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February 14, 2014
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Utah chiefs criticize bill restricting forcible-entry

Bill would require officers to prove to a judge that there are no less invasive methods possible for obtaining permission for a "no knock" entry

By Ben Lockhart
Standard-Examiner

OGDEN, Utah — Police chiefs in the Top of Utah are displeased with a bill that would give new requirements to police officers trying to obtain forcible-entry warrants.

House Bill 70 would require police officers to prove to a judge that there are no less invasive methods possible for obtaining permission for a "no knock" entry into a residence. The measure is sponsored by Rep. Marc Roberts, R-Santaquin, and promoted by the Libertas Institute think tank.

Roy Police Chief Michael Elliott said HB 70 unfairly expects officers to flawlessly discern dangerous situations.

"It places undue restraint on law enforcement," Elliott said in an interview. "It encourages litigation and discourages officers from (doing their jobs)."

Elliott said officers don't have the benefit of hindsight when conducting high-stakes forcible entries and don't immediately know the least force necessary for making an arrest or obtaining evidence.

"The proper least amount of force isn't known until after the fact," he said.

The bill, which is currently sitting in the House Judiciary Committee, would also require police to present sufficient evidence that they have obtained the correct address for the warrant. Nighttime entries would only be permitted if law enforcement can present a compelling reason why waiting for a daytime entry would allow suspects to slip away or evidence to be destroyed.

But these precautions are already standard procedure when officers bring an application before a judge, said Bountiful Police Chief Tom Ross.

"Every warrant is examined thoroughly before we take action and I support that wholeheartedly," Ross said. "Checks and balances are already in place in the judicial branch and we feel it's best handled that way."

Police are currently required to convince a magistrate of compelling reasons for a nighttime warrant, but their request is measured against the standard of the default law enforcement standard of reasonableness. Reasonableness dictates that police officers use force in a way that an objective and "reasonable" person would see as necessary.

Two well-publicized forcible entries in 2012 served as a catalyst for the bill.

Police officers served a no-knock warrant at Matthew David Stewart's home in Ogden in January 2012. Stewart opened fire on police, killing Weber-Morgan Strike Force officer Jared Francom and wounding six others.

In December of that year, Ogden police rushed into the home of someone they believed to be a military deserter. Eric Hill had answered the door with a baseball bat at 2 a.m. and was temporarily subdued by police before he  convinced them they had the wrong man.

"We recognize that police officers often have a tough job, but we also affirm that government's role is to protect life, liberty, and property," said Libertas Institute President Connor Boyack in a January release. "These simple tweaks to the law will help strengthen that important protection."

The Ogden Police Department responded to the military deserter incident by mandating that all forcible entries be cleared by officers of a lieutenant rank or higher.

Ogden Police Chief Mike Ashment said the department already goes to great lengths to avoid nighttime warrants and forcible entries in general.

"That's the rule. It's pretty much the starting line," Ashment said in an interview. "In order to deviate from that we have to explain or ask for what we call an exception to that rule. ... In my view they're kind of duplicating what is required of us now."

All three police chiefs said in their exclusive interviews with the Standard-Examiner that invading the wrong address is extremely rare. Elliott has seen it happen three times in 30 years of police work.

"Errors happen, but very rarely," he said.

Ashment said the bill's focus on requiring the least force necessary is dogmatic and doesn't increase safety for either the resident or the police. There are times when forcible entry is the better option, he said.

"It may sound kind of counter-intuitive but a forced entry without a knock and announce can actually increase the safety because there's an element of surprise there," Ashment said.

He said Ogden police officers account for several signs of potential confrontation before entering a home. These include the suspect's criminal history, their tendency for violence, availability of weapons, tips from informants, history of the residence and details gathered from surveillance.

Ashment said Ogden's SWAT team called off a no-knock warrant in 2013 after noticing from their surveillance that young children were walking in and out of the residence.

"As the situation evolved they made an adjustment to their plan and they ended up ... doing it in a less invasive way," he said. "In that particular case it turned out well it was the right decision to make. We're always trying to act on the most current, most recent information and adapt our methods to do it as safely as possible."

HB 70 also includes an exclusionary clause that would disallow evidence obtained in violation of the least-force-necessary requirement of officers. The clause is an overstep, according to Ashment.

"Even if you disagree with the police method ... do we want to say we're absolutely not going to use any evidence that comes out of this?" he asked. "Are you willing to toss that evidence because you disagree (and think) the police made too much noise?"

Judges have done a good job determining forcible entry warrant applications on a case by case basis, according to Ross. He said a sweeping law is too far removed from the day-to-day application process to be effective.

"I guess that's the difficult part of (solving problems) through the Legislature  you want to make sure everything that's ever gone wrong won't ever happen again," Ross said. "I hope there's recognition that there's already a lot of oversight from the judicial branch, and we feel it's sufficient."

Copyright 2014 the Standard-Examiner 


McClatchy-Tribune News Service

 






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