August 19, 2017

Justine Damond: A Fishing Expedition

Justine Damond

By: Mike McDaniel

There are no new, definitive developments in the Justine Damond shooting, though a number of news reports suggest the current police narrative is something like this:

When Officers Harrity (driver) and Noor (passenger) reached the end of the alley, they heard a loud noise, perhaps a woman slapping their vehicle. Damond immediately thereafter approached the open driver’s window, so Noor shot and killed her. This is apparently the version most complimentary to Noor.

If this ends up being the ultimate explanation for Damond’s death–let’s just say no honest, professional police officer or agency would buy it for a second. Even if Damond slapped the vehicle in an attempt to get the officer’s attention–they apparently drove past where Damond was hearing screams–that in no way excuses negligent homicide. Police officers are supposed to be able to deal with stressful situations, situations far more stressful than hearing a loud noise. “I heard someone slap my car, so I shot the first person I saw,” is in the same category for professional cops as: “he called me a mean name, so I shot him.” There is simply no excuse, no defense, no explanation. It is never a good idea to whack a police car, particularly if the officers might be startled, but it’s absolutely no justification for loosing shots.

The alley where Damond was shot

By the way The Daily Mail–as usual, British news outlets do a better job than American outlets–has a brief video portraying the alley where Damond was killed from the perspective of the officers as they drove the length of the alley. Striking are the several bright alley lights, and the multiple motion detector activated security lights mounted on garages in the alley. As you watch it, and by all means, please do, keep in mind the human eye would perceive the ambient light as substantially brighter, with more areas of partial light, and with greater resolution, than the camera. Also keep in mind the police are trained to keep their eyes moving at night as the eye sees objects off the center axis better. In other words, looking at something sort of sideways rather than directly at it at night helps substantially.

One additional thought: news reports do not say whether Noor’s window was down. Why is this important? Any professional officer in that situation would have rolled down his window–he’d always have it at least partially down–otherwise how could he possibly hear anything outside his vehicle? As I noted in previous articles (the SMM Damond archive is here), the officers shouldn’t have been in their vehicle at all, but to not have their individual windows down? That might clarify at least something about Officer’s Noor’s abilities and priorities.

As you read this update, gentle readers, please keep in mind we are far from having a definitive set of facts in this case. I’m trying, with the information available, to explain what appears to be happening, and what, if the police are acting professionally, should be happening. That said, there is reason for concern.

In Update 6: Transforming Policing, Demonstrating Allegiance regular reader “pre-Boomer Marine brat” commented:

“One of the conservative blogs (which, btw, I don’t trust without corroboration) says the BCA searched Damond’s house the night she was killed, specifically looking for controlled substances.

If it did, would that be normal SOP in such a situation?”

All searches and seizures by the police–they’re part of the executive branch of government–are governed by the Fourth Amendment to the Constitution:

“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, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.”

Whenever lawyers are arguing a police search was unlawful, they’re arguing the Fourth Amendment. Notice the Amendment say unreasonable searches and seizures are prohibited, therefore some are reasonable, and it explains what makes such searches reasonable: An oath or affirmation–an affidavit–providing probable cause to believe that the police will find  evidence or the fruits of a crime at a specific place, or a specific person that has committed a crime to be seized at a specific place. Probable cause is facts or observations that would cause a reasonable police officer to believe a crime had been committed, and a specific person or persons committed it. To understand how search warrants work, consider this actual case I worked:

A young man–let’s call him Steve–came to my office about 1000 (10 AM) and told me the previous evening he stopped at the apartment of a couple of acquaintances, and noticed a great deal of consumer electronics laying around. He asked about it, and they told him, in great detail, about stealing it all, providing dates, times and places. They particularly told him about stealing four wheels and tires from a Honda parked by a garage in an alley. They climbed to the roof of the garage to unscrew a security light, and left the Honda on blocks. They told Steve the wheels and tires were in their unit’s storage closet in the laundry room.

