Illustrated Daily; 6094; Police Force

When I found out that they had used automatic weapons and that the man wasn't armed, I was even more upset in that I don't see what justified these tactics, these extremely violent tactics on the part of the police department and why they can't just serve warrants in a less aggressive manner. The illustrated daily, managing editor Hal Rhodes. Good evening. That Americans attitudes towards crime are hardening is clear. The decisions coming out of the United States Supreme Court in recent years have reflected

those attitudes is equally clear and that it is easier today for police to obtain warrants and if need be, defend them in court is also apparent. But while proponents of these shifts in law enforcement procedures hope they will translate into a reduced crime rate, critics worry that they are too frequently translating into the excessive use of police force and potentially violations of individual civil rights. It is not altogether an abstract issue here in New Mexico. Two recent police operations in Albuquerque have, according to the critics, confirmed their worst fears and have brought into focus the problem of maintaining a balance between law enforcement on the one hand and individual civil rights on the other. An examination of this situation tonight with Lieutenant William Conley, commander of the Violent Crimes Division of the Albuquerque Police Department, Steve Slusher, assistant district attorney for the county of Bernalillo, Ron Koch, a leading New Mexico defense attorney

and state district judge Pat Murdoch of Bernalillo County. First, Louise Maffet has this background report. In recent weeks, the Albuquerque Police Department SWAT team has been involved in the execution of two narcotics-related search warrants and in the course of each incident an unarmed man was shot. One is dead, the other critically wounded. Neither man was the subject of the warrant being served. These incidents have raised questions about the issuance and service of search warrants, the information upon which they are based, the use of deadly force in residential neighborhoods, and potential violations of Fourth Amendment rights. According to police procedures, this is how it's supposed to work. Whether or not you're dealing with serving warrants or any other type of situation, there's certain basics that will teach them here in the academy before they got in the street. Now, one of the first things they're going to do is learn how to deal with the situation and whether or not it's going to be something that could be totally unexpected or something

that their, you know, possibly they should normally expect. First off, they're going to have to find out exactly what it is they're dealing with, like an example on a warrant situation. They'll need some background on the type of person they're dealing with, the information contained in the warrant, they'll have to get all that verified. Now, if they know it could be a particularly dangerous situation or there's a possibility that they could expect some type of trouble, then normally the field officer will make arrangements with some of the other units within the police department, especially units that are trained for specific types of things to assist them or possibly even go ahead and handle the actual serving of the warrant themselves. The normal case when officer working in street warrants are very common type of thing. They're dealt with daily. In general, there's no big problem. There does at least appear to be a certain level of violence or maybe it's increasing. It's really, it's really difficult to say. It could be nothing more than just all of a sudden some routine situations have just become violent for no good, no good apparent reason. A good example would be in serving warrants. Those things are routinely served without any problems at all. In routine efforts, notwithstanding, not all attorneys are satisfied that the system works

the way it's supposed to. One of the best ways that you can tell whether the system is working is to see what the results of that search warrant and police activity are. And here I think we have to remember that we're not looking for armed terrorists, we're looking for alleged cocaine dealers. And so when these warrants were issued and there were three warrants connected with the same crime, they were looking for the same alleged crime, they were looking for cocaine. And they were using these rather harsh police tactics of raiding and smashing and breaking down doors to prevent according to them the destruction of evidence. In fact, there was very little evidence found if any, none of the people who were named in the search warrants were actually found on the premises where they were expected to be the results for the citizens of New Mexico are horrendous. They're one man dead, they're one man in the hospital for a long time with tremendous

medical bills, there's future legal action that's pending on all of this. And in fact, there's been no dent made in the drug traffic in Albuquerque as a result of this. Under this no-knock theory, the police have the right somehow to break down the door and then inform you that they have a warrant and are there for a search. In fact, what happens is either tear gas or smoke bombs are used, police are armed and ready to shoot. They break down your door and they tell you to not move or you're going to be killed. And they do this without regard for who may be in the building, in the vicinity, who might be harmed and there's basically just a very severe, and what I believe is a negligent endangering of everyone in the community when a warrant is served in that manner. Livingston's criticisms are not entirely academic in the opinion of one eyewitness to a recent

