Friday, February 15, 2019

Warrants, Snitches and Accountability

Local media is reporting some pretty shocking revelations this afternoon about the botched Houston Police Department raid that occurred on January 28th of this year.  As you probably already know, that raid left five HPD officers wounded and two citizens, Dennis Tuttle and Rhogena Nicholas, dead.  In the days following the raid, there were some early indications that there was more to the story than just a simple search warrant execution that had resulted in a gun battle.

For starters, the affidavit supporting the issuance of the search warrant had been reliant on the word of a Confidential Informant (CI) who had allegedly told the police that he had purchased an amount of heroin from a male at 7815 Harding Street.  The CI also allegedly told the police that the male at the residence had more heroin inside the house and that he had been in possession of a 9mm handgun.

Officers used that little tidbit about the 9mm to ask the magistrate who signed the warrant to authorize them to do a "No Knock" warrant, meaning that they had the right to just kick the door to make entry.  When executing search warrants, officers prefer using No Knock for two reasons: 1) officer safety, and 2) preventing the people inside the place to be searched from having time to destroy evidence.  The alternative to a "No Knock" is a "Knock and Announce" warrant, which officers don't like.  A police officer politely knocking on the door of a drug house and announcing he going to come inside is usually the cue for drug dealers to start flushing their product down the toilet.

Unless a warrant articulates a particularized need (normally officer safety) to make entry without knocking, the presumption is that they must do a "knock and announce" before making entry.  Usually, officers point out the danger to themselves by describing their belief that a person with a gun is inside the place to be searched.  Since the vast majority of people who deal drugs out of locations are armed, it should not be surprising to know that "No Knock" warrants are quite common in narcotics search warrants.

So, when the affidavit supporting a No Knock entry into 7815 Harding Street reported the individual inside the residence had a 9mm, that probably didn't seem to be too big of a stretch of the imagination to the magistrate signing the warrant.  As far as warrants go, there was nothing facially out of the ordinary about the one in this case.

But when the shootout was over and the smoke had cleared on January 28th, the reliability of the information in the search warrant came into question because there were two key things missing from the evidence recovered:  a 9mm handgun or any trace of heroin.

My initial reaction to this lack of evidence to support the CI's claims in the affidavit was that it must have been a lying CI.  CIs, as a general rule, aren't the most reputable of people.  In many cases, a CI has been charged with his or her own charges and are "working a contract" with narcotics officers.  "Working a contract" means that they have a signed agreement with the D.A.'s Office and narcotics officers that they will provide information resulting in the arrests of other drug dealers.  Those contracts are generally quantity based -- meaning that the CI will provide information that leads to the recovery of a set amount of drugs (like a kilo of cocaine, for instance).

Because of that, CIs have a tremendous amount of motivation to exaggerate what they say to their narcotics officer "handlers."  By necessity, CIs interact with suspects outside of direct supervision from their handlers.  They typically don't wear bodycams or "wires" that could be discovered when they make purchases.  They often go inside premises to make the purchases and their handlers lose a direct line of sight on them.  To bolster the CI's credibility, officers search them for drugs before sending them inside to make a purchase.  This assures that the CI isn't planting his or her own evidence.  The officers also provide them with marked money to make the purchase, in the hopes that once an arrest is made, the target suspect will have that marked money in his or her possession.

Other than those two minor safeguards, however, there is no real accountability in how an undercover drug purchase is described by a CI to an officer.  There is no verification of whether or not a suspect is really seen with a gun.  There is no verification of whether or not the CI really saw more drugs inside the premises.  All an officer can attest to in an affidavit for an application for a search warrant is to attest that the CI has provided good and reliable information in the past.

So, when there was no heroin and no 9mm recovered on Harding Street, I figured that HPD narcotics had been taken for a ride by a dishonest snitch.  In this post, I predicted that an investigation into the botched raid would lead to some embarrassment for HPD, but probably nothing criminal.

