In Update 7: The BCA–Gone Fishin’, I wrote of the apparent problems in two search warrants served by the BCA the morning after Justine Damond’s shooting by Minneapolis PD Officer Mohamed Noor, a Somali immigrant much lauded by Minneapolis Mayor Betsy Hodges and the local Democrat political establishment. I was limited in that article by not having access to the actual warrants and related documents, so I relied on various media accounts, including one by Station KSTP which obtained copies of the warrants and asked law professor emeritus Joseph Daly to review them:
I don’t understand why they’re looking for bodily fluids inside her home,’ said Joseph Daly, an emeritus professor at Mitchell Hamline School of Law, referring to one of two recently-released search warrant applications.
‘Whose bodily fluids are they looking for? Is she a suspect? I don’t understand why they’re looking for controlled substances inside her home. I don’t understand why they’re looking for writings inside her home. The warrant does not explain that to me.’
‘When I read that search warrant, I really cannot find probable cause to search her home,’ he continued.
Thanks to a reader who wishes to remain anonymous, I was able to locate the documents on scribd.com. Documents relating to the search of the alley may be found here, and documents relating to the search of the home Justine Damond shared with her fiancé Don Damond are here. I’ll include screenshots of those documents in this article.
Background: There are three documents associated with any search warrant, all filled out by the police:
1) The affidavit, often called the application. In this document the officer lists his experience and assignment, and explains, in detail, the nature of the crime(s), the specific evidence he seeks, where it can be found, and exactly how he came by that information. He must establish probable cause in the affidavit in order to obtain a warrant. He ends by swearing, under oath, everything he says is true.
2) The actual warrant. This is, in part, a copy of the affidavit, but also includes the thing(s) the officers are allowed to search for, where they are allowed to search, any limitations imposed by the judge, and any special permissions granted by the judge. A copy must be presented to the person whose property will be searched.
3) The return. This is the officer’s report back to the judge about what he found, or did not find. All of these documents must be on file with the court. All warrants and paperwork must be done in a short time, usually within a day.
The Search Of The Alley: After Justine Damond died, the BCA was called to investigate and arrived sometime in the early morning hours of 16 July 2017. Shortly after they arrived, they surely knew the basics of what happened, specifically that MPD Officer Mohamed Noor shot and killed Damond shortly before 2400–midnight–on 15 July 2017. Normal procedure for any police shooting requires the officer’s weapon and all ammunition be seized as evidence as soon as possible, and all rounds, fired and unfired, accounted for. This too would have been known to the BCA. Any competent investigator, if not told about all of this, would surely have asked, and would not have been satisfied with “I don’t know.”
In this case, the BCA, specifically Joe O’Brien, requested and obtained two separate search warrants: one for the alley where Damond was shot and died, and a second warrant for her home at 5024 Washburn Avenue South. These were telephonic warrants. Telephonic warrants are used when there are emergency conditions and it would not be possible to take a written warrant to a judge for him to read and evaluate. The information in the affidavit is read to the judge over the phone, and verbal permission is given. The actual paper copies must be filed with the court later. The paper copies indicate the affidavits were read to District Court Judge Laurie Miller at about 0530 on 16 July. Keep that time in mind, gentle readers.
I’m still not sure why the BCA felt the need to obtain a warrant for the alley–it’s public property–though reader SPD3454 suggests a possibility:
Search warrants on what we think is public property, is common in my jurisdiction. The City maintains the alley and has public right-of-way, but the homeowner technically owns the property to the center point of the alley. This is no different than the sidewalk in front of a home/business. You call it doting the i and crossing T, but I call it covering your ‘rear-end’.
In any case, it may have been nothing more than being certain their search was legally covered, which is never a bad idea in a police involved shooting. Here is the affidavit in three pages:
I am struck by the highly general nature of the property to be searched for and seized. It reads very much like a generic list one might find in a Criminology 101 textbook. Particularly odd is the request to search for “knives and/or sharp instruments,” and writings that might identify a motive or suspect. Damond was the victim. Her motive was to help whoever was screaming somewhere in her neighborhood. O’Brien knew Noor was the suspect. And “saliva swabs?”
The statement of facts is very brief. O’Brien asserts he doesn’t know Damond has a gunshot wound, but also asserts it was an “officer-involved shooting, and would be investigated as such. Why then, does he need to search for “knives and/or sharp instruments”?