execution of a search warrant by the Albuquerque Police Department SWAT team. It seemed to me that the police had no sense of community relations in this whole affair and that they should take it into account that when you have a full-scale military attack on a residence that the people around the residence do not go unaffected by this. By taking criminals by surprise and just bursting through there, it's a flight or fight reaction and I think it's just going to end up with more people getting hurt than need be. I hate to think of kids that get involved with this or some innocent bystanders walking by, I could be coming back from the store. And as I thought about it and the days went by, I got more and more scared and more outraged about the thing. I think that my rights were not taken into account by their actions and I don't think the rights of any of my neighbors were taken into account, much less the people inside

the building itself. Fascinating background, you're occasioned by recent events surrounding the execution of a search warrant in Albuquerque and Lieutenant William Conley appreciate that you are unable to discuss the specifics of any cases currently in litigation, including the one about which we just heard and we will try to stay away from that if I go over that line, let me know. But in general, what determines the type and amount of force employed by the police and the execution of a search warrant? Well, during an officer's investigation of the circumstances that he's looking at, if he makes a determination that these people are armed have a past history for criminal activity of being hostile towards the police and we know that there are also the type of crime that we are looking at. It could be for a person who has been committing armed robbers, it could be a person who's been committed homicides.

And it could be drug traffic. These are the things that are also included in that warrant to that the attorneys are aware of, the judges are aware of and we include those in our probable cause when we execute those wars. So, the attorneys, you mean the district attorneys? Well, the district attorney, any warrant that we search warrant or even arrest warrant that we apply for, it first must be scrutinized by the district attorney's office and then of course it is taken to a judge who also scruples the nights that warrant and makes a determination that we do in fact have the probable cause based on the affidavits that are submitted. But the amount and type of force to be used in serving that warrant is not prescribed in the warrant itself, is that right? A lot of times it is and particularly if you realize that you're going to be confronted with a situation where you have information that they aren't armed with weapons, automatic weapons, shotguns, handguns or whatever.

And that information is also included in the affidavits. All right, are the police today generally using greater force and the execution of search warrants than here to for has been the case and it's so why? Well, I don't know if we're using greater force or not but what we're trying to do is to secure an area to minimize that force, not only the force that could be used against us but also accidental discharge by our weapons that would be used against us that could also hit innocent bystanders or a bullet nowadays can go right through a wall. We recognize that fact. And so we utilize in some cases our SWAT team because they're better trained in these areas to minimize that force or resistance against the police force. All right, we just heard from an ordinary citizen who's only involvement in what was as a bystander and eyewitness and a neighbor to someone upon whom a search warrant was served. We heard him express his anxiety, frankly, even his anger that his own safety as he saw

it and potentially his rights therefore not to mention those of his neighbors were not taken into account in the manner in which the police served that warrant. Would you agree that there can be very legitimate concerns under circumstances of this sort? Oh, I agree. In fact, we do have that our own concerns and a lot of cases the neighborhoods are secured. People are moved from next door apartments. They are taken out of the neighborhood and we have secured neighborhoods for that very reason. We do that in all situations because a lot of times the neighbors who live across the street are in cahoots with the people that we are after, particularly in narcotic situations, where they actually have posted guards in the neighborhood and are watching. So the element of surprise is very essential in narcotic cases and you can't do that 100 percent, but we do take those precautions and we do have emergency equipment available that's very close by.