Steve said he later realized he didn’t want to get caught up in their crimes, so he came to the Police. I was then specializing in burglaries from motor vehicles, so I received a copy of all related reports every morning, and recognized the Honda report, and from descriptions of the other property Steve saw, several others. Checking all recent reports, I found no less than 12 separate burglaries, including residential burglaries, committed within the last week matching Steve’s property descriptions.

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Fourth Amendment Exam Question #1: Did Detective McDaniel have sufficient probable cause to obtain a search warrant?

Answer: Yes, but… Warrants have to contain recent information. Steve’s information, only about 14 hours old, was pretty recent, but I knew the burglars had no idea I was on to them, so I paid a visit to their apartment. I walked up to the door–no one was home–and through the open blinds of the front window, could see quite a bit of the stolen property Steve described, and could match it with stolen property from the reports. I went to the common laundry room–open to the public–and noticed the plywood door to their numbered storage closet was slightly warped outward. Shining my flashlight through the gap, I identified the stolen tires and wheels. I could have received a valid warrant without my observations, but it was tasteful icing on an already tasty cake.

I wrote an affidavit, which introduced me and my experience and duties, and included, in great detail, all the case report numbers, all the information Steve supplied, and my observations, all of which particularly described the crimes, the stolen property, and where, specifically, it could be found. All of the crimes involved were felonies. At the end of the affidavit, I swore that everything therein was the complete truth.

By then it was 1400 (2 PM). I took the affidavit to a judge who authorized and signed the warrant. I brought along a completed warrant with all the same information included for his signature–that’s standard procedure almost everywhere. I borrowed two patrol officers and a van, got a key from the landlord, and seized a huge amount of stolen property; it nearly filled the van. The burglars weren’t home then either, but I got in touch with them and they came to my office to confess and be arrested later. After seizing all the property, I spent most of the night at the evidence facility carefully photographing, matching the stolen property to the right reports, and cataloguing everything I seized to include on the Return, a document I returned to the judge first thing the next morning–he gave it to the Clerk of Courts–for the file.

Let’s fast forward to Minneapolis and the BCA, circa 16 July 2017. Justine Damond was shot just before midnight on the 1th. Station KSTP reports:

“According to records filed in court, the scene was searched at 6:30 a.m. on July 16 – roughly seven hours after the incident.

Among the items submitted for analysis were:

*Cartridge cases found on ground near the passenger side of the squad car

*A cell phone found on the ground near Damond

*A bloodstain found on the rear driver side door of the squad car

*A ‘latent print lift(s)’ described as a gel lift from dust on the rear cargo door window of the squad car

*A ‘latent print lift(s)’ described as coming from exterior surfaces of the squad car “

This evidence was, according to news reports which speak of “warrants,” not a “warrant,” this evidence was collected under an actual warrant, which on first thought, appears to make little sense. Damond was shot in an alley–public property. The police would need no warrant to search there. There is an additional possibility: Damond may have fallen on private property, or some evidence may have ended up on private property. In that case a professional agency, and I’m assuming the BCA is a professional agency until there is reason to think otherwise, would take the time to get a warrant, just to be safe. Any citizen can consent to a search, but in capital cases, it’s always smart to dot every “i” and cross every “T.”

Why would they lift latent prints from the exterior of the police vehicle? To try to establish Damond touched it. However, if the vehicle was dusty, it’s unlikely they’ll get anything identifiable. If this was their purpose, it indicates by 0630 the morning after she was shot, the BCA was already pursuing the idea Damond “slapped” the police vehicle, and this could in some way explain or mitigate her death. By itself, this does not suggest the BCA is corrupt or trying to explain away her death to protect Noor. It could be nothing more than the BCA doing a complete and competent investigation.

This additional report, however, is reason for concern. KSTP reports: 

“Minnesota Bureau of Criminal Apprehension investigators were granted permission to search Justine Damond’s home hours after she was shot and killed by a Minneapolis police officer, according to court records. [skip]

According to court documents, investigators applied for the warrant on the following grounds:

*The property or things above-described was used as a means of committing a crime

*The possession of the property or things above-described constitutes a crime.

*The property or things above-described is in the possession of a person with intent to use such property as a means of committing a crime, or the property or things so intended to be used are in the possession of another to whom they have been delivered for the purpose of concealing them or preventing their being discovered.

