[B]URLINGTON — In light of a deadly police raid last month, the Vermont chapter of the American Civil Liberties Union is making policy recommendations to limit the use of controversial “no-knock” warrants.
On Dec. 22 officers executed a search warrant at the Elmwood Avenue home of Kenneth Stephens, a suspected drug dealer who had a violent criminal past. The warrant allowed police to enter without knocking to announce their presence.
Stephens allegedly pointed a muzzleloader rifle at officers who entered his home, according to police. A Vermont State Police trooper and a Drug Enforcement Administration agent shot 13 times, killing Stephens, who was struck in the head and torso.
At least one bullet left Stephens’ apartment and reportedly almost struck a neighbor in his home. Local elected officials have since raised concerns about how the raid was conducted, specifically the decision to enter without knocking.
Jay Diaz, a staff attorney with the Vermont ACLU, says that the use of no-knock warrants nationally is connected to an increasingly militarized response to drug dealing in the U.S.
“Given what we’ve seen across the country in the war on drugs, and that the war on drugs may be ramped up here in Vermont, there are steps policy makers, police and the public and could take to try and prevent another tragedy like this from happening in the future,” Diaz said. “Where the war on drugs takes root, we see aggressive police tactics taking root as well.”
Vermont has the opportunity, Diaz says, to learn from the mistakes made in other states and could take policy steps to prevent needless violence, property destruction and violations of civil liberties.
Diaz recently wrote a blog post where he notes that the national ACLU published a report in 2014 that details the increase in militarized combat-style tactics, including no-knock warrants, used to pursue drug dealers. The report concludes that such tactics often “results in tragedy for civilians and police officers, escalates the risk of needless violence,” Diaz writes.
The legality of no-knock warrants has a fraught history over the past two decades in the U.S. legal system. Diaz says the Fourth Amendment requires police with a warrant to “announce their presence, give the occupant reasonable time to come to the door and provide the occupant a copy of the warrant before they can demand entry to conduct a search,” he writes.
That step is reflected in federal statutes, and is often called the knock-and-announce requirement. However, on at least two occasions the U.S. Supreme Court has upheld the ability of police to forgo knock-and-announce, provided they can demonstrate there is a threat of violence or the destruction of evidence.
Robert Estes, an Essex Police officer assigned to the DEA Drug Task Force, cited both of those factors in his request to U.S. District Court Judge John Conroy for a no-knock warrant they obtained for Stephens’ apartment.
U.S. Attorney Eric Miller has pointed out that the use of no-knock warrants by federal agents in Vermont is uncommon. The U.S. District Court issued 136 search warrants in 2015 and only three of those waived the knock-and-announce requirement, according to figures provided by the court clerk.
The U.S. Supreme Court decisions ensure that federal prosecutors can use evidence gathered from no-knock searches, and district court rulings in Vermont have held that such evidence should not be admissible in court. The Vermont Supreme Court has not ruled on the use of no-knock warrants and the lower court decisions are not binding for other judges in the state, Diaz writes.
State legislatures also have the authority to limit the use of no-knock warrants by state and local law enforcement. Vermont is not among several states with a law defining when officers must knock-and-announce, according to Diaz.
Diaz and the ACLU have a list of four policy recommendations designed to bring greater transparency and oversight to the use of no-knock warrants in Vermont:
• First, state and local police can adopt deployment standards that avoid no-knock warrants wherever possible and prevent local law enforcement involvement where federal authorities attempt a no-knock search that violates local policies.
• Second, communities can engage in strong oversight of their local and state law enforcement agencies to ensure transparency and shape policy around the use of drug war tactics, including Vermont law enforcement’s participation in federal enforcement actions.
• Third, state lawmakers can also enact laws increasing transparency and public oversight, and requiring that evidence obtained in violation of the knock-and-announce rule be excluded from subsequent legal proceedings.
• And, fourth, where problems arise from federal- or state-initiated no-knock searches in Vermont, independent investigators should be appointed to undertake public reports, and independent prosecutors should be used to determine charges.
Diaz said that the Vermont ACLU doesn’t currently have plans to push his recommendations in the legislature or elsewhere, but he said the ACLU would support any efforts to implement them in Vermont.