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December 5, 2006 - Atlanta Journal-Constitution (GA)

Records In No-Knock Cases Are Poorly Kept

Officers Regularly Fail to Report What Searches Found

By Beth Warren, The Atlanta Journal-Constitution

Return to Drug War News: Don't Miss Archive

In March, an Atlanta Police Department narcotics officer, later involved in the fatal shooting of an elderly woman, got a "no-knock" search warrant for a house on Evans Drive after determining that a man named "Grill" was selling cocaine there.

How Officer Jason Smith came to that conclusion, how he persuaded the judge to give his unit the exceptional warrant, and what police found are hard to pin down, more than eight months later. That's because State Court records contain only a judge's order allowing the officers to bust in and search the place -- not the supporting documents that are supposed to accompany the order.

And that's not an isolated case. Based on an Atlanta Journal-Constitution survey of more than 40 narcotics search warrants granted to Smith or fellow investigator Arthur Tesler, records are spotty at best. Files from only seven cases included an officer's sworn statement saying why he needed a warrant, the warrant itself, and the "return" document, which lists what police found during the search. More than a dozen files contained only the warrants, such as the case with Grill.

Tesler and Smith were the investigators who secured the warrant that a narcotics team used to crash into Kathryn Johnston's house Nov. 21. The elderly Johnston opened fire on the officers and was killed when they returned fire.

The judges who sign the warrants say they rely heavily on the honesty of the officers, who frequently rely heavily on confidential informants -- whose identities are often kept secret from the judges.

Many of the search warrant "return" documents, which are supposed to list any evidence seized by police, are missing from State Court records, according to a review of the search warrant log for 2006.

Under Georgia law, officers are supposed to file the returns with the court within 10 days of searching a property.

The lack of supporting explanations may make it difficult to tell if officers were justified in breaking down doors to gain the element of surprise.

The no-knock tactics have come under scrutiny since Johnston's death. According to court records, Smith and Tesler were looking for someone else, a suspected cocaine dealer named "Sam." The FBI is investigating the incident.

Rusty Mayer, a supervisor with the Fulton County public defender's office, said it's possible the shootout could have been avoided if police had given Johnston time to open the door.

Investigators still haven't filed documents showing whether they found the narcotics and surveillance cameras they expected inside Johnston's home. That paperwork should have been filed with court officials Friday.

Under Georgia law, officers must give a reason they believe evidence would be lost or they could be in danger before a judge agrees to a no-knock provision. But not all warrants secured by Smith and Tesler appear to have that supporting paperwork.

Norris Arnold, a supervisor with Fulton's criminal warrants division, blamed the incomplete records on police, who he said sometimes fail to provide the required documents.

Scott Kreher, president of the Atlanta chapter of the International Brotherhood of Police Officers, said there could be several reasons why the affidavits and search warrant returns aren't filed.

Detectives may be reluctant to file affidavits detailing what they know with the court, where defense attorneys, suspects and the public can get them.

And while search warrant returns are supposed to be filed within 10 days, police often are busy, hustling on new cases, he said. "It is a 10-day rule," Kreher said. "Sometimes that's hard to do."

Asked for comment, Atlanta police spokesman Joe Cobb said the department is reviewing all procedures and practices pertaining to search warrants.

Though there is supposed to be careful screening by the judges who issue such warrants, some Fulton County judges say they often must trust officers' sworn statements.

Judges typically don't ask officers to tell them the name of the confidential informant, leaving only the officers to weigh the credibility of the source.

That's a common and controversial practice across the country, said Jack King, spokesman for the National Association for Criminal Defense Lawyers in Washington.

There's always a danger the confidential informant, many of whom have shady pasts, could lie.

In the Atlanta case, the informant, Alexis White, 24, now says he never bought drugs from "Sam" inside Johnston's home, as the agents' affidavit filed with the request for the no-knock warrant states. He also alleges that police asked him to lie to help them cover up their mistake.

The death of Johnston could change the way some Fulton judges view no-knock warrant requests by police.

Superior Court Judge Jerry Baxter said, "I'm sure all of us are going to ask a lot more questions and assure ourselves that there is probable cause, legal justification to sign a warrant. But we rely on the sworn testimony of the officer who comes in here, raises his hand and swears under oath."

Baxter called Johnston's death "very disturbing." But he said that, based on the testimony Smith gave to Magistrate Kimberly Warden, he too would have signed the warrant.

"There's not a judge in the courthouse who wouldn't have signed that warrant," he said.

State Court Judge Henry Newkirk, a former police officer, said he gives all warrant applications a careful eye.

"We're the gatekeepers, to make sure police don't have unfettered powers."

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