Exclusive: Under oath, Little Rock narcotics officers say they destroyed evidence, routinely violated the Fourth Amendment
Exclusive: Under oath, Little Rock narcotics officers say they destroyed evidence, routinely violated the Fourth Amendment
In depositions for a lawsuit over a no-knock raid, two detectives admit to systemic abuses, although perhaps without realizing it
Back in 2018, I published an investigation for the Washington Post about the dangerous, illegal manner in which the Little Rock Police Department was conducting drug raids.
I began looking into the story after being sent surveillance video showing that narcotics detectives and a police informant had lied to obtain a search warrant, then conducted an especially reckless and dangerous no-knock raid on a man named Roderick Talley in 2018. The drug charges against Talley were later dropped.
Talley obtained more than 100 search warrants involving the officers involved in his case and sent them to me. As I started looking into those warrants, it became clear that the LRPD was routinely conducting sloppy, reckless, and illegal drug raids.
My investigation eventually became an issue during the Little Rock mayoral campaign. After his election, Mayor Frank Scott promised to put new restrictions on no-knock raids. Scott’s appointed police chief, Keith Humphrey, then cut the number of no-knocks in the city to less than five per year.
Still, most of the police officers who conducted these drug investigations still work at the LRPD, and they don't appear to have received any discipline at all. Some have since been promoted.
But some of the victims of the botched raids from the late 2010s have filed lawsuits, Those lawsuits are now moving into discovery. And that process is producing some damning evidence.
I'll be writing more on these cases in the coming weeks. But for this post, I'm going to look specifically at the testimony two Little Rock narcotics detectives gave in depositions in last month. It’s jaw-dropping stuff.
Recap
Before I dive in, here's a recap of what we know so far:
Of the 105 drug search warrants I reviewed over an 18-month stretch between 2016 and 2018, at least 101 were no-knock warrants. (With the other four, it wasn’t clear how the police executed the warrants).
For 93 of the 101 no-knock warrants, police did not provide specific evidence that the suspect posed a threat to the safety of police or a threat to the preservation of evidence should the police knock and announce themselves. Instead, the LRPD drug cops used word-for-word boilerplate language about how all drug suspects are a threat to police or to dispose of evidence.
The Supreme Court has explicitly ruled that this is illegal. In 1996 the court ruled that under the Fourth Amendment, the police must knock and announce themselves and give you an opportunity to come to the door before breaking into your home. But the court did allow for a few exceptions, most notably if police can show that a suspect is potentially violent, or is a threat to destroy evidence after the announcement. Narcotics officers responded to that ruling by simply stating in affidavits that all drug suspects meet those two criteria. So in the 1997 case Richards v. Wisconsin, the U.S. Supreme Court specifically rejected this one-size-fits-all approach to no-knock warrants, unanimously ruling that the Fourth Amendment requires police to present specific evidence demonstrating why each particular suspect may become violent or destroy evidence.
This means 93 of the 105 warrants I reviewed for Little Rock were illegal, as were the subsequent raids those warrants authorized.
Despite the fact that these 93 no-knock warrants were clearly illegal, two Little Rock judges signed off on all of them. When I questioned the judges about this, they didn't appear to understand or agree that the warrants were illegal. As I reported last month, one of those judges is now general counsel for the Arkansas State Police.
In a 2014, an interoffice LRPD memo referred to a department mandate that all search warrants be served with a SWAT team.
As with the Roderick Talley case, in many of these raids police forced entry into private homes by using explosives to blow doors off their hinges and then several feet across the room. In some instances there were children, elderly people, and disabled people inside. Former SWAT officers from other parts of the country told me they've never seen explosives used in that way before, and that the raids were especially reckless and dangerous.
About 30 percent of the no-knock warrants I reviewed were for marijuana.
About 80 percent of the no-knocks I reviewed were served against black people. Little Rock is 42 percent black.
Roderick Talley's Ring video makes it indisputably clear that an informant named Kenneth Robinson lied about purchasing cocaine from Talley. The Ring video shows that Talley wasn't home at the time of the alleged drug purchase. The raid on Talley’s apartment turned up no cocaine, just a small amount of pot.
It’s also clear that the detective in that case, Mark Ison, lied in the sworn affidavit he submitted to obtain the no-knock warrant. Ison claimed in his affidavit that (a) he thoroughly searched the informant to make sure he had no illegal drugs on his person before the controlled buy, (b) the informant never left Ison's sight, (c) Ison witnessed the informant conversing with someone in Talley's apartment, and (d) the informant then returned with cocaine, which he claimed to have purchased from Talley. Again, Talley's Ring video showed that no one was home at the time Ison claimed all of this happened. There was no conversation and there was no drug buy. Instead, the video shows the informant approach Talley's apartment, knock, wait a bit, and walk away.
