Was the Search Warrant for the Drug Raid That Killed Breonna Taylor Illegal?
The information in the no-knock warrant application was based purely on guilt by association.
When Louisville, Kentucky, Detective Joshua Jaynes applied for the no-knock search warrant that led to Breonna Taylor's death last March, he said he expected to find "illegal narcotics or paraphernalia," "proceeds from drug trafficking," or "paperwork that may be a record of narcotics sales or that may indicate the transport, concealment or sales of narcotics." But after three plainclothes officers broke into Taylor's apartment around 12:40 a.m. on March 13 and shot the unarmed 26-year-old woman dead, they did not find any of that. Why did they think they would?
That question goes to the heart of the legal justification for the raid, during which Tayor's boyfriend, Kenneth Walker, fired a shot at the cops, whom he mistook for armed robbers, hitting one of them in the leg. According to a wrongful-death lawsuit filed by Taylor's family, the officers responded by "spray[ing] gunfire into the residence with a total disregard for the value of human life." Taylor's relatives say police fired more than 20 rounds, at least eight of which struck Taylor, an African-American EMT and aspiring nurse with no criminal record. Two days ago, Louisville Mayor Greg Fischer said the city will try to fire Detective Brett Hankison, who is accused of "blindly" shooting 10 rounds into Taylor's apartment.
The tactics the cops used during the raid have generated justified outrage locally and nationwide. But the case, which has been frequently cited in the protests against police brutality triggered by George Floyd's death, also highlights the problem of inadequate judicial oversight, which allows operations like this one to proceed based on meager evidence.
When he applied for a warrant to search Taylor's apartment, Jaynes also asked for four other warrants: one for a suspected "trap house" allegedly operated by Jamarcus Glover and Adrian Walker (no relation to Kenneth Walker) at 2424 Elliott Avenue, two for vacant homes near that address, and one for a suspected stash house on West Muhammad Ali Boulevard. USA Today notes that Jefferson County Circuit Judge Mary Shaw approved all five warrants "within 12 minutes."
In his affidavit, Jaynes described substantial evidence that Glover and Adrian Walker were selling drugs. He noted pending drug charges against both men; his observation of "15-20 vehicles" going to and from the house at 2424 Elliott Avenue "within a short period of time"; surveillance camera footage showing Glover dropping and concealing "a large, blue cylinder-shaped object" next to rocks near that address; video of both suspects going back and forth between the stash and the house; a December 30 search that found "narcotics and firearms" in the house; and a January 2 traffic stop for speeding that discovered "a small amount of marijuana" and "a large undetermined amount of US currency located in the center console" of a red 2017 Dodge Charger driven by Adrian Walker.
By contrast, the evidence implicating Taylor, and thereby justifying searches of her apartment and her white 2016 Chevrolet Impala, was slight. Jaynes said he had seen Glover's Dodge Charger "make frequent trips" between the Elliott Avenue house and Taylor's apartment complex on Springfield Drive, which is about 10 miles away. He also reported that he had observed Taylor's car parked in front of the Elliott Avenue house "on different occasions." On January 16, Jaynes said, he had seen Glover pick up "a suspected USPS package" at Taylor's apartment. Jaynes also claimed he had "verified through a US Postal Inspector" that Glover was "receiving packages" there.
Taylor had dated Glover, and they remained friendly, which would explain the contacts that Jaynes observed. In a May 15 interview with WDRB, the local Fox TV station, Tony Gooden, a U.S. postal inspector in Louisville, said city police had never consulted with his office about the packages Glover received at Taylor's apartment. Gooden added that a different law enforcement agency, which he declined to identify, had asked about the packages in January, when his office concluded "there's no packages of interest going there." My former Reason colleague Radley Balko, writing at The Washington Post, reports that "a source with knowledge of the case has since told me that the packages contained clothes and shoes."
Based on Jaynes' affidavit, Judge Shaw had no way of knowing about the relationship between Taylor and Glover, the contents of the packages, or the conclusion by the postal inspector's office that there was nothing suspicious about them. But if she had spent more time reviewing Jaynes' warrant applications, she might have thought to ask whether there could be an innocent explanation for the interactions between Taylor and Glover, which apparently had nothing to do with drugs. Although Jaynes presented compelling evidence of drug dealing by Glover, who was arrested along with Adrian Walker the same night that police killed Taylor, the detective's inferences about her were based purely on guilt by association.
"There was clearly no probable cause to believe drugs were being dealt from her apartment, and no probable cause that Breonna or her boyfriend were doing anything illegal," says Daniel Klein, a former Albuquerque police sergeant who writes about law enforcement issues, in an email. "Yet the assistant district attorney and the [circuit] court judge not only approved the warrant…they approved it to be a no-knock warrant executed in the middle of the night!"
Balko argues that the no-knock warrant was illegal because Jaynes did not cite any information specific to Taylor that would justify dispensing with the usual knock-and-announce requirement. Instead Jaynes offered boilerplate that is commonly seen in applications for no-knock warrants: "Affiant is requesting a No-Knock entry to the premises due to the nature of how these drug traffickers operate. These drug traffickers have a history of attempting to destroy evidence, have cameras on the location that compromise Detectives once an approach to the dwelling is made, and a have history of fleeing from law enforcement." Yet none of that was true of Taylor—another crucial point that a more diligent judge might have noticed.
Despite the no-knock warrant, the officers who raided Taylor's apartment say they did announce themselves—a claim that Kenneth Walker and 16 neighbors disputed. But even if the cops did identify themselves while banging on Taylor's door for 30 to 45 seconds (according to Walker) before breaking it in with a battering ram, that information could easily have been missed by people awakened in the middle of the night. The evidence indicates that Walker—who reported a break-in during phone calls to police, his mother, and Taylor's mother—did not realize the armed men invading the apartment were police officers. Walker was initially charged with the attempted murder of a police officer, but prosecutors dropped that charge last month.
This month the Louisville City Council unanimously approved an ordinance that bans no-knock raids. As Balko notes, however, there is often little practical difference between no-knock raids and knock-and-announce raids, especially when warrants are served while residents are sleeping and police breach the door as they identify themselves or immediately afterward. Still, there is a legal distinction between the two kinds of searches, and the Supreme Court has said no-knock entries require something more than general observations about how certain kinds of suspects have been known to behave, although it also has said violations of that rule do not invalidate the evidence police collect.
"When I was a detective, the D.A. and judges would actually read the warrant," says Klein, who handled many drug investigations during his 20 years with the Albuquerque Police Department. "They took it seriously. There were several times I was told to go back and get more probable cause. That was the right thing to do. Having a D.A. and judge sign/approve a warrant is a check and balance for our system."
The FBI is investigating the raid that killed Taylor. According to the lawsuit by Taylor's family, Hankison, the officer Fischer wants to fire, has a "use of force history" that is "pages long, documenting dozens of situations where he has sent citizens to the hospital for injuries from being tased, pepper sprayed and struck repeatedly in the nose and eyes." The Louisville Metro Police Department recently announced that Detective Jaynes had been placed on "administrative reassignment" until lingering questions about "how and why the search warrant was approved" are resolved.