BURLINGTON — The man shot and killed by officers during a Dec. 22 raid on his Elmwood Avenue apartment allegedly yelled “Who wants to die?” as officers entered his home, according to court documents released earlier this week.
Kenneth Stephens, 56, the target of the raid, was shot in the head and torso, according to his death certificate. Stephens, who had a violent criminal past, was being investigated by the Drug Enforcement Administration for dealing heroin and crack cocaine.
Robert Estes, who is an Essex police officer assigned to the DEA Task Force, applied for and was granted a no-knock search warrant by U.S. District Court Judge John Conroy. The warrant was used to conduct the raid. It was one of three no-knock warrants issued by the U.S. District Court in 2015. The court issued a total of 136 search warrants last year.
Search warrant returns filed in federal court show police recovered what they believe to be heroin, crack cocaine and marijuana from Stephens’ home. U.S. Attorney Eric Miller said Stephens had $2,600 worth of heroin, or 260 $10 bags. The crack cocaine was a “distribution amount,” he added.
State Trooper Matthew Cannon and DEA Agent Tim Hoffman who were first to enter Stephens’ apartment just after 7 p.m. on Dec. 22, a Wednesday, fired 13 shots. One or more bullets passed through the apartment’s walls and nearly struck a neighbor in his home. That raised serious concerns about how the raid was conducted among elected officials.
New court documents filed earlier this week show both men were armed with .223 caliber rifles, though it does not say what type. Officials have refused to name the weapons used in the raid to this point.
The Vermont State Police are investigating the deadly officer involved shooting and were required to file an affidavit for a search warrant in Chittenden County Superior Court in order to access the scene. The DEA will do its own investigation to see if the use of deadly force fits the scope of what’s allowed by federal law, the agency said in a statement.
The affidavit, signed by a judge at 4:05 a.m. the day after the shooting, was not filed with the court until Jan. 5.
In a statement provided to VTDigger Thursday State Police Major Glenn Hall, commander of the Criminal Division, said that his agency is taking steps to avoid a conflict of interest investigating one of its own. He said that State Police were “specifically requested by DEA to conduct the shooting investigation.”
“Historically the Vermont State Police have been called upon to investigate all officer involved shootings in Vermont, to include those involving troopers,” Hall said.
“Officer involved shootings are currently investigated by the VSP Major Crime Unit, whose detectives are assigned out of our headquarters. The detectives that investigate these shootings do not work directly with troopers involved in the shootings,” Hall added.
The affidavit, filed so investigators could access the apartment, provides greater detail on what officers say occurred inside the apartment during the raid. It also confirms what Burlington Police Chief Brandon del Pozo said previously, that one of his officers participating in the raid was wearing a body camera that captured footage.
However, Officer Jason Bellavance, who was wearing the camera, was too far back from the action to see into the apartment and did not capture the shooting on video, according the affidavit. The recording does capture audio of the incident, but thus far State Police have declined to release any records relating to their investigation, including the body camera footage.
A summary of the footage contained in the affidavit states that only the voices of officers shouting “police” to announce their presence and commands such as “don’t move” can be heard in the recording.
The affidavit also contains a summary of State Police Det. Sgt. Darren Annis’ interview with Trooper Cannon, one of the two officers to shoot his weapon during the raid. Cannon is the State Police liaison to the DEA. He was the first inside and the one who said he heard Stephens say “Who wants to die?”
Prior to the raid, Cannon and others were briefed on Stephens’ violent criminal history, which included a shooting that led to a federal firearms conviction. Cannon was also told Stephens had the muzzleloader rifle.
Sixteen officers approached Stephens apartment in a line or “stack formation.” DEA Agent Adam Chetwynd used a battering ram to break in the door. “As the door began to open, Det. Tpr. Cannon could hear yelling from inside,” writes Det. Sgt. Jacob Zorn, summarizing Det. Sgt. Annis’ interview with Cannon.
Cannon said the person inside was “yelling something to the effect of ‘hit it harder’ and ‘who wants to die.’” Cannon said as the door opened he could see Stephens seated in the apartment. Cannon then saw the man “stand and point a rifle directly at (him),” and that “it appeared as if Stephens was attempting to shoot the rifle,” the affidavit states.
“Det. Tpr. Cannon said he began to yell commands and opened fire at Stephens. Det. Tpr. Cannon further advised that at the same time DEA Agent Hoffman opened fire at Stephens. Det. Tpr. Cannon went on to say that during the time that he was giving commands and he and DEA Agent Hoffman were firing at Stephens, Stephens did not lower the rifle,” Zorn writes.
The two stopped firing when Stephens fell to the ground, Zorn writes. Two officers trained as medics began rendering aid to Stephens. Stephens was pronounced dead by emergency medical personnel who arrived a short time later, according to earlier statements from State Police.
Investigators recovered 13 shell casings from two different rifles. Three from one rifle and 10 from another. They recovered three bullets from the walls of the apartment and another bullet from an unspecified location, according to the affidavit.
They also found a Connecticut Valley Arms, Kodiak Magnum muzzleloader rifle. Stephens previous federal firearms conviction would have barred him from owning a firearm, but the federal definition of a firearm doesn’t include muzzleloaders.
State Police are expected to finish their investigation report soon. That report will be turned over to the Chittenden County State’s Attorney’s office and the Attorney General’s office, which will determine if the shooting was justified. No timeframe has been given for how long that will take.