Other suspects I spoke to told me that Robinson also visited them. Those who were home at the time told me Robinson came inside, made some small talk, and left. Some knew Robinson, others didn't. Two say he told them he was in the market for a new apartment and inquired how much they paid in rent. Days or weeks later, these people were raided by an LRPD SWAT team. As with Talley, in the sworn affidavits to obtain the search warrants for those raids, a Little Rock detective claimed his informant bought drugs from these people.
A few months after my story was published, prosecutors dropped the charges in several other cases for which Robinson had been a police informant.
There has never been an investigation into Ison and the other narcotics officers, nor has there been any review or investigation of the extraordinarily violent methods used to serve these warrants.
Okay. All of that out of the way, let’s move on to those depositions.
The raid
Last month’s depositions were part of discovery for a lawsuit filed by Tracy Givan and Bruce Williams. Here's what happened in their case:
According to his sworn affidavit, Detective Mark Rainey was told by a confidential informant on July 26, 2016 that Tracy Givan was selling "small amounts" of marijuana from her home. Rainey wrote that he met with the informant the next day, searched him, gave him $100, and sent him to Givan's home. According to Rainey, the informant then returned with $100 worth of marijuana, which he said he bought from Givan.
Givan and her husband Bruce Williams lived in south-central Little Rock with their two children, ages 11 and 15 at the time. The couple has conceded in depositions that they both use marijuana therapeutically — Givan to treat the pain associated with sickle cell anemia, and Williams for post-traumatic stress disorder he suffered after a friend was murdered in front of him. They both now have medicinal marijuana cards, though they concede that at the time, all marijuana use was illegal in Arkansas. They also admit to using marijuana recreationally.
But both Givan and Williams also insist they've never sold the drug, and they say the purchase alleged by Rainey and his informant never happened.
On August 10, 2016, about two weeks after the alleged drug sale, an LRPD SWAT team broke down the door to the family's home, deployed flash grenades, and stormed the house. They tore a door off its hinges, shattered several windows, and left burn marks on the family’s rugs.
Williams, Givan, and their two children were then handcuffed while the SWAT officers searched the house. According to Givan and Williams, the officers screamed profanities, pointed their guns at both the adults and the children, and handcuffed Givan, Williams, and the 11-year-old, though they later took the cuffs off of the child.
Again, this violent, volatile raid was over a $100 sale of marijuana, and after an informant’s tip that, at worst, Givan was selling “small amounts” of the drug. The police had no evidence that either Williams or Givan posed a threat to police.
Oddly, both Givan and Williams also say that as the SWAT officers stormed the house, they repeatedly yelled out to ask if anyone in the house had a warrant, which suggests the police may have been more interested in a warrant sweep than a drug raid. But neither Givan nor Williams had any outstanding warrants.
The police did find the couple's supply of marijuana. They also found a revolver, which Williams said he had purchased for protection, but had never fired. The gun would otherwise have been legal in Arkansas, but because the police also found pot, Bruce Williams was charged with possession with intent to distribute and possession of a gun while committing a drug crime. He was jailed for seven days and eventually pleaded guilty on the possession with the intent to distribute charge. Williams says he had no plans to sell the drug, but possession of more than a certain amount allows the state to bring that charge even without any other evidence of intent to sell. Williams also testified that his attorney told him that pleading guilty was only way to avoid prison. He was given a suspended sentence. The gun charge was dropped. The couple was later evicted from their home and asked to pay off the rest of their lease.
Givan and Williams say the police never produced a search warrant that day. Williams would later testify in his own deposition that he only found the warrant at the house after he returned from jail. Williams also testified that he has security cameras in front of his house. When he returned from jail, he noticed that the camera wires had been cut.
Givan and Williams brought a civil rights lawsuit, and last month Mike Laux -- the attorney for Givan and Williams -- deposed Mark Rainey and Russ Littleton, the two detectives involved in the investigation.
Here’s what we learned . . .
On searching informants before and after a controlled drug buy
Before a controlled drug buy, narcotics officers are supposed to thoroughly search the informant. This is so the informant can't hide drugs they might later falsely claim to have purchased from the suspect. As Neill Franklin, a former narcotics officer in Baltimore and with the Maryland State Police, told me for my 2018 report, "When you send an informant to make a drug buy, you search him thoroughly. And I mean thoroughly. You strip-search them. You search every nook and cranny."
But both Littleton and Rainey said in their depositions that they didn’t strip search their informants. They also didn’t search the informants' mouths, shoes, or socks. They basically just conducted a thorough pat-down. Rainey also said that if his informant was driving to the transaction, Rainey would do about a 5-minute search of the car, but rarely anything more thorough than that.
This may seem trivial, but it’s important. In the Roderick Talley case, the investigating detective swore to a drug buy that never happened. And when a police officer swears in an affidavit to a controlled drug buy that video or other evidence shows never happened, there are really only two explanations: incompetence or criminality.
