A Bogus Warrant, a Burned Baby, and an Immoral War
A cop's indictment casts light on a drug raid that nearly killed a toddler.
Shortly after midnight on May 28, 2014, Habersham County, Georgia, Deputy Sheriff Nikki Autry asked Magistrate Judge James Butterworth for a "no knock" warrant to search a house on Lakeview Heights Circle in Cornelia. In her application, Autry, a special agent with the Mountain Judicial Circuit Narcotics Criminal Investigation and Suppression Team, said a confidential informant "was able to purchase a quantity of methamphetamine from Wanis Thonetheva" at the house she wanted to search. She said the informant was known to be "true and reliable," having "provided information in the past that has led to criminal charges on individuals selling illegal narcotics in Habersham County." She added that she had personally "confirmed that there is heavy traffic in and out of the residence."
According to a federal indictment announced last week, none of that was true. The confidential informant was newly minted and therefore had no track record, and it was his roommate who claimed to have bought meth from Thonetheva. "There was no police surveillance to verify the purchase," federal prosecutors say. Nor did Autry monitor the house to verify that a lot of people were going in and out. According to the indictment, she made up those crucial details to manufacture probable cause for a search.
Ordinarily such misrepresentations might never come to light, and if they did few people aside from defendants and their lawyers would care. But in this case, the warrant that Autry obtained led to a drug raid that critically injured a toddler, which made it a national news story. Images of a smiling little boy juxtaposed with pictures of him lying unconscious in the hospital, horribly disfigured by a flashbang grenade tossed into his playpen during the raid, prompted much discussion of police tactics but not enough consideration of the goals served by those tactics. The war on drugs, as the name suggests, is inherently violent, and as long as it continues we are sure to see more tragedies like this one.
When Habersham County sheriff's deputies and Cornelia police officers crashed into the house on Lakeview Heights Circle a few hours after Autry got her warrant, they did not find any of the items she predicted would be there. There were no drugs, no weapons, no piles of cash, no electronic scales or drug packaging, no records of illicit sales. And there was no Wanis Thonetheva, who was arrested at another house down the street later that morning, unarmed and offering no resistance.
Instead the heavily armed cops who invaded the home identified in Autry's warrant found Thonetheva's uncle, Bounkham Phonesavanh, who was staying at his sister's house with his wife, Alecia, and their four young children—19-month-old Bounkham (a.k.a. Bou Bou), 3-year-old Bounly, 5-year-old Malee, and 7-year-old Emma—because a fire had destroyed their home in Wisconsin. It was sometime around 3 a.m., and the Phonesavanhs were sleeping.
When Alecia Phonesavanh heard Bou Bou screaming, she thought he was simply frightened by the armed men who had burst through the door. Then she saw the charred remains of the portable playpen where Bou Bou had been sleeping, and she knew something horrible had happened. The cops, who told her Bou Bou had merely lost a tooth, would not let her see him.
Bou Bou was rushed to Grady Memorial Hospital in Atlanta, where he was placed in a medically induced coma. At first it was not clear whether he would survive. The flashbang grenade had exploded in his face, blowing off part of his nose and upper lip while causing severe burns and a deep chest wound. He was released from the hospital after a month but has had to undergo a series of surgeries that will continue into adulthood. His parents, who had no health insurance, say their medical bills already exceed $1 million.
Habersham County Sheriff Joey Terrell initially promised to cover Bou Bou's medical expenses, but the Habersham County Board of Commissioners reneged on that commitment. Last February, Alecia and Bounkham Phonesavanh filed a federal lawsuit against Terrell, Autry, and seven other police officers who were involved in planning, executing, or supervising the raid. In April the Phonesavanhs agreed to drop their claims against Habersham County in exchange for a $1 million settlement.
Terrell blamed Bou Bou's injuries on Wanis Thonetheva, who was not even living in the house at the time and surely did not launch a paramilitary assault on an innocent family in the middle of the night. It was the police who did that. Terrell and Cornelia Police Chief Rick Darby said their officers never would have used a "distraction device" if they had realized there were children in the house. A report on the raid provided by Terrell implied that the police did all they reasonably could to make sure there were no children in the home. "According to all the information able to be gathered at the time," it says, "there were no children or dogs at the residence."
