8:05pm
Bill Dyer (mail) (www):
The ending to my comment above was ungracious to our host, and I regretted it almost the instant I hit the "Post" button (but I was off to an evening engagement and could not post this until now). Prof. Kerr, who's been uniformly courteous to me in our email conversation from time to time, clearly expressed his concerns in his original post, and they were directed to the issue of forgery, not authority or validity of a digital or other non-pen-and-ink signature. I apologize humbly, and admit that if there is any smelly fish here among these commenters, it's me.
11.28.2006 10:17pm
Tom Holsinger (mail):
I agree that this looks more and more like the Keystone Cops doing a circular firing squad.
11.28.2006 10:34pm
Bryan DB:
ray_g,
It's not unlikely as you think for all those hits to be made. One possibility is the Keystone Cops squad, where all the cops were shooting each other. The other possibility is that (if you're the old lady) it's not all that hard to hit on almost every shot if your entire living room is full of people; it would be harder to hit empty space if there were as many people in the house as NewGuy would suggest be there.
11.28.2006 11:01pm
PersonFromPorlock:
Just to clear up a point: in bringing up the matter of the signatures, my concern was that they suggested the review of the warrant was cursory, not that the warrant was forged. I believe this is still a relevant point.
11.29.2006 8:00am
Tom Holsinger (mail):
I have some information.

The officers entered without the man in the lead having the ballistic shield required for a no-knock entry, and the thee officers were hit by a single shotgun round fired by Mrs. Johnson down the hallway. The officers' return fire did not violate any Atlanta PD rules, but most everything else they did was career-ending.

The warrant affidavits seem perjured, but the search warrant itself was allegedly not forged.
11.30.2006 11:11am