Today's revelations may have me eating my words about that.

Houston Police Chief Art Acevedo today announced that the "confidential informant" utilized by HPD Narcotics in this particular raid didn't actually exist.

According to the Houston Chronicle, Officer Gerald Goines (who was severely wounded in the raid) provided investigators with the name of the CI who had provided him with the information that he used to get a search warrant.  In the subsequent investigation, that CI denied having ever gone to the Harding Street location or buying drugs there.  Additional interviews with other CIs utilized by Goines found that they had no knowledge of drug activity on the property, either.

More disturbing, according to the Chronicle article is that another one of the narcotics officers, Steven Bryant, had admitted to investigative officers that the heroin allegedly provided to him and Goines by the (apparently fictional) CI was actually heroin that he had gotten from Goines' vehicle.

So, to summarize, a married couple (and their dog) were shot to death by Houston Police Officers who entered into their house with a search warrant that was obtained on the word of a non-existent snitch and planted heroin that came directly from the officer who wrote the warrant.

This is absolutely stunning to me.  In my twenty years of being involved in the Harris County Criminal Justice world, I've seen some dumb mistakes, but this level of corruption is like something out of a movie.

It looks like Joe Gamaldi was a little premature in using this incident to give his "putting dirtbags on notice" speech.

The outlook for Goines and Bryant is pretty grim.  If it is proven that they intentionally lied in an affidavit for a search warrant, that would be a felony.  If a felony leads to a death, there's an argument to be made that they committed a couple of felony murders.

The bigger concern for all agencies who participate in undercover drug buys is that this incident calls into question all undercover buys leading to search warrants.  If a Confidential Informant's reliability was cause for concern, the possibility of rogue officers fabricating CIs and planting evidence is devastating.  The bottom line is that all search warrants are signed off on based on an officer's credibility as he or she relates the facts to a magistrate.  There is nothing more required to verify the veracity of the information contained in the supporting affidavits.

It is a fairly common practice in drug cases for defense attorneys to file a Motion to Reveal the Confidential Informant.  Those confidential informants are usually protected from being identified unless otherwise ordered by a judge.  In my experience, those motions are rarely granted.  My suspicion is that in the aftermath of the Harding Street raid, more and more of these Motions are going to be filed, and Judges are going to feel additional pressure to Order those CIs to be revealed.  If that becomes the norm, you are going to find less and less people willing to work as CIs -- regardless of the legal benefit to them.

The aftermath of the raid on Harding Street is going to have a far-reaching effect that goes way beyond what ultimately happens to Goines and Bryant.  There will be calls for more verification
of information before the signing of warrants, but finding a way to have that verification and not compromise an investigation will be no easy task.

Today's announcement from Chief Acevedo is just the beginning of the fallout that will come from the events of January 28th.  Police officers, prosecutors, defense attorneys, and judges can expect a lot of changes to the way these things are done in the future.

Unfortunately, those changes will be coming too late for Dennis Tuttle, Rhogena Nicholas, and the officers injured in the raid on Harding Street.

27 comments:

Anonymous said...

I agree with you that this is something from a movie. I have never once believed a client who said that a cop planted something on him. It's like the the Chappelle Show bit about sprinkle some crack on him. But I guess it's happening.

Anonymous said...

This is huge stuff, Murray. The CI didn’t exist. The concerned citizen who initially “tipped off” officers to the drugs was the dead lady’s mother. She asked the PD for help because her daughter had been hooked on drugs with her husband in the house on Harding The officer’s car had dope (heroin) inside it when it was proceesed by FIU after the raid. The first officer who was relieved of duty lied about being there and submitted an overtime slip indicating he was present. The tip from the dog being inside the home came from a patrol officer who works that district. A further eview of expense reports seems to indicate a “less than honest” expensing of drug buys and drug buy thefts (“rips”). The whole division has been ordered not to speak to either officer about it and the two involved have lawyered up.(Pretty smart on their part).