So if something does occur those people can be attended to immediately. So when you enter upon one of these things it is with the supposition that something could go wrong and innocent people could be affected. We're conscious of that all the time. I mean that's part of our job. We have to protect not only every citizen out on the street and I might add something that wasn't indicated in here. We have had officers on a lot of occasions who have been hurt and most recently we had an officer that was shot in the face several months ago in executing all of them. Right. I understand that. Assistant District Attorney Steve Schlescher, we are told that recent Supreme Court decisions have made it easier for police to obtain search warrants, even defend them in court. But from where you see any evidence today that the police are employing greater force and here to for has been the case in serving search warrants as you know there have been these two cases in Albuquerque in the past couple of weeks which have made the headlines. No.

It is unusual to have two incidents involving injury or death to somebody in a relatively short period of time but we haven't seen anything that indicates any increase or change of pattern. These sort of things, I mean they're unfortunate especially when it turns out in retrospect that the person shot may have been on armed but these sort of things happen in those situations and that is certainly not the first time that sort of thing has happened here in New Mexico or in Albuquerque. How often are district attorney or assistant district attorney you do pass on on warrants of this sort. How often do you involve yourself in prescribing the kind of force to be used in serving the warrants. Generally speaking the kind of force to be prescribed is a pretty much a police function. We get involved in reviewing the warrant in terms of whether it's legally sufficient and frequently will make changes. We also get involved in helping decide whether there is legal reasons, legal justification for either a non-knock warrant or for a search warrant that is executed after 10 o'clock

at night. Other than that the amount of force that is used in executing a warrant which is to say whether a SWAT team goes in or whether regular officers go in that sort of thing is left to the individual police officer and his superiors. All right. Nobody in their right mind is against law enforcement I am sure but back to the situation where an ordinary eyewitness bystander guilty of no wrongdoing as far as anyone knows is now frightened has lost his faith by his own testimony in the police department because of what he sees a saw in the issuance of a search warrant. Now we're talking about more here than the rights of the accused. Yeah. The problem is a practical and a pragmatic problem as much as anything else. An officer, a police officer is always walking a very narrow line. If he uses too much force in a situation then obviously somebody gets hurt who shouldn't

you know perhaps in retrospect shouldn't get hurt. On the other hand if an officer isn't alert enough and doesn't have enough force available the officer can get killed or other innocent bystanders can get killed. We have had search warrants executed here in Bernalillo County where the officer was shot at or where other people were shot at by people that were the subject of the search warrant. So it's a very hard line to walk to determine how much force is appropriate in a given situation. I think basically the Albuquerque Police Department is pretty much state of the art. They are as aware and follow procedures and guidelines that are nationally derived for the use of force in these situations. But no matter what you do, you are always going to have situations where people get shot who in retrospect didn't have a gun or where a police officer decides not to use force and an innocent bystander or that officer gets killed.

That's going to happen. The question is, is the conduct reasonable in the circumstances and that's all we can really look at. All right, let's talk about just getting warrants. There's anyway very briefly if you don't mind to explain what it is a Supreme Court has been doing in recent years which has made it easier for police to obtain and defend search warrants in the courts. Really very little is changed in the terms of what a police officer has to put in a warrant to get it. The only recent change involves what's called the credibility of confidential informants, whether or not a confidential informant is reliable and credible and the Supreme Court has changed that rule to say you look at the totality of the circumstances in a warrant rather than applying a more specific test that used to be the rule. It's not even clear if New Mexico is going to follow that. The other change is not even clear if New Mexico is going to follow the United States Supreme Court's ruling. Because New Mexico can as a state adopt a stricter standard under its state constitution.

