Broken door, broken promise: Police renege on pledge to ask judges for permission in no-knock raids
WORCESTER – After a 2015 “no-knock” SWAT raid that found a shaken family at gunpoint instead of the targeted criminal, state police vowed to seek approval for raids from a judge instead of a clerk-magistrate.
With one exception, that critical judicial oversight is not being done in Worcester County, a review of court records by the Telegram & Gazette shows.
State Police assert that their protocols are now “among the most rigorous of any law-enforcement agency in the country,” adding that Col. McKeon, the superintendent, reviews the warrants before they are executed.
“There is a heightened sense of review on these types of warrants now,” Col. McKeon said April 15, noting all warrants are forwarded to the district attorney’s office for review.
Bringing the warrants to a judge, however, would have ensured that the ultimate arbiter of their legality scrutinized them before their execution. State police declined to say why they reversed course on the external control, and also declined to discuss an apparently ongoing practice of securing no-knock warrants to seize marijuana, which voters legalized last November.
The policy changes were prompted by an August 2015 SWAT raid in which police broke down the doors of an apartment in Worcester looking for a man and two illegal guns, but instead found a frightened family. It was the same type of high-risk raid that, according to a recent investigation by The New York Times, has led to the deaths of at least 81 civilians and 13 law enforcement officers since 2010.
“I was encouraged that something good would come out of this horrible thing,” Marianne Diaz, who was roused nude from her bed at gunpoint, said Wednesday. “I’m really afraid that someone is going to get hurt worse than us by the raids they’re doing.”
Impetus for change
Ms. Diaz was 23 when a Worcester SWAT team, serving a warrant obtained by state police, burst into her Hillside Street apartment on a steamy August morning. The target of the raid had moved months ago, but police were apparently unaware.
Ms. Diaz, who has filed a lawsuit, maintains Worcester SWAT, who made the initial entry, treated her harshly during the raid, swearing and waiting minutes before allowing her to cover up. They left without an apology, she says, leaving behind mental scars for her and her young daughters that outlasted the physical mess.
In the days after the raid, the warrant that authorized it came under scrutiny. It was approved by an assistant clerk despite the fact that its applicant, Trooper Nicholas E. Nason did not conduct surveillance on the home or attempt to explain in his affidavit why his research showed that Ms. Diaz, who he noted had no record, was listed as living at the address in both RMV records and electricity bills.
The warrant relied primarily on the word of a confidential informant to establish the target’s residency, along with noting relatives of the man were found there during a separate raid 11 months earlier.
Experts told the T&G the warrant, although not comprehensive, was legally sufficient. A state police review of the process released in January 2016 found Trooper Nason broke no policies, but suggested a number of policy changes that could be “implemented quickly across the agency to avoid situations such as the one under review here.”
One of the most prominent changes, announced in a state police press release in January 2016, was a requirement that any no-knock warrant be approved by a judge instead of a clerk-magistrate. The American Civil Liberties Union opined that while the changes did not go far enough, they were a step in the right direction.
“Many clerk-magistrates, although talented, are not necessarily attorneys,” Peter Elikann, a Newton criminal defense attorney who serves on the criminal justice section of the Massachusetts Bar Association, noted at the time.
Yet a T&G review of no-knock warrants in all 10 courts in Worcester County shows that of the 10 no-knock warrants issued to state police since 2016, only one was reviewed by a judge.
Brendan T. Keenan, first assistant clerk-magistrate in Worcester’s Central District Court, said last week he was never asked to accommodate the change.
“I read that in the paper,” he said of the pledge. “That’s the only place I heard it.”
Clerk-magistrates in Fitchburg and Leominster, the only other two courts that have issued no-knock warrants to state police since 2016, said they also had never been asked to kick the warrants up to a judge.
“I can’t answer questions on behalf of the trial court,” Patrick J. Malone of Fitchburg said.
The Trial Court, which oversees the courts, did not answer questions about whether it had anything to do with the publicly announced change getting scrapped. Spokeswoman Erika Gulley-Santiago confirmed state police met last year with the Trial Court to discuss the issue, but declined to say the outcome.
The law also allows temporary assistant clerks to issue search warrants. Rahsaan D. Hall, director of the ACLU of Massachusetts’ Racial Justice Program, said it was concerning that such a shift in policy would be shelved without explanation.
“The fact that an assistant clerk-magistrate can sign off on a no-knock warrant doesn’t negate the fact that there was a perception that there would be a higher level of scrutiny given to these warrants by the judge,” he said. “There’s obviously a reason why they felt it was an appropriate thing to do, so to turn back on that without a determination as to why leaves a lot of questions.
“Sometimes,” he added, “people say things because of political expediency.”
But Daniel J. Hogan, clerk-magistrate of the Boston Municipal Court and head of the state professional association for magistrates and assistant clerks, said police did give the idea real consideration.