HPD came back to the DA’s office last week seeking out a search warrant to get back in the home and do some ballistics they forgot to do on scene. It never came to fruition.... For obvious reasons, now.

I would look for Kimbra to hold MANY press conferences in the near future about the evidence outside the PC. I think its a strech to find a murder charge, but hell, ya just never know with all the crap down there now. Its gonna be a wild ride.

This whole thing is a game changer for HPD and their Chief. This will have far reaching effects and change the way we do business at the CJC like the Joe Campos Torres case did back when it broke. I wouldnt look for much more “transparency” on this beyond what they revealed today.

Anonymous said...

Will there be any investigation into the elderly municipal court judge who signed the warrant? Just how skeptical do these Mykawa judges need to be when presented with these affidavits? Also, since they are not elected, is there pressure to sign for fear of losing their city jobs?

Tom said...

Murray: I can't figure out how no-knock warrants improve officer safety as opposed to a knock and announce warrant. I understand that the officers want to stop people from destroying evidence and that is a laudable goal. But by their very nature, no-knock warrants endanger the police. Officer safety and prevention of evidence are both good but competing goals.
And, this botched raid is a perfect example.
When people kick doors in the wee hours, then come storming in with guns the NRA would tell you that the homeowner has the right to protect himself and his property. It is safer to simply surround the house, then call the homeowner on the telephone and tell him you're the police with a warrant and come out with your hands up. The evidence may be flushed but you won't be carrying dead bodies out of the house.
That's exactly what the FBI did to arrest one of my clients in Bryan some years ago. And they had an arrest warrant for my guy that because of his criminal history carried life without parole.
A compromise solution is to sit outside the house and wait for the people to come out. Then bust them on the street, then search the house. Or just turn off the water to the house before you knock on the door.
As for anonymous saying a felony murder charge is a stretch, I can make a prima facie case for capital murder at least as to the officers who knew of the lies in the warrant affidavit. You've got a double killing and there is no question that the officers who shot that couple intentionally or knowingly caused their deaths. Felony murder as to the officers who knew the affidavit contained perjury should be a gimme. The other officers should be witnesses, not defendants.
You're too young to remember but about 25 years ago, there was another HPD narcotics scandal involving lying on search warrant affidavits. I don't remember how it turned out.
Finally, I notice the police union isn't commenting on the news because it's not conducting the investigation. That didn't stop the president from calling people dirtbags for criticizing HPD when the raid first came under scrutiny.

Anonymous said...

I'd like to thank the chief for his integrity and not allowing this to be just another coverup. But when Kallinen gets finished with this case the city will have to raise property taxes on us for the next two decades. The financial settlement will set a record for the city, and quite possibly for the nation. As well it should. The stench from this will hang like a cloud over HPD for years to come. And Gamaldi, he should stop spending all his time on Facebook (under more than 100 profiles) and initiate a new anti-corruption program. Lastly, we should all encourage Ogg to indict these two officers with the appropriate murder charges and prosecute them with the vigor this case deserves.

Elseis66 said...

Excellent write up Murray

Anonymous said...

Hmmm. From 2 weeks ago

"Anonymous said...
With Kim Ogg seen hugging anti-police protestors and Chief Acevedo having lunch and closed-door meetings, it's only a matter of time before the narrative changes against the officers involved in the raid. Politics have officially entered the building

February 2, 2019 at 9:07 PM"

Anonymous said...

Tom, the only case that comes to mind from that time was the Pedro Oregon case, one officer was charged and the others fired while supervisors were pressured to resign.

Anon 8:32, there is a misconception that a case like this leads to enormous legal settlements when the truth is, they rarely do, at least of the imagined proportions you are describing. Have we even heard from an existing relative yet? If not, old Randy will be hard pressed to find standing to sue on his own but the city will argue the officer(s) were acting outside the scope of their training and legal authority, no reasonable measures left out to prevent such a raid.

