INDIANAPOLIS – The Indiana Court of Appeals this week tossed out evidence in two cases in which Fort Wayne police officers used a battering ram to execute a no-knock search warrant.
The cases of Cornelius Lacey Sr. and Damion Wilkins are separate but involve one search of Laceys home, where Wilkins was present.
In 2008, Fort Wayne police received tips that Lacey was selling marijuana and cocaine, according to the ruling. Surveillance was conducted on Laceys business and home, including police examining Laceys trash. In the trash they found mail to Wilkins.
A search warrant for illegal drugs and weapons was obtained for the home, and on Dec. 5 the Fort Wayne Emergency Services Team chose not to knock and announce its presence because of the criminal backgrounds of Lacey and Wilkins.
As a result of the warrant, Lacey was charged with unlawful possession of a firearm by a serious violent felon, possession of marijuana and maintaining a common nuisance. Wilkins was charged with unlawful possession of a firearm by a serious violent felon and possession of marijuana.
The defense filed a motion to suppress the evidence, which Allen Superior Court Judge John Surbeck denied. The case was then appealed directly to the Indiana Court of Appeals.
The appellate judges found the search warrant itself was proper but ruled against the manner in which the warrant was served because police ignored a general knock and announce rule.
We are concerned with an emergency response team policy that authorizes a unilateral decision to enter into a home without knocking when there has been no independent determination regarding the circumstances, the court decision said. As such, we find that suppression is the appropriate remedy for dealing with this Indiana constitutional violation.
Fort Wayne Police Chief Rusty York noted that the court agreed there was a reason for the officers to be concerned about their safety but said that information should have been articulated at the time the warrant was obtained so a judge could weigh in.
Its pretty much a technicality, York said.
According to the decision, there were no circumstances that necessitated a no-knock entry, such as if a person inside the home became aware of the police and tried to escape or destroy evidence.
Instead, the court found the officers should have submitted the information on the defendants criminal histories to a neutral judge to authorize a no-knock entry.
Lacey had been arrested for criminal recklessness in 1994, he had a previous warrant for a bond revocation that stated that he may be armed, and he had been convicted of dealing cocaine, the decision said. Wilkins had been convicted of armed robbery and resisting law enforcement arising from a 2001 home invasion where weapons were involved, and Wilkins had fled the scene.
None of us wants in any way or at any time to jeopardize the safety of a police officer, Judge Michael Barnes said in a concurring opinion.
However there was no reason here why the officers could not have applied for a no-knock warrant before a neutral magistrate. All of the reasons given for the no-knock at the scene were known in advance, and the police encountered no other problems that would have hindered their entry.
Defense attorney Stanley Campbell, who represented Wilkins in the case, said anecdotal evidence shows Fort Wayne police regularly use no-knock entry to serve warrants. He said video of this entry included the full SWAT team using a battering ram and smoke grenade to enter the home.
He said that during a hearing, it became clear the police have no written guidelines or policies for no-knock entries. Instead, it is left up to the team leader the day a warrant is served.
York said the situation has already been addressed because the law on search warrants was clarified to require judicial approval of no-knock warrants if there are safety concerns. He said the department is following the new guidelines.