“They did make some efforts, but I think, after they had an opportunity to reflect, they said, ‘Maybe that’s not the best course of action for the purposes of public safety.’ ”
Mr. Hogan made a spirited case for why clerk-magistrates are just as qualified, if not more so, than judges to approve search warrants. He noted that assistant clerks, in particular, deal with warrants every day, as opposed to judges - particularly on-call judges - who might not deal with search warrants frequently.
Mr. Hogan said logistics may also come into play. Getting a warrant to a judge takes longer, he said, and at night, could require detectives to travel long distances to an available judge’s home.
“It took an arrow out of their quiver,” Mr. Hogan said of the shift.
Mr. Hogan said state police always have the discretion to go to a judge for a warrant if they wish; it’s not a decision up to the Trial Court.
Two judges in Worcester’s Central District Court did not return calls on the subject this week.
Isaac Borenstein, a retired Superior Court judge of 16 years, pushed back against the idea that clerks would be more qualified than judges to review search warrants.
“This is the day-to-day bread and water of judges,” said Mr. Borenstein, adding that it is not unusual for police to eschew judicial review.
Mr. Borenstein said he could see logistical concerns as the cause, recalling times an officer would show up at his home and he’d tell them to get comfortable.
“Have a seat. Have some tea,” he would say, because he intended to scrutinize the affidavit as long as it took.
Mr. Borenstein also said there are judges who are on call 24/7, and that if a judge didn’t feel qualified to review a search warrant, there are other options that judge can call.
“For something this important, it makes sense for the state police to say, ‘We’re going to go to judges,’ ” he said. “Why they aren’t doing it, I have no clue.”
“When they change, we’ll change”
Nine of the 10 no-knock warrants examined by the T&G were signed by assistant clerk-magistrates; in six of the cases, that person had no law degree.
Mr. Keenan, who oversees Central District Court, said the clerks who touch search warrants in his court are trained and qualified.
“If I thought someone didn’t know how to do a search warrant properly, they wouldn’t be doing it,” he said.
Mr. Keenan said he did not go back and examine the Hillside Street affidavit but maintained his clerks follow the law. There are no requirements that police conduct surveillance on a home or determine whether children live there prior to serving a no-knock warrant.
“We just follow the court rules and the law,” he said. “When they change, we’ll change.”
Brenda Seaver, the assistant clerk who signed the Hillside Street warrant, declined a request for comment through a Trial Court spokesperson. Ms. Seaver has a law degree.
Edward W. McIntyre, a Clinton attorney and former president of the Massachusetts Bar Association, said he believes change in public policy is sorely needed.
Most of the 10 no-knock raids conducted by state police in the county since 2016 sought drugs. Mr. McIntyre said he is against the idea of SWAT raids to net drugs because he does not believe the ends – getting contraband or dealers off the street – are worth the risks.
“Do we put good people’s lives – and I’m talking about blue lives – at risk for some suspected drugs in an apartment?” he asked. “It’s not hypothetical, it’s a real issue across the country.
“We have dead police officers, we have ruined lives, we have widows, we have children without mothers and fathers ... because of some imprudent decision made by somebody who may be conditioned by the war on drugs.
“They haven’t stepped back and said, ‘What’s worked and what hasn’t worked?’ ”
Worth the risk?
Three of the 81 deceased civilians in the Times report were from Massachusetts, including Eurie Stamps Sr., a 68-year-old grandfather killed accidentally during a 2011 Framingham SWAT raid in which he was not the target. Framingham disbanded its SWAT team in 2013 and agreed to a $3.75 million settlement last September with Mr. Stamps’ family.
“Why would you run into a gunfight?” the Times quoted Robert Chabali, retired assistant chief of police in Dayton, Ohio, as saying. “If we are going to risk our lives, we risk them for a hostage, for a citizen, for a fellow officer. You definitely don’t go in and risk your life for drugs.”
Yet the use of these high-risk warrants persists across the country, and in two of the 10 state police no-knock warrants examined by the T&G, the substance police were looking to net was, or soon would be, legal in Massachusetts.
“Marijuana, a Class D controlled substance, as defined by M.G.L. Ch. 94C,” Trooper Nason – the same officer who raided Ms. Diaz’s home – wrote as the property to be seized for a raid of a Worcester home in January.
Neither Gov. Charlie Baker, Public Safety Secretary Daniel J. Bennett, District Attorney Joseph D. Early Jr. nor Attorney General Maura T. Healey returned calls to a reporter this week seeking comment on whether it was good public policy to conduct no-knock raids seeking a substance deemed legal by voters.
Mr. Bennett was not in the office this week, his spokesman said. His department, in response to several queries about its agency’s failure to institute a publicly announced policy change, released a statement that made no reference to the question.