"In the subsequent investigation, that CI denied having ever gone to the Harding Street location or buying drugs there. Additional interviews with other CIs utilized by Goines found that they had no knowledge of drug activity on the property, either."

Playing devil's advocate for a moment, those who are stating no informant existed are incorrect, that is how you can have one as yet unpublicized but apparently named in the investigation to ask questions. As our host points out, such people are not the most reliable sort and given the results of the raid, it is entirely possible that the CI was used, he did what he said, and now wants to disassociate himself from the entire mess. Since he only spoke with the only officer, the one with severe head trauma from the gunshot wound, he has plausible deniability unless he was recorded. This is probably why the IA investigators questions the officer's other CI's, to rule out a mistake was made in which was sent in, if any. Given reports of the head injury have all been so stark, I'm not sure how successful prosecuting him will be if this all plays out like the latest chapter suggests, HPD's IA investigations always leave me thinking they had a directed outcome and requests for backup material fell woefully short when trying to properly represent a client.

Anonymous said...

Well, I guess this gives the DA's office one way of reducing the caseload of the felony 3s.

Anonymous said...

The punitive damages in this case are going to be high-high-high. The city needs to settle ASAP: https://www.houstonchronicle.com/news/houston-texas/houston/article/Houston-police-officer-in-drug-raid-had-previous-13621276.php.

Anonymous said...

The city will settle for far less than some of you Monday Morning Quarterbacks claim but I'm more interested in what changes will be made moving forward. Some of that depends on the conclusion of the final investigation but one set of cops unable to find a snitch doesn't mean he's not a real person. What's lacking in the coverage is the context of much of this, just how many raids does HPD conduct in a given year, how many cases has this cop been the sole lynch pin for, and so forth. The last raid anything like this that was screwed up was over 20 years ago, a reportedly lazy cop is not in charge of these raids, and exactly what each member of the raiding team knew what comes to mind. Many questions arise and heads will roll but I mainly care about what solutions come out of this.

Anonymous said...

-Just how skeptical do these Mykawa judges need to be when presented with these affidavits?
Skeptical enough to look an officer in the face and call him or her a liar. That's how skeptical. Otherwise, the warrant gets signed.

-Also, since they are not elected, is there pressure to sign for fear of losing their city jobs?
No.

Anonymous said...

Anon 6:42,
while city judges are not elected, their appointments are at the whim of the Mayor and they can be be fired at will. It is not uncommon for a judge unwilling to tote the line to be sent to one of the satellite courts or simply not have their appointment renewed when their four years are up.
As far as skepticism toward an affidavit, without very good cause to "look an officer in the face and call him or her a liar" such an associate judge will be gone in no time because while they can decline to sign any such documents, the court administration will hold them accountable for making slanderous statements. If HPD's narcotics raids are as uneventful as previous commentators have claimed with one bad raid every 20+ years, exactly how skeptical should a judge be when signing off? The officer will just shrug his shoulders, walk to the court next door, and get a different judge to sign, letting his supervisors and/or union know about the first judge. If the officer's paperwork is not in order, it will be on the officer but otherwise...

As more comes out about the events leading up to the raid, more questions come to mind about how much supervision these officers had. Media accounts claim the raid was vetted by high level employees, perhaps Captain or Assistant Chief level. Given the initial spin Chief Acevedo put on this entire affair, praising him seems a stretch of the imagination to me, he's been in place for two years, hand selected the leaders of the division, and milked the raid multiple times a day for the publicity. As such, he can now enjoy the hot seat that goes well beyond just the alleged misconduct of an officer or two.

Two people are dead, the city will likely have to shell out anywhere from half a million to a million dollars in a settlement, and no one is talking about what layers of accountability will be added to prevent such a raid from happening again, twenty years from now or not.

Anonymous said...