Here’s where things become strange. Searches by warrant can normally only be done during daytime hours, but he asks for permission to search at night, claiming the police were called to Damond’s home because a women was screaming there. Not true. Damond reported someone screaming somewhere behind the area of her home. They claim they need to search to prevent “delayed medical care of anyone inside the residence.” It’s 0530. The BCA has been on scene for hours. Are they so incompetent they didn’t sweep the area for potential suspects for their own safety? Did no one think to knock on the door at Damond’s home to see if anyone was there? If they thought someone was injured within and unable to respond, they decided to wait hours for a warrant, and to plead dire urgency only on that warrant? And why would they think anyone was injured at Damond’s home a half block or more away? Didn’t they listen to the 911 recordings during those hours? They could call the dispatch center and have it played over the phone.
Here’s the search warrant for the alley:
Notice that with the exception of formatting differences, it contains essentially the same information as page one of the affidavit.
While the affidavit is non-specific, to say the least, most judges would authorize a search under similar circumstances, and it’s unlikely any judge would exclude any evidence seized under the warrant. Here’s the return:
And here is the “attached,” the evidence seized in the alley. Notice there is little evidence:
Notice “cartridge case(s)” were recovered, but the number was not specified. The police narrative to date is Noor shot Damond once in the abdomen, but this vague entry leaves open the possibility Noor fired multiple shots, hitting Damond only once. The omitted portion of the page is only the signature area. The document does not say when the items were taken into evidence. Presumably the agent’s reports will contain that information, and they have not been released.
The Search Of Damond’s Home: I’ll not post screen shots of this affidavit. Apart from the difference in addresses, it is word for word identical to the affidavit for the alley. Apparently the BCA has a standardized, broadly general, generic form for searches. This does not comport well with the Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause [emphasis mine], supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.
The affidavit does not “particularly describe…the things to be seized.” It provides, instead, a laundry list of things that might possibly, in some circumstances, be evidence or a crime or fruits of a crime, again, the sort of list one might see in a basic criminology text.
The three pages of the house warrant are, with the exception of the address, identical to the three pages of the alley warrant. This warrant was electronically signed at 0538; the alley warrant at 0540. Here’s the return for the search of Damond’s home:
They found nothing. No blood, hair, fibers, knives, clothing, writings, controlled substances, nothing.
The general nature of the things to be searched for is no coincidence. The police may search anywhere the items they seek might be found. If they’re looking for stolen car tires, they can’t look in jewelry boxes or shoe boxes, but if they’re looking for hairs or fibers or drugs, nothing is denied them.
Analysis: In analyzing such cases, it’s often helpful to look for what should have been done that wasn’t, or for what was done that shouldn’t have been done. Let us assume, for the sake of argument, Agent O’Brien, for whatever reason, made good faith mistakes in his affidavit for this warrant. It was then the job of the Judge–Laurie Miller–to determine whether he had actual probable cause under the Fourth Amendment to search, and if not, to deny the warrant. Here are the questions she should have asked, but apparently did not:
Agent O’Brien, you said Damond was killed in an alley a half block or more away from her home. Why do you think there will be any evidence relating to her death inside her home? Did any of the action in this case take place there?
The answer would be painfully obvious, and for any competent judge, this would be the only question that really need be asked. The affidavit said she was killed in the alley. Her home was separated by time and distance from the place of the shooting in the alley. It had no role in the incident. No role; no probable cause; no search warrant; no additional questions necessary. However, for the sake of illuminating the issues, let’s allow a competent judge to continue:
What crime was committed that has anything to do with that house or vehicles?
Why do you think there would be any trace evidence of any kind in a house a half a block away from the scene of the shooting?
Why would there be any “saliva swabs” there?
Isn’t Damond the victim? If she’s dead, and the victim, why are you looking in her home or vehicles for writings that would identify a suspect and a motive?
What was Damond wearing when shot? Only pajamas? Why do you want to seize all the clothing and footwear you listed on the affidavit? What does it have to do with the case?
Why do you think “papers and documents” in that house would relate to the case?
What do controlled substances have to do with this case?
By the time they asked for the warrant, the autopsy had not been done. They would have had no reason to think Damond was under the influence of drugs or that drugs had anything to do with the case.
Why do you want to search any vehicles on the property? What do they have to do with this shooting?
Don’t you have Damond’s cell phone? Why do you think there are more and why do you think they’re in her home or vehicles?
Why do you think there is “data” relevant to the 911 calls there? What kind of data could that be? Don’t the police have recordings?