And on that particular question, at least four or five state courts that I'm aware of have followed the older stricter standard rather than following the U.S. Supreme Court. What's your personal preference? I don't see that much functional difference between the two rules. All right. All right. Ron Coak, you've heard Steve Slesher on Supreme Court's decisions affecting the issuance of search warrants. From the point of view of a defense attorney, would you agree that it hasn't made a lot of a difference? No, I don't agree with Mr. Slesher's statement. I think that warrants are much easier to obtain and they're much easier to defend today before the courts, even though I think it's resulted in a lax standard for application, which has resulted in a violation of individual rights. One of the most important ones, and I think Steve was going to allude to it, is an exception it was created in a case called the United States versus Leon, where they essentially now

have created what's called a good faith exception to the old exclusionary rule. Now the exclusionary rule says, if evidence is seized in violation of constitution, you can't use it in your case. And ultimately, that's what they're attempting to do to prosecute people. What they've turned around and said, as long as the evidence obtained by the law enforcement officers was obtained by their acting and reasonable reliance on what a magistrate had said, by signing that, then the courts aren't going to exclude that evidence. And I think what it's resulted in is the officers have been much less careful in scrutinizing the facts that they base the particular warrants on. I don't want to get provocative here, but there have been those I've heard notably defense attorneys argue that the police now basically have a fishing license. Is that going too far? I think that's going a little too far. I wouldn't agree with that, but I do think with the lack standards and another thing that Steve had mentioned was about confidential informants, which are so frequently used that

now with this totality of circumstances test, instead of the old stricter standard, it's very difficult to ascertain really what the underlying facts are that support that warrant. There still are ways to challenge warrants, but they've become much tougher. You know, unless we get false impressions, it's obvious that most warrants by the police are served routinely without violence, and I'm sure without excessive use of force, would you agree that that is normally the case? Oh, I think there's no question, and I really as a defense attorney can't take fault with the police. I think they try to do their best to preserve the safety, not only of the people that they are seeking to arrest or the evidence they're attempting to obtain. I think it's unfortunate that we have situations where innocent bystanders may be harmed, but I do think that because they are trained, because they are specialists, because they are experts, that they should be held to a stricter standard, that should not happen. Well, you see, I think most of us, and probably everybody in this table in a way, can identify

with the innocent bystander, and I suspect most of us worry that one day we might ourselves find ourselves in that position, and wonder what we do in the execution of a search ward. A bystander is scared, feel his own life in a way was threatened, jeopardized, a life of his neighbors and his neighbors' children, given his perception of how police forces use under these circumstances. Where are his protections in this scheme of things? Well, I think the two recent cases talked about, obviously, you're going to lead to some type of litigation, maybe even possibly by a bystander. Other than that, I think just a matter of community relations, understanding what the police are doing to effectuate these warrants. I agree with Lieutenant Conley, sometimes you can't notify all your neighbors. I think they do try as much as they can to take reasonable steps to protect people who are innocent, and sometimes that didn't happen. All right, sir. Judge Murdock, help us out here. Surely we don't want criminals walking the street, and surely we require effective law enforcement, but just as surely we want to protect the rights of individuals, including

bystanders. Help us out of the quandary. Where's the balance? How do we do it? I think the balance comes where the citizen, as you mentioned in the opening of the show, the voters, the people of the public now, are interested in curbing what they perceive as a wave of crime that's almost out of control in the United States. It's apparent that the boundary that they wish to speak is a bit of giving up of the Fourth Amendment rights that is the sanctity of their home to searches and seizures in exchange for greater security in their own homes. And that, of course, will include some of the things you talk about as far as possibility of involvement and injury of bystanders. So you're suggesting that we are dealing here, whereas some innocent folks are involved with unanticipated consequences of our concern about crime and what we are prepared to do to deal with that? I don't think, really, that if we talk in those terms, I think we're expanding the problem much farther than we need to.

Police officers, when they come to me with warrants, have a very focused idea of the person to place the premises and the things that they wish to search and seize. And that specificity, I think, is sufficient guarantee that coupled with the examination of a magistrate or a judge, that the evidence that they have brought you is sufficient, that we're not involving bystanders, we're not involving people. I think that any feeling of loss of security by the citizenry, I think, is probably misplaced at this point. All right. Assuming you're right about that, perhaps another issue needs to be raised here. Others have raised it elsewhere in the news media. In recent weeks, two police officers have been murdered. One had his face blown off in the issuance of a warrant, tragedies, all. Some have contended, as you know, that this has resulted in, as it were, a more nervous and apprehensive police force. Your impression, can this very delicate sort of thing, throw the whole balance out of whack, as it were, cause it to lose its equilibrium out there in the field, where it really happens?