Some of you are out of your minds. Officer Goines' has a LONG HISTORY of bad deeds and should have been terminated decades ago. A "half a million to a million dollars" is laughable. Hell, I could have the city settle for that amount today. I remember an incident so similar to this Goines could have used it as a blurprint. Look up Kathryn Johnston shooting for the details. I think her family settled for something like 5 million. Depending on who the families retains, I'm certain these will be very large settlements. This case will also be a litmus test for Ogg. Will she go for felony murder and actually take it to trial, or misdemeanor plea bargain instead. Not a good time for trust in Texas police right now. First the one in Dallas who was so stoned she murdered a man in his own apartment, and now there's this.

Tom said...

One solution would be to get rid of no knock raids once and for all. There is no way to justify them given the problems they cause.

Anonymous said...

Anon February 17, 2019 at 2:18 PM,
Given the facts of that case in Georgia were so different, adding in the difference in local juries, I think that settlement might be on target unless much more damaging facts come out. Under no circumstance do I see Kim Ogg trying the case herself, even as second chair. Talk of settlements and plea bargains might be premature given there is a great deal yet to be disclosed, not to mention we have to rely so heavily on city sources.

Anonymous said...

Whenever there is a case of officers cutting corners and getting sloppy, look for excessive pressure from the supervisors and command staff to produce the numbers. It may go all the way to the mayors office to produce statistics for the upcoming elections. It happens with everything from traffic tickets, homicide clearance rates, and narcotics arrests. The officer in question had a disciplinary history but, he produced the numbers that kept management happy.

Anonymous said...

Acevedo is taking the right steps to get this situation under control before it gets any worse. These incidents of police malfeasance make our jobs harder as a large percentage of jurors we're seeing now aren't the usual one's we had in the past. Many are younger who recently voted for the first time and don't blindly support law enforcement. https://www.chron.com/news/houston-texas/article/Houston-police-to-end-use-of-no-knock-warrants-13626158.php

Thorhees21 said...

Will we ever know why this residence/couple were targeted by Goines?

TriggerMortis said...

So in yesterday's news coverage Ogg is quoted as saying she plans to review some 1400 cases in which Goines was involved. That's right, 1400! Unless she's planning just a cursory review, she could be busy well past the next election cycle. This Goines guy sounds like a dirty badge going back years and years. But the brass never suspected anything!?

Good grief, perhaps we really do need comprehensive police reform after all. Either they knew and didn't care as long as he produced the results that made them all look good on paper, or they're simply too stupid to be in their positions. Goines reminds me of Officer Noe Juarez, who was also dirty but no action was taken until he drew the attention of the feds.

Anonymous said...

Trigger, if you were familiar with how HPD picks a scapegoat, you probably wouldn't say that. All we really have right now is HPD claiming a set of facts, and only a narrow set of facts that suit their narrative, but no verification of even the most basic claims they are making. That doesn't exonerate officer Goines in the slightest but given the city has a lot on the line in terms of lawsuits, I wouldn't jump in bed with them just yet.

Goines has been with HPD for about 35 years and his disciplinary record is almost sparkling compared to some of his peers that I've dealt with. In all those years as a highly productive officer in high risk divisions, he has a couple of cases where an allegation exists that misconduct took place. There's no evidence of large scale misconduct by the officer so making him your champion for reform is about as wise as BLM championing Micheal Brown.

As far as the case review by the DA's office, you raise some good points. Exactly what will they be looking for to act upon? I'll bet most of the older cases lack any substantive notes and even assuming they take the stance that any case the officer has touched is tainted, they'll need something of substance to act upon. If a defendant or his lawyer could have raised independently verifiable facts to overturn their conviction, they should have done so already.