*The property or things above-described constitutes evidence which tends to show a crime has been committed, or tends to show that a particular person has committed a crime.

Asked if that means the BCA considers Damond to be a suspect, spokesperson Jill Oliveira replied via email:

‘No, an individual involved in the incident.”

Please keep in mind, gentle readers, I have not seen the affidavits or warrants. I have, in fact, e-mailed KSTP asking for copies of them, but they have not yet responded, and I doubt they will. After all, I’m just some scruffy little blog in Texas. My analysis relies on what KSTP has provided.

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Among the “above-described things” listed on the affidavit were, according to the article: blood, bodily fluids, writings, weapons and controlled substances.

This appears to be a classic fishing expedition: an improper/unlawful search for the purpose of finding something, anything, a corrupt police agency can use against the deceased victim to discredit them, and/or to exonerate the officer. Based on what information I have, which is admittedly incomplete, it is possible the BCA had no grounds, no professional reason, and certainly no probable cause to believe anything illegal could be found in the home of Damond’s fiancé.

Damond was killed in an alley about a half-block from her home. After being shot, she did not return to her home, but died on the scene. Her home was not, apparently, in any way involved in her death and was removed by time and distance from the only crime scene involved. She was carrying only a cell phone, and was wearing pajamas. What possible reason could the BCA have to believe she was using controlled substances or any could be found in her home? Blood? Writings related to her death? Weapons? Where is the probable cause to suggest Damond committed a crime–any crime? Where is any probable cause that could in any way conform to the Fourth Amendment’s requirements for a search warrant?

I suppose it’s possible there could be facts or circumstances that would make a search of Damond’s home reasonable, but I cannot imagine what they could possibly be, nor could an Emeritus law Professor KSTP interviewed. He actually got to read the affidavit and warrant:

“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.”

I’ll know more when and if the documentation is made available, but for now, I’m disgusted–not amazed–any competent judge would have authorized what appears to be nothing more than an obvious fishing expedition, not for honest police in search of legitimate evidence they have reason to believe exists, but corrupt cops desperately searching for a crime to pin on the dead victim. Unfortunately, lazy or corrupt judges authorize fishing expeditions far more often than people know. There is one more bit of information in the KSTP article that is particularly telling:

“According to court documents, investigators did not end up taking any evidence from Damond’s home.”

They apparently found nothing. No drugs, no writings, no fluids, no weapons, no blood, nothing. The return for this particular affidavit and warrant would contain that information. Even if one finds nothing, that too must be included on the return for the court. No matter how good an honest officer’s information is, they occasionally find nothing, or less than they hoped. That alone does not suggest an honest officer lied on an affidavit. The bad guys could, for reasons unknown, have moved the property. The informant could have made an honest mistake.

Unfortunately, in the Justine Damond case, unless that warrant specifically provides information necessary to meet the requirements of the Fourth Amendment, and Professor Daly, who has seen the documents, says it does not, there is reason to believe the BCA is not a professional, honest agency, and may be searching for a way to protect Officer Noor for political reasons.

Sadly, fishing expeditions are common. All honest officers know about them and know unscrupulous fellow officers that have done them. I’ve written about such searches, for example, in the Erik Scott case, and the Jose Guerena case

Mayor Hodges gettin’ down with the girls in the ‘Hood

Take this in concert with the obvious, and embarrassing, political actions and leanings of Mayor Betsy Hodges, the general political climate of the Twin Cities, and the troubled racial and criminal history of the Twin Cities’ Somali community, and people who love the Constitution and the rule of law have reason to be worried.

I’ll have much more in the next update, which will address comments about Officer Noor from a neighbor, comments of those running for mayor–they’re even more unhinged than one might imagine of nine leftists running for office in a leftist city–and analysis of male cultural issues that could conceivably have some bearing in this case.

About mcdanielm 351 Articles
Mike McDaniel is an Air Force veteran, a veteran of civilian police work, a classically trained singer, high school English teacher, certified firearm instructor, woodworker, fencer, author, playwright, bicyclist and blogger. His home blog is Stately McDaniel Manor.