I don't know that it results in a loss of equilibrium. I think it raises the consciousness of the police officers on the force and on the streets. And I don't think that's entirely bad. I think when you have officers that are killed in the line of duty, police officers suddenly realize that they're walking that thin edge between the violence on the outside and the law-abiding citizens. It's my experience that the police officers that are hurt in the line of duty are the ones that are a little more relaxed, aren't on their toes all the time and are not watching for this imminent danger. Once they are put on their toes again, once they are ever wary of the possible violence, I think that we're not talking about a situation where they overreact. I think we're talking about a situation where they're protecting themselves again. And I don't think that's bad. I don't see them as overreacting these sorts of situations. See, I'm very tempted to talk about a specific case. And I don't know what you'll do that with me, where in a search warrant was issued for purposes of apprehending people involved in narcotics activity, where that happened, those

apprehended. We're not the people they were going after, and someone was severely wounded as a consequence. Something went wrong there. Without talking about specifics of an individual's case, I can talk to you about there have been warrants brought to me within the last several months, where undercover agents doing investigation in heroin cocaine were shown weapons, were told that they should shoot up there in the presence of the cell or those sorts of things. And that sort of show of force is made in the course of what is supposed to be a common buy. The officers can anticipate that these people mean what they're talking about, and that if they're at the scene when the warrant is executed, then there's a likelihood of violence against the officers and possible danger to bystanders and innocent people. I think that it's not a situation again where we're talking about something getting out of control.

We're not talking about a possibility of dragging an innocence. In that situation, the officers and the magistrates that signed the warrants went off on the best evidence they had, and if the situation had changed slightly from the time they got their warrant, we always check the warrants to see how fresh the information is. And in this particular case, the information may not have been quite fresh enough. Things may have changed to the extent to whoever we were looking for was gone at the time, but I think that's a rare occurrence. Those rare occurrences, do they require corrective defense attorney Ron Koch? I think there's no question. If they're going into a situation where they think there's danger and they could be shot and there's weapons involved and they have that pre-knowledge, they should take more steps I think to secure the area, you see utilized things like tear gas and stuff, secure, get out there with a bullhorn and tell the people to come out, that type of thing. I think their primary concern is with destruction of evidence. That's what they're looking for, and one of the reasons police don't do that is they may run in there and if they use bull horns or tear gas that type of thing, the guy might flush the cocaine down the toilet. So you've got a real question.

I guess I have an effect, a tactical question for you, Lieutenant Connick, being relatively innocent about this sort of thing myself. It just seemed to me on the face of it, that a no-knock service of a warrant is itself highly risky, both to the police and anybody else in the neighborhood who might be standing in the wake of any gunfire or any other violence might be occasioned by that. Am I wrong? No, you're not wrong, you're correct, but I don't think those warrants have been issued or warrants have been issued where we have innocent bystanders standing out in the middle of the street in the man's front yard, that wasn't the case at all. The other thing is that fresh information, depending on the people that could change, now that those changes can occur in minutes and seconds. So how fresh can we be? We obtain a warrant, we obtain the information, and within minutes these people leave the residents or whatever. Gentlemen, our time is up. I wish we could spend more time on this one, those fascinating topics I can think of right now.

You've been very kind to come to Ville's Train Daily and help us understand as best we've been able. Fred, that has to be it for tonight, tomorrow, join us as we begin a two-part examination of the Thermoil and Central America. New Mexicans who have been there. Look at Nicaragua. Meanwhile, thank you for joining us. I'm Hal Rose. Good night.