Proposal would limit forced-entry serving of search warrants

Oct 13 2013 - 5:44pm

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The Libertarians preparing a proposal to limit the forced-entry serving of search warrants by police now believe there is support for such a law in the Utah Legislature.

Although final language is yet to be drafted for what he says will be a pre-filed bill this fall, Connor Boyack, founder of the Provo-based Libertas Institute, says it may be the first of its kind in the country.

The still loosely defined proposal would likely limit the battering-ram entries from use for minor offenses, Boyack and the Utah Chapter of the ACLU said in announcing their plans in July. Boyack now says such restrictions would likely exceed those of any other state, if the Legislature approves it.

In discussions with a little more than a dozen lawmakers so far, Boyack said, "We haven't talked to a single legislator who objects to the proposal. They have recognized that this is at least worth looking at."

The effort is in reaction to recent high-profile cases involving police and aggressive entries, sometimes called home-invasion raids by their critics.

Police and prosecutors have said the forced entries, also known as breaches, are a vital law enforcement tool. The law allows the breaches as either a "no-knock" entry, with no announcement in the interest of officer safety and preventing the destruction of evidence, or a "knock and announce" warrant. In the latter, police announce their intentions for 30 seconds or more, to give a resident a chance to answer the door before it is battered in. Police and prosecutors say waiting for permission to serve a search warrant disrupts an investigation.

Rep. Lee Perry, R-Perry, said he has talked with Libertas about the propsal. "I told them I'd be willing to make recommendations once they have the text of the bill. ... If they have some good ideas about protecting law enforcement officers, I'm open to listening."

Perry, also the Utah Highway Patrol lieutenant over Cache, Rich and Box Elder counties, said the discussion of the proposal should include specific reviews of the warrants critics are concerned about.

Perry said he would not be a sponsor of the bill. Boyack said a sponsor will likely be chosen before Thanksgiving.

Of the 250 or more search warrants court records show are served in a year in Weber County, the vast majority are served without having to resort to a battering ram, or even "no-knock" status granted by a judge, officials say. "Most people answer the door," as Weber County Attorney Dee Smith has said.

But some of the breaches have drawn controversy in recent years, with Boyack and the ACLU pointing to the fatal Jan. 4, 2012, shootout at Matthew David Stewart's home in Ogden as one of the motivators for the coming bill.

The gunfire during the serving of a "knock and announce" warrant for pot plants left Stewart and six officers wounded, one fatally. The slain officer, Jared Francom, was revered by his fellow officers and the Ogden Public Safety Building has since been renamed for him. In May, Stewart apparently hanged himself in his jail cell while awaiting trial.

"We legitimately believe our proposal will be as protective of police as (of) perpetrators," Boyack said. "It would have kept Jared Francom alive."

The aim is to add a constraint as to when officers use the breach approach, he said. "It would restrict their discretion, and we want to be sensitive to that. Officers should be able to respond with force when necessary.

"We're not looking to tie the officers' hands. We want to be sure force is employed only when necessary."

Law enforcement has criticized the proposal as unneeded meddling in officers' calls in the field.

"Reacting to the Stewart case with legislation won't prevent persons bent on killing police officers from trying to kill police officers," was the reaction of Deputy Weber County Attorney Chris Shaw, one of Stewart's prosecutors.

Other aggressive entries that have drawn some controversy:

In September 2010, Todd Blair was fatally shot while brandishing a golf club when officers served a "no-knock" search warrant at his Roy home.

In October 2012, a 76-year-old woman was victimized by a wrong-house raid by drug agents. Salt Lake City Police Chief Chris Burbank apologized for the no-knock mix-up within days.

In November 2012, a 20-year-old Provo man fired at police breaching his home with a drug search warrant. No one was injured, and Alex Opmanis said he thought he was being attacked by a gang that had threatened him. He was subsequently found incompetent to stand trial because of developmental deficits.

In December 2012, Eric and Melanie Hill, of Ogden, and their two young daughters were startled by officers with M4 rifles massing at the door of their Ogden home, with the wrong address, looking for a military deserter.

Officers rushed the home and handcuffed Hill when he answered the 2 a.m. knock at his door while holding a baseball bat. Ogden Police Chief Mike Ashment apologized for the mistake.

Contact reporter Tim Gurrister at 801-625-4238 or tgurrister@standard.net. Follow him on Twitter at @tgurrister

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