“The administration is pleased that the Massachusetts State Police have instituted several measures to strengthen their policies, oversight and collaboration with prosecutors to ensure rigorous review standards are in place for these types of search warrants, and is confident they will continue to evaluate their effectiveness for other necessary changes going forward,” the statement reads.
Although state police have applied for 10 no-knock warrants since 2016, that does not mean they knock down doors every time.
In at least two cases, statement of facts from subsequent arrests show police found peaceful ways of making entry.
In the January search for marijuana, for instance, police confronted the target, a suspected gang member informants said carried a firearm, outside his home. Upon being shown the search warrant, the man gave police the keys to his home, the record shows.
Inside, police found four people who did not resist, along with less than an ounce of marijuana “packaged for sale.” They also found a handgun and various ammunition; they arrested the target on firearm charges and a charge of possession of marijuana with intent to distribute.
Police conducted another no-knock raid targeting a large-scale marijuana distribution operation Dec. 7, 2016, a week before marijuana became legal in the state. The method of entry was not clear in the statement of facts for that case, but police seized a .45 caliber handgun along with 86 pounds of marijuana and about $75,000 cash, according to court records.
Inside the apartment, police said, was the target of the warrant, his wife and their infant child. No resistance was mentioned.
Mr. McIntyre applauded the troopers who found other ways to execute their no-knock warrants. Why risk life and limb, he asked, when arrestees are often granted bail and back on the street?
If doors are to be kicked in, he said, prosecutors should be required to sign the affidavits, and judicial review should be mandated.
“I want a colloquy with a judge, so the question is asked, ‘Is there truly a need?’ There is nothing in your toolbox you can use other than deploying this force for marijuana or cocaine? Why?
“We may lose some people,” Mr. McIntyre said. “By God, we better make sure that we have proper checks and balances.”
“Neutral and detached”
But Mr. Hogan said such a colloquy is not even possible. When examining a warrant, questions of the affiant are not allowed, he said - it must rest only on the wording contained in the “four corners” of the document.
“We are neutral and detached,” he said, and are only charged with determining whether the affidavit meets the legal requirement of probable cause. A no-knock warrant can issue, he said, if officers prove it’s more likely than not the occupant would put up resistance or get rid of evidence.
The prevailing argument of police in favor of no-knock warrants is that they give officers the element of surprise to catch dangerous criminals before they can arm themselves. In the affidavits examined by the T&G, officers generally reported the targets they sought had either been seen by informants with guns or were known gang members.
The Times report found, however, that the violent method of entry, coupled with the often early morning execution, leads in many cases to shootouts that might have been avoided had officers attempted to find another way.
Mr. McIntyre said he believes the issue needs to be pressed with people in the executive branch, such as Mr. Bennett and Mr. Baker.
Mr. Baker, questioned about the Hillside Street raid in August 2015, stated that every warrant “involves a decision that’s made by a judge, as it should be,” and went on to say that because of that he had “no problem with the variety of options” available to police.
Hector E. Pineiro, who is suing state and Worcester police on behalf of Ms. Diaz, said he believes there needs to be much tighter restrictions on the issuance of no-knock warrants.
“I said it then, I say it now – you should only use these no-knock warrants in very exceptional circumstances,” he said, and only if children and other innocent people are not put in harm’s way.
“This is not a problem that you can leave to clerk magistrates to solve,” he said. “It’s not fair to them, and it’s a complete abdication by the Trial Court of not stepping in and making sure some very clear guidelines are set before these search warrants are issued.”
The Trial Court did not respond to a question about whether it could legally instruct clerks to tighten their restrictions surrounding the issuance of no-knock warrants.
Ms. Diaz said she sees hypocrisy on the part of police on the issue.
“They called us liars,” Ms. Diaz said, referring to comments from former Worcester Chief Gary J. Gemme contradicting her account.
Ms. Diaz’s family left the Hillside Street apartment following the raid after missing work and falling behind on rent. She said her family is “getting over” what happened and trying to move on.
“We don’t talk about it at all,” she said. “We just try to forget about it, like it didn’t happen.”
Contact Brad Petrishen at email@example.com. Follow him on Twitter @BPetrishenTG
According to the Massachusetts State Police, in January 2016 the department implemented five measures to enhance oversight of the planning and execution of “no-knock” search warrants. These were:
‒ Enhancing the notification process to department supervisors and command staff that an operation plan includes a no-knock warrant.
‒ Requiring authorization of a Division of Investigative Services no-knock warrant operation from a deputy division commander (holding the rank of major).
‒ Using the State Police Special Tactical Operations Team for tactical entries required by any operation that results from investigations conducted solely by State Police units.
‒ Requiring that any no-knock entry sought by State Police personnel outside of the Division of Investigative Services be subject to the same scrutiny and protocols as those sought and authorized with the Division of Investigative Services.
All operations plans for no-knock warrants, following authorization by a deputy division commander, are also sent to the Colonel-Superintendent and Deputy Superintendent for review.