“One detective testified that he photographs the drugs his informant claims to have bought, which provide the probable cause for a no-knock warrant. But he doesn't put this important evidence in the case file. Instead, he puts it in something he calls his ‘field notes,’ which he stores in his desk, doesn't show to anyone else, and later destroys.”
In Talley’s case, Detective Ison claimed in his search warrant affidavit that the informant never left his sight, save for the brief time the informant was allegedly in Talley's apartment. If Ison had done a thorough strip search, there's just no explanation for how the informant could possibly have come back with cocaine after visiting Talley's apartment. The only possible explanation is that Ison and the informant were fabricating evidence. (And again, Ison also swore to seeing Talley’s door open, seeing his informant conversing with someone, and then seeing the informant enter Talley's apartment, all of which the Ring video clearly shows never happened.)
However, if you admit that it’s standard practice to do a half-ass job when searching your informants, you have plausible deniability if it's later proven that one of those informants described a drug buy that never happened. As Franklin told me back in 2018, “Maybe the informant was playing these detectives. But if he was, they were more than willing to be played.”
Little Rock's drug cops appear to have calculated that (a) they’re going to take reckless, sometimes illegal shortcuts to get these no-knock warrants, and (b) given (a), it's less damning to admit to incompetence than to risk being accused of criminally conspiring to violate the constitutional rights of drug suspects.
And they’re probably right.
On preserving the evidence of a controlled drug buy
Here’s a nagging question I've wanted someone to ask Ison since I first saw the video in Talley’s case: What happened to the cocaine?
Ison claimed he sent an informant to Talley’s house. He claimed he searched the informant prior to the controlled buy, that the informant never left his sight, and that he saw the informant enter Talley’s apartment. He then claimed the informant returned with cocaine, which the informant said he bought from Talley. But we know he couldn’t have bought that cocaine from Talley. And we know they didn’t find any cocaine in Talley’s apartment.
So what happened to the cocaine Ison swore under oath that his informant brought back from Talley’s apartment? Where did it come from? Where is it now? According to Ison’s affidavit, he at one point was in possession of that cocaine. So where is it?
The most likely answer to these questions, of course, is that the cocaine never existed. Ison lied about it. But if you’re the LRPD and you claim to believe Ison, you’d think you’d at least look to see if the cocaine is in evidence and, if it isn’t, ask Ison where it is.
Yet Little Rock’s courts, police department, and prosecutors seem utterly uninterested in the answers to these questions. Again, according to my sources, despite clear evidence that he lied under oath, Ison was never investigated*, nor was there any broader investigation into the narcotics unit.
(*If Ison was investigated, he was never disciplined. In Arkansas, Internal Affairs investigations are only public record if they result in discipline.)
At the depositions last month, attorney Mike Laux probed this issue. He asked the two detectives what happens to the illegal drugs that narcotics officers claim their informants purchase in these cases.
The answer seems to be that no one knows. Here’s the first relevant exchange with Detective Mark Rainey:
Q: What I'm asking is do you create a specific document that's called a chain of custody document, which serves as a memorialization as to where the [evidence] is and in whose possession it is at all times?
A: No.
Q: Okay. You do not create one of those?
A: No.
Q: And so one of those does not go in the case file, correct?
A: No.
[...]
Q: The document that I just described that I referred to as a chain of custody, you don't do for your case files?
A. No.
Rainey did say he sent the drugs to the crime lab for testing, but we don’t have access to those records. And without a chain of evidence document, it’s impossible to track which drugs were sent when.
Rainey went on to say that he did create chain of evidence documents for the contraband seized after a raid. But not for the drugs they claim their informant bought that enabled them to get a search warrant in the first place. Rainey also said he didn’t record audio or video of drug buys, nor of his conversations with informants.
The only effort he made to document the alleged illegal drugs his informants purchased was to photograph the drugs with his phone.
That’s at least something. But then it gets weird.
Q. Do you always take a photograph of [the drugs]?
A. Yes.
Q. What's the purpose of taking a photograph of the controlled buy drugs?
A. Just evidence for my case.
Q. That's pretty good evidence, right?
A. Yes.
Q. And it's important that that photograph would be in the files of these no-knock warrant cases, right?
A. Yes.
Q. And you would expect that when you do your file, you put the photograph in there?
A. No.
Q. I'm confused?
A. I haven't put them in there.
Q. I just said that it's important to the file?
A. Yes, it is important, but I haven't put them in there.
Q. Why don't you put them in there?
A. I just haven't. It's in my field notes.
Q. If the photograph is important because it's evidence of the buy, why would you not put it in the file?
A. I just don't.
Q. But why?
A. I just never have. I wasn't trained that way.
[...]