If Judge Miller asked these painfully obvious questions, there would have been no warrant, though it would have been perversely amusing to hear O’Brien trying to justify a search. To be fair to the Judge, who I do not know, it is more difficult to deal with the details of a telephonic warrant than a written warrant one can read and reread at leisure. Still…
Obviously, the lists are identical on both affidavits and warrants because they’re generic, not at all specific to the circumstances of the individual crime scenes. In fact, Damond’s home and vehicles were not crime scenes at all, and she was not a suspect.
There was no reason, no lawful, professional reason at all to search Justine’s Damond’s home or vehicles. They had nothing to do with her shooting or death. They were at least a half block away. They were removed from the actual crime scene in time and distance. There was no connection between her home and vehicles and the crime scene. There is no probable cause.
Justine Damond will not be objecting to the search. We don’t know how they searched, whether they tore the home apart, or behaved professionally. Don Damond may have a civil course of action, and this issue will come up in the wrongful death suit he will certainly file.
But the BCA found nothing. Why did they conduct the search? There are two primary possibilities:
Possibility 1: O’Brien and his compatriots are well intentioned but incompetent. They don’t understand the Fourth Amendment and are reduced to using generic, off the shelf forms for search warrants. They didn’t realize they didn’t have probable cause, but wanted to do a good, thorough job and Damond’s home was close by–hey, she made the 911 calls from there, maybe–so why not search it?
Possibility 2: The search was a classic fishing expedition. They knew very well they had no probable cause to search, so they used a generic form to erect a smoke screen, and did an unnecessary telephonic warrant to further obscure the facts. They had no reason not to take the paperwork directly to a judge. They had plenty of time to figure out what happened, and plenty of time to speak with high-ranking MPD and BCA officers. They knew the political climate in Minneapolis, and wanted to be on the right side of that politically correct imperative, so wanted to find anything they could use against Damond to impugn her character or to try to help explain away Noor’s shooting. At the very least, maybe they could give their superiors and high-ranking politicians some wiggle room.
The BCA arrived at the scene in the early morning of July 16th. This is not a complex case. Even though Noor was not talking–as far as we know–Officer Harrity did cooperate with the BCA, and there is no reason to think that cooperation did not extend to at least a brief version of what happened at the scene. Even if both officers remained mute, it would not take experienced investigators long to figure this one out. They had hours, perhaps as many as four or five. No professional would commit perjury–that’s what lying on an affidavit is–to search a home or vehicle having nothing to do with the case they were investigating.
O’Brien knew it was a shooting case. He knew there was no knife involved. He knew what Damond was wearing. He had her cell phone. He had no reason to think drugs were in any way involved. He knew there were no “writings which may indicate motive and assist in identification of [a] suspect,” because Damond was dead. He knew who she was: the victim, not the suspect. He had no reason to believe virtually any of the things he was asking to search for and seize in Damond’s home would be there. O’Brien knew there was no one “screaming at this residence.” O’Brien knew there was no one in that house in need of medical attention. If he truly believed that, he would have broken in as soon as he came to that belief. To do otherwise would be to knowingly allow someone to die when he could have saved them.
The more conspiracy minded might think the BCA concocted the house warrant on purpose, knowing it was a screw up from start to finish. This would give the local prosecutor, a man with apparently leftist sympathies, an out, a reason to decline prosecution. On one hand, they had no way to know they’d find nothing with which to attack Justine Damond. Surely they believed they’d find something. “Give me the man and I’ll find the crime,” and all that. On the other hand, they found nothing, and the search would have no bearing on the criminal case, so rational people must conclude this possibility is unlikely. Besides, it’s not necessary to ascribe incredible motives when plain old incompetence will do nicely.
This issue is not important because it will be a major legal issue argued in a criminal trial. There is no evidence from the search to suppress. It’s important because the most likely reason for the search is a political fishing expedition. We cannot say this with certainty, but the search raises the question of intent. Is the BCA working to provide a politically palatable out for Mayor Hodges, the City Council, and Mohamed Noor, a black Somali upon who the city has heaped such acclaim? Is it more important to them to protect their political investment in Noor, who represents Minneapolis/Somali relations and Democrat electoral viability, or to uphold the rule of law?
It’s still possible evidence will arise that will make Noor’s shooting of Damond, if not legally excusable, at least understandable. I cannot imagine what such evidence could possibly be. Particularly if Noor is not prosecuted, Agent O’Brien, the BCA, and Judge Miller will have much to explain. They might wish to begin now.
The SMM Damond archive is here.