In a case that smacks of the good faith exception causing a search of the wrong house that should never have happened, the Mississippi Bureau of Narcotics knowingly raided the wrong house without knocking and announcing. Trial testimony showed that the officers realized before the search the address in the warrant was wrong but decided to go ahead with the raid and search of the wrong house because a judge had signed off on it and it was otherwise authentic. Plaintiffs’ judgment for $50,000 affirmed. Miss. Bureau of Narcotics v. Hunter, 2020 Miss. App. LEXIS 477 (Aug. 18, 2020):
¶1. On April 24, 2015, the City of Vicksburg Police Department (hereinafter referred to as “VPD”) and the Mississippi Bureau of Narcotics (hereinafter referred to as “Bureau”) executed a “no knock” search warrant on the wrong house during a joint-narcotics operation. The task force was attempting to serve a “no knock warrant” on an individual who resided at 525 Feld Street in Vicksburg, Mississippi, but instead put 523 Feld Street on the warrant and went into the wrong house. The wrong house belonged to Henry Hunter and Rita Hunter, who were present at the time of the early morning “no knock” entry. Law enforcement initially detained the Hunters but released them when they realized the error. Before entry on the Hunter’s home, an officer with the VPD told the task force agents they were about to enter the wrong house, but the agents proceeded anyway.
. . .
¶5. On April 24, 2015, at approximately 5 a.m., Bureau agents and VPD agents met at Sherman Avenue Elementary School in Vicksburg for a general briefing. Bureau Agent Evan Storr was the team leader for executing the warrant. As the officers approached the residence, VPD Officer Kimble realized the mistaken address and informed Bureau Officer Storr that the targeted individual did not live at 523 Feld Street. Nevertheless, Bureau Officer Storr proceeded with the “no knock” warrant because 523 Feld Street was the address listed on the search warrant.
. . .
¶ 31. The trial testimony revealed that the Bureau did not follow “standard procedure” in reviewing and returning the search warrants. Specifically, Bureau Officer Whitten testified that Bureau Officer Harris was responsible for verifying the addresses on the search warrants and that he did not perform a thorough check before returning them to Bureau Officer Whitten. In his deposition and at trial, Bureau Officer Harris claimed that the address on the affidavit and warrant was based on information the VPD provided to the Bureau. However, the VPD’s arrest records, which were admitted at trial, showed the suspected drug dealer’s address as 525 Feld Street and not the house next door at 523 Feld Street, which was owned by the Hunters. Further, Bureau Officer Storr admitted that VPD Officer Kimble, who was raised in Vicksburg and knew both the suspect and the Hunters, notified him before entry that they were at the wrong address. VPD Officer Kimble suggested they do a “knock and talk” instead. Ultimately, Bureau Officer Storr admitted that VPD Officer Kimble had notified him of the mistake, but he chose to proceed with the “no knock” warrant on that address because the warrant “was sworn to by another [Bureau] agent and was signed by a judge [and he had] no doubt [in] the authenticity of that warrant.” ¶ 32. The safety and security of one’s home is paramount in a society as ours where the rule of law reigns supreme and government is restrained by the Constitution that created it. “No knock” warrants at night are an inherently dangerous governmental operation. The trial court found the officers acted in reckless disregard by ignoring the evidence clearly before them of the wrong address and yet, despite that knowledge, failed to take any corrective steps to preserve the safety of those involved, including the individuals inside the home that was the subject of the search. Upon review, we find the evidence to be “substantial, credible, and reasonable” so as to support the trial judge’s finding that the Bureau acted in reckless disregard in executing the “no knock” warrant. See Law, 65 So. 3d at 827 (¶44). Accordingly, we affirm the trial court’s judgment.
This case converts a mistake that could have easily been remedied by going back to the judge and having the warrant interlineated with the correct address and the judge initial the change. But no. They decide to proceed to search what they knew was the wrong house and claim that “a judge approved of it, so what?” How could anybody believe that a search warrant for the wrong place should be executed? Or that would be executed in good faith? From the testimony, and reading between the lines, this has all the signs that either they believed the good faith exception would protect them or that they just didn’t care that they were going to violate the Fourth Amendment rights of the innocent homeowner. And what if the innocent homeowner decided to shoot first and ask questions later?
And, the defense is lucky the verdict was only $50,000. Punitives can’t be awarded against governmental entities, at least in § 1983 cases, but it could be against the officers who did it.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)