October 23, 2017

Damond: Police Searching Police

Justine and Don Damond

By: Mike McDaniel    In Update 7.2: All Fished Out, I explained, in some detail, the substantial problems with one of the two search warrants served the morning after Justine Damond’s death. Particularly, the warrant to search her home had no basis in probable cause, as absolutely required by the 4th Amendment, nor was there any professional reason or need to search it. Her home—and any vehicles—were removed in time and distance from the scene of Damond’s death. They were uninvolved. There was no reason, none at all, to believe any evidence relating to her shooting by Minneapolis PD Officer Mohamed Noor could possibly be found there. In other words, it was an unlawful fishing expedition.

The other issue I explored in that article what the reason for the fishing expedition. Were the officers involved merely incompetent? Incompetent but well-intentioned; trying to be thorough? Or were they corrupt, searching for anything they could possibly use against Damond to assist Officer Noor? It’s possible their motivation was, in part, all three possibilities, but in any case, they found nothing, or nothing they were willing to write on the return to the court. Damond was clean, and there was, predictably, no evidence with any bearing on the case.

It has been my experience that whenever the police conduct a fishing expedition on the home or vehicle of someone they’ve shot, or someone who might otherwise cause them great difficulties, it’s almost always done to try to find something–anything–they could use to harm that person, and to excuse their actions. Is that the case here? Time will tell.

In that article I neglected to note one additional factor: Officer credibility. Police officers, particularly local officers that must work with the same prosecutors and judges throughout their careers, have only one thing going for them: their reputation for competence and integrity. They zealously guard that reputation, for without it, they’re useless. I would never have taken an affidavit/warrant like that produced by BCA Agent Joe O’Brien to a prosecutor or judge. If I had, my reputation would have been shot. Judges speak with each other about such things. That Judge Laurie Miller actually authorized a warrant based on not a shred of probable cause is another matter for another time.

Thanks to reader SPD3454, I now have access to an affidavit/warrant/return written by BCA Agent Brent Peterson, produced on 07-31-17. While it’s not quite as specific as I prefer such things to be—I’ve always been a bit fussy that way; I’m referring primarily to formatting issues—it does, in fact, provide sufficient probable cause for a warrant, and also fills in some of the factual blanks with which we’ve thus far been contending.

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Note that the affidavit actually, specifically, and particularly, describes the things to be seized and the place to be searched. Peterson also narrowly explains why he wants to search for and seize that material.

His probable cause statement notes the names of the officers involved, and notes they were involved in an “officer involved shooting.” That phrase means only one thing in the criminal justice system: a police officer shot a citizen, for whatever reason. Peterson does not identify the specific crime(s) that might have occurred, but at least suggests that’s an issue and reason for the warrant.

Here are some interesting factual issues from the affidavit:

*The BCA knew it was an officer involved shooting from the first moment of its involvement. Agent O’Brien danced around this issue in his affidavits.

*Peterson suggests the BCA processed the officer’s uniforms and duty equipment. This could mean anything from taking everything they were wearing into evidence—which should have been done—to merely doing gunshot residue processing of Harrity and Noor’s clothing, etc. As I’ve noted in the past, at the very least, Noor’s handgun and all spare magazines should have been taken into evidence as soon as possible, and because both officers were present, the same should have been true of Harrity. It would be necessary to exclude Harrity as a shooter and to confirm his account of Noor shooting across him through the driver’s window. It also notes that other evidence has been taken from both officers.

What other evidence? Surely swabbing was done for gunpowder residue on Noor’s hands and clothing. Any notes the officers may have done that night must have been seized. The list would surely go on, but without knowing what the BCA was confronted with at the scene, I can’t speculate further.

*Peterson confirms Harrity gave the BCA a statement. Though he does not specify what Harrity told agents at the scene, it’s reasonable to believe he told them there a shorter version of his later, much longer recorded statement. That statement would have been enough to confirm Noor shot Damond. Had that not happened, nothing the BCA did after arriving on the scene makes sense.

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*The BCA took “body camera videos,” the vehicle involved and 911 audio and radio traffic audio into evidence. We also learn the MPD issues iPhones to its officers, and the BCA took those from Noor and Harrity as well.

*The affidavit confirms Noor has not given a statement, which also strengthens the probable cause for his official documents.

Peterson repeatedly refers to probable cause, which he actually provides.

The final page is merely required language. This affidavit is, fortunately, clear of the generic, ridiculously broad list of potential things that may or may not be evidence of a crime in some circumstances. It actually meets the requirements of the 4th Amendment.

The warrant, authorized by Judge Stephen Muehlberg, unlike the warrant analyzed in Update 7.2, is also specific and professional. I’ve omitting the second/signature page, as it too is merely required language.

The return is also professionally done, and to the point.

Final Thoughts:

One would hope the superiors of the agents that did the initial investigation, and of Judge Miller, would have a significant chat with them about the 4th Amendment, proper procedures and professional conduct. Unless of course, a political fix is in, or is in the process of being installed. In that case, they would be lauded—quietly—as heroes of the resistance.

As a result of this warrant, we now know a bit more about the case than we did before. One should not imagine that when the BCA presents the results of its investigation to the local prosecutor, every bit of that information will immediately be made public. If the investigation provides a case for the prosecution of Officer Noor, much of the information will be withheld from the public as the case progresses. If it does not, the same will probably be true for political reasons; there will be much the politicians involved will reflexively seek to keep under wraps. However, in either case, sufficient information will be made public through the normal criminal justice process that we’ll be able to get a gradually clearer picture.

As always, I’ll continue to update as necessary. Unless something comes up to require another path, my next article will address the political and cultural issues swirling around the case.