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If there's no specific information about weapons in the house, then the officer may throw in a phrase to the effect that, in his vast drug-busting experience, "it is quite common to encounter firearms on the person or the premises where the warrant is to be executed." And he will almost certainly conclude that a no-knock is necessary "to prevent the destruction of any contraband."
Those are just about all the magic words you need to get a no-knock approved by a Denver judge and a deputy district attorney. "We're looking for probable cause, and that's really a minimal standard," says Denver District Attorney Bill Ritter. "It doesn't mean mathematical certainty, beyond a reasonable doubt, or clear and convincing evidence. All it means is more probable than not. We're looking for that level of proof."
Under current state law, Ritter's office isn't required to review a no-knock request unless the police or a judge asks it to. As a matter of policy, though, the Denver police are supposed to get a deputy DA's okay on every search warrant, no-knock or otherwise; if no prosecutor can be found, then the procedure is to seek a police supervisor's approval.
But many warrants bear no indication that anyone from the district attorney's office ever saw them. A Westword review of no-knock warrants issued over a five-month period in 1999 found that only about 50 percent of the warrants carry a deputy DA's signature. (The Bini warrant for 3738 High was approved by deputy DA Carlos Samora.) Ritter says that many of the warrants are read to his deputies over the phone, a circumstance that may not be noted on the warrant itself.
"Quite frankly, we don't know if there are occasions when they don't get ahold of us or they don't try," Ritter says.
The district attorney also has no statistics on how often his deputies turn down a warrant request. Ritter says it's in a prosecutor's interest to suggest changes or even send the cops back to gather more evidence to shore up a weak warrant, since his office may eventually have to defend the search in court, but he has no way to gauge the frequency with which no-knocks are challenged. "How often do we have hard conversations about there not being enough?" he asks, then answers, "I don't have a sense of that."
At Webb's request, Ritter, Denver Manager of Safety Butch Montoya and Denver County Court Judge Robert Patterson are now engaged in a review of the city's no-knock procedures. "We really have to make a public-policy decision in the city about whether we should raise the bar, because immediate-entry warrants are so invasive," Ritter says.
But the Justice for Mena Committee has called for a moratorium on no-knocks until more stringent standards are in place. "If there's a mentality among the judges or in the DA's office that they're a warrant-signing factory, then every citizen in this city should be afraid for their lives," says LeRoy Lemos. "Because the same thing that happened to Ismael Mena can happen to them."
Ritter insists his office's review of warrants amounts to more than rubber-stamp approval. With regard to weapons, for example, his office requires "specific" information. "You don't have to establish that they're David Koresh," he says, "but it should not be boilerplate, that 'it is known that drug traffickers keep weapons.' It doesn't take much -- a concealed-weapon arrest of one of the residents five months prior. An aggravated-robbery conviction. The issue is officer safety."
Few warrants, though, make any specific mention of weapons. In most cases, the officers are relying on the other requirement: contraband that can be easily destroyed. "You could almost always make the case," Ritter says, "because of the way drugs are dealt -- heroin in small balloons, cocaine in crack form, methamphetamine in small pills -- that it could be destroyed. If you say, 'In my experience, this is easily destructible' -- boom, you've met the legal test for a no-knock warrant."
The ACLU's Silverstein takes issue with that standard. In 1997, the Supreme Court ruled in a Wisconsin case that police officers can't justify no-knock raids solely because dealers tend to flush their stash down the toilet when the police show up. Each warrant must be supported by the "particular circumstances" of that case: "While drug investigation frequently does pose special risks to officer safety and the preservation of evidence, not every drug investigation will pose these risks to a substantial degree," Justice John Paul Stevens wrote.
"It's become easier and easier for law enforcement to get into people's homes, to dilute or abolish the protections of the Fourth Amendment," Silverstein says. "But you can't make the stereotypic conclusion that drugs equals weapons or that drugs equals destruction of evidence."
Yet Denver police officers make those conclusions all the time. Judges and district attorneys are in the position of relying on the officer's word that the "particular circumstances" justify a no-knock; frequently, the officer's version of events is based on information supplied by a confidential informant that neither the prosecutor nor the judge will ever meet. In all likelihood, the informant is a drug defendant himself, turned to the cause of righteousness by a generous offer of a break on his own case and possibly some modest compensation for his time. And since the targets of the raid are charged on the basis of evidence obtained with the search warrant rather than the previous controlled buy, the police are rarely compelled to produce their sources.