It’s hard to explain why the no-knock warrant at Breonna Taylor’s home became a cause celebre. Not that it doesn’t deserve that degree of attention, but it’s hardly the first or only time its happened, that death resulted, that every wrong that resulted in her death was perpetrated by police. Yet this time, it stuck. It entered the public consciousness as well as that of the government to the extent that four cops who were involved in the application for the search warrant are now indicted.
Federal prosecutors accused three officers of knowingly including false information in an affidavit used to justify the raid and a fourth officer of firing blindly into Ms. Taylor’s apartment from outside, sending bullets flying into a unit next door where an unsuspecting family slept.
The indictments unsealed on Thursday do not charge either of the two white officers who shot Ms. Taylor, a Black 26-year-old emergency room technician whose former boyfriend the police were investigating for possibly selling drugs. But the charges are the most aggressive effort yet to hold police officers accountable in a case that has become a rallying cry for the Black Lives Matter movement.
This is a stunning turn of events. In most criminal prosecutions, the defense is left to make a Franks motion to controvert the search warrant, challenging the source, staleness, efficacy and veracity of the allegations made in the application to the judge. Rarely does the motion succeed, not because there aren’t a litany of “lies” in the affidavit, but because they’re “cop lies,” a special breed of artfully vaguely worded allegations creating the appearance of saying something while not quite saying much of anything, yet giving the impression of probable cause when there is barely a fact upon which to rely, peripheral or otherwise.
And then there are the warrant affs that are just complete fabrications, such as “the target was observed handing a glassine bag with a white, powdery substance believed to be narcotics to the confidential informant” on a day when the CI was in Cleveland visiting his parole officer.
You would think that would be enough, but that would mean you’ve never challenge a search warrant. Bear in mind, obtaining a search warrant is an ex parte proceeding. There’s no one to point out its flaws, whether in form or substance. It’s up to the issuing magistrate to do two things: Actually read it, and then actually think about it. Both involve work, for which there is no prize.
At this point, you may fairly wonder two things. First, why would police be so malevolent as to prepare a false affidavit to fudge the details and risk the sort of tragic, not to mention heinous, harm they cause Breonna Taylor? To understand this, one would do well to remember this line from the great columnist Murray Kempton: There they go again, framing the guilty. You see, the police don’t see fudging the deets as malevolent, but expedient. They believe they’ve got some bad dude to get, and jump through all the silly hoops the lawyers put in front of them so they can go do their jobs of being the good guys.
Is it bad to lie a little to get some bad dude off the street? Before you answer that, consider that lying to further one’s cause these days is hardly frowned upon by the unduly passionate. Is it any better when they do it than when the coppers do it? But I digress.
What will often appear in a search warrant affidavit isn’t wholly false, but bits and pieces of what the police believe to be true strung together with bits and pieces that aren’t, phrased with fuzzy words to create plausible deniability if ever caught (as here) and close enough to at least stave off perjury, if not the occasional suppression. But the truth is that search warrants are almost never controverted, and police are rewarded just for seeking a warrant given how often they run roughshod over the Fourth Amendment because getting a warrant is not nearly as much fun as breaking down a door.
“But you said ‘two’ things, dude, and that’s only one.” Good counting. The second thing you may fairly wonder about is how one can characterize the lies that end up resulting in the needless death of a human being as “petty.” Out of thousand of cases I’ve defended, I can count on less than one hand the number of times there was no lie told. The vast majority of times the lie is tangential, filling in a gap here or there that needs to appear filled for the sake of court but wasn’t deemed worthy of actual concern on the street. So the cops don’t know? They make it up. They fill in the blanks. They know what the right words are and say them.
Most of the time, the lies come after the fact, when the defendant has been busted, the contraband seized, the warm glow of knowing you framed the guilty filling the courtroom. The cops know it. The prosecutors know it. Even the judge knows it, and knows that without it, there were be a lot more work, more expense, more griping and fewer cases made. And it’s not as if the defendants aren’t guilty, right?
But when they come beforehand, people can die. Breonna Taylor died. She wasn’t the first, but we can hope if cops are prosecuted for lying in search warrant applications, they will make damn sure to do better and tell the truth. Will that really happen? No, but maybe it will happen a little less, and every truth told could be a life saved. And every life saved matters.