It might help facilitate some of the blame to note that within a short time of police chief Acevedo's appointment, virtually all of HPD's command staff retired, city-demanded changes in pensions even singling them out to shuffle them off to new careers elsewhere. Many of their managers have since departed as well, the Chronicle reported on several occasions how many new Captains were serving since Art came to Houston. Given chief Acevedo's own sorted past in California and Austin, I can see why so many left but it also supports some skepticism of his personal narrative regarding officer Goines. As far as officers hired under quotas like Juarez (see Nugent v. City of Houston), until he was caught working with his kin tied to gangs, what would cause any suspicion to act upon?

Once all the details are out, all of us armchair quarterbacks can banter back and forth regarding suggested reforms but stating the entire department is out of control requires the assumption that is truly is out of control, a single screwed up raid in over 20 years hardly justifies painting with such a broad brush. HPD engaged in hundreds upon hundreds of raids every year with little fanfare now some want to rewrite history based on a single raid we don't even have the details for...

Anonymous said...

Everyone is just standing by watching idly as Ogg disassembles the entire criminal justice system in Harris County. She should know as well as anyone else in that office that sometimes our brave officers have to frame criminals. It's not like this doesn't happen at every police department in the country. She's undoing all the hard work it took to put 1400 criminals behind bars and she's making both this city and our courageous officers unsafe. Those who choose to make enemies with police better be prepared to make friends with criminals. https://www.chron.com/news/houston-texas/article/2nd-drug-case-involving-embattled-Officer-Gerald-13642869.php

Texas Justice said...

Tom, the previous scandal you're talking about is HPD Southeast Drug Tactical Squad. Several officers were indicted for filing bogus CI warrants. The actual informant who blew the whistle on the cops were Jamacian Mike.

TriggerMortis said...

Well, as much as we may complain about HCDA, it could be a lot worse: https://www.wacotrib.com/news/courts_and_trials/more-twin-peaks-cases-dismissed-by-special-prosecutors/article_d59fcc83-31d1-5d04-bd67-6019398a9d15.htm

TriggerMortis said...

Thanks for the insight, Joe. I can appreciate that as president of HPOU your job is to support the officers but you and I both know that Goines would have been terminated decades ago had he worked at just about any other department in the country. The fact is, Ogg isn't Lykos, or one of the Anderson Twins, and is going to put your guy on trial. And since he's black and the victims were white, jurors are going to find him guilty. If I were in your shoes I'd pick and choose officers more deserving of your defense. The public bears witness to your unfailing support of Goines and it makes you appear to back even guilty cops. Even with strong union support an officer in Florida was convicted of murdering an innocent man yesterday. Know when to hold them, and know when to fold. https://www.sun-sentinel.com/local/palm-beach/fl-ne-raja-trial-verdict-watch-20190307-story.html

Anonymous said...

Anonymous February 25, 2019 at 1:44 PM, I'm a local officer of many years and I have never seen any such behavior to "frame" a criminal. I've seen policy violations that I had to act upon but never anything of that nature. This is sometimes in direct conflict with what arrested suspects tell their counsel but that is hardly surprising. I don't blame the lawyer for running with those lies, they must feel obligated to work with what they have, but to hear a few of them, no officer has ever made a "mistake" or misunderstood a question, it was all part of a grand conspiracy to nail their client(s) by an evil cabal of officers like they've seen come out of Hollywood. Maybe it makes them feel better when they lose in court but such cases are extremely rare in my direct experience.

Anonymous February 24, 2019 at 6:29 PM, I'd like the context of the entire matter too. Out of 5200 officers, two are being held up as engaging in criminal behavior at the expense of the rest. I don't trust HPD's leadership at all in part because of what you describe. I hear officer Bryant retired so he could finance his defense with his DROP money, his attorney giving him a break in price over old scores with the department.

Brad Walters said...

So did you ever investigate the claim of planted drugs? Ask for fingerprinting of packaging? Make a deal and move on? At least you know better now. I am glad your client was not the guy who supposedly tested positive for coke on his UA. That lawyer got the probation chief fired. Lots of corruption and malfeasance in government, accept that and keep your eyes and ears open.