But the Phonesavanhs had been living in the house for about six weeks, and anyone paying attention would have noticed signs of children. In their lawsuit, the Phonesavanhs note that "a clearly identifiable case" for Bou Bou's portable playpen was sitting outside the house, next to the door breached by the SWAT team. The minivan parked in the driveway through which the cops approached the house contained four child seats and "had figures affixed to the rear window indicating the presence of a family with several children." In the yard were "children's toys, including a plastic child's pool." Even if the cops missed these clues in their hurry to break down the door, rudimentary surveillance prior to the raid would have revealed the presence of children, who frequently played with their father in the front yard.
Last October a Habersham County grand jury rejected criminal charges against Charles Long, the deputy who tossed the grenade that landed in Bou Bou's crib, concluding that his carelessness did not amount to criminal negligence. The jurors, who faulted Autry for a "hurried" and "sloppy" investigation, said they "gave serious and lengthy consideration as to whether to recommend criminal charges" against her. They decided that her resignation "in lieu of possible termination," combined with her surrender of the "peace officer certification" that enabled her to work in law enforcement, was "more appropriate than criminal charges and potential jail time."
Evidently John Horn, the acting U.S. attorney for the Northern District of Georgia, disagrees. The allegations about lying on the warrant application, which were not considered by the local grand jury but were included in the Phonesavanhs' lawsuit, go beyond mere sloppiness. By falsely obtaining a search warrant, Horn says, Autry knowingly violated Bou Bou's Fourth Amendment rights, along with the Fourth Amendment rights of his parents and his aunt, the owner of the house. The indictment says Autry also violated Wanis Thonetheva's Fourth Amendment rights, since the same false information was used to justify his arrest.
All together, that's four violations of Title 18, Section 242, which makes it a federal crime to deprive someone of his constitutional rights "under color of any law." That offense is generally punishable by up to a year in jail, but if "bodily harm" results, as happened in this case, the maximum penalty rises to 10 years.
"Our criminal justice system depends upon our police officers' sworn duty to present facts truthfully and accurately," Horn said last week. "There is no arrest that is worth selling out the integrity of our law enforcement officers. In this case, Autry is charged with making false statements to a judge in order to obtain search and arrest warrants. Without her false statements, there was no probable cause to search the premises for drugs or to make the arrest. And in this case, the consequences of the unlawful search were tragic."
All of that is true, but it does not go to the heart of the problem. After all, drug raids based on properly obtained search warrants also can cause injury or death. The Habersham County grand jury, which in some respects was excessively sympathetic to law enforcement, nevertheless got closer to the true cause of Bou Bou's injuries (emphasis added):
The zeal to hold [drug dealers] accountable must not override cautious and patient judgment….This tragedy can be attributed to well intentioned people getting in too big a hurry, and not slowing down and taking enough time to consider the possible consequences of their actions….While no person surely intended any harm to a young child, quite simply put there should be no such thing as an "emergency" in drug investigations….
No seizure of evidence or apprehension of a criminal for a drug offense warrants anything but caution and careful planning. There is an inherent danger both to law enforcement officers and to innocent third parties in many of these situations. The hard work and effort brought to apprehend suspects and seize evidence must always be tempered by the realization that no amount of drugs is worth a member of the public being harmed, even if unintentionally, or a law enforcement officer being harmed….
We recommend that whenever reasonably possible, suspects be arrested away from a home when doing so can be accomplished without extra risk to law enforcement and to citizens. Going into a home with the highest level of entry should be reserved for those cases where it is absolutely necessary. This is to protect both citizens and law enforcement officers. We have heard evidence that many drug suspects often initially believe a law enforcement entry is in fact a drug robbery. In an instant, they reach for a weapon or take an action that makes a situation escalate. This is dangerous to all involved, and neither the public nor law enforcement officers should be in this dangerous split second situation unless it is absolutely necessary for the protection of the public, which is the highest concern for our law enforcement officers under their duty.
At bottom, this sickening fiasco is about the inappropriate use of force. The grand jurors no doubt were right that less promiscuous use of paramilitary tactics would reduce the chances of injury or death. But that risk cannot be eliminated as long as violence is considered an appropriate response to the consumption of psychoactive substances that offend politicians. If "no amount of drugs is worth a member of the public being harmed," how can the war on drugs be justified?
This article originally appeared at Forbes.com.