Q. So what do you do with the photograph, just take it home?
A. They're in the field notes.
Q. You memorialize it in a file for the no-knock warrant?
A. There's two different files. You have the case file and then the file that I use when I'm doing buys. It goes in the file that I'm doing when I'm doing the buys.
Q. Okay. What file is that?
A. It's my investigative file.
Q. Does it have a case number?
A. No.
Q. You just take it, you just keep it?
A. Yes.
Q. Well, why would you not share that information with prosecutors?
A. I don't feel it's important.
[...]
Q. You said that the photograph was good evidence, right?
A. Yes.
Q. And it sounds like you opt to not put that good evidence in the case file, true?
A. Yes.
Q. And that's because that's how you were trained?
A. Yes.
[...]
Q. Okay. So what happens to your personal -- what do I call the files that you're referring to; you said it's your work file -- that's just a personal file of yours?
A. Yes.
Q. So wouldn't you want to share that evidence with other colleagues?
A. No.
Q. Okay. And so what happens to those personal files of yours?
A. They're usually purged after a number of years.
Q. By whom?
A. Me.
Q. Okay. You purge them?
A. Yes. They're just field notes is all they are.
Q. Well, they're field notes and photographs?
A. Yes. After they've been adjudicated they get purged.
Q. You keep saying "they" like there's a third-party here. You're talking about yourself, right, after they're adjudicated --
A. I meant "they" as being the cases, the different cases. That's what I was referring to is "they" as different cases.
Q. You purge your cases?
A. My notes I do, yes.
Q. And the photographs that you take?
A. Yes.
Q. You purge those?
A. Yes.
Q. No one tells you to, you do it anyway?
A. Yes.
Q. You take the photograph, you put it in the file, you don't share it with anybody, and then you throw it away?
A. It's shredded.
So to summarize, Rainey testified that he did photograph the illegal drugs his informant claimed to have bought from a suspect — the drugs he used as probable cause to obtain a no-knock search warrant. And he acknowledged that this is important evidence. But he didn’t put this important evidence in the case file. Instead, he put it in something he calls his “field notes,” which he stored in his desk, didn’t show to anyone else, and later destroyed.
I asked Franklin what he makes of this. “Completely inappropriate,” he said. “Coast to coast, I don’t care where you are, one thing every police academy in the country will drill into you that you never, ever destroy evidence. When I was in narcotics, the controlled buy itself would lead to a distribution charge. It’s a crime. So we documented everything. Those photos, the officer’s notes, those are all evidence. This officer is destroying evidence. And I’m pretty sure that most of the country, destroying evidence of a crime is itself a crime.”
Rainey's claim that he only shredded his field notes after the case was adjudicated also doesn’t pass muster. “That isn’t how it works,” one former LRPD official told me, who asked to remain anonymous. “You can only destroy evidence with a court order. You can’t just unilaterally decide as a police officer that the case is over, so you can now destroy it on your own. You never know what might happen. As we see here, you could have civil litigation after the criminal case is over.”
Elsewhere in the deposition, Rainey said he did the same thing with the photos of the suspects he showed to informants to confirm the suspect’s identity. Those, too, went into his “field notes,” which he later shredded.
I’ve reviewed a lot of narcotics cases from Little Rock over the last few years. None included photos, chain of evidence sheets, or any other documentation of the alleged drugs that provided the probable cause for a no-knock raid. I’m told this was common for other drug cases at the time. So it seems likely this habit of shredding or destroying evidence related to the drug buy wasn’t limited to Rainey.
Why would they destroy that evidence? The big, honking, obvious reason is that you’ve fabricated or cut corners with the controlled buy.And you know that if anyone were to start scrutinizing your methods, they may figure out what you’ve been doing.
As the plaintiffs in these lawsuits are now learning, if you were wrongly or illegally raided by the LRPD, the fact that detectives like Rainey destroyed everything related to the controlled buy makes it extremely difficult to determine if the police obtained the warrant legally. The police already have a huge advantage in that the identity of the informants themselves remains redacted, even during litigation. Judges occasionally make exceptions, but it’s rare. (We only know Robinson’s name because he was caught on video and exposed by Roderick Talley on social media.) So police can attribute just about anything to an informant in an affidavit, and it’s next to impossible for the person implicated to ever cross examine the informant.
If a cop destroys everything related to the controlled buy, all that’s left is the word of the investigating officers. If a drug suspect later claims the buy never happened, well, who’s going to believe them?
One more thing here: Both detectives also mentioned in their depositions that they recorded the serial numbers of the bills they gave to informants for controlled buys, usually by photographing or photocopying the bills. Sometimes, these serial numbers were included in the search warrant affidavits. In a thorough, professional investigation, this makes sense. A competent investigator would then attempt to match the serial numbers of the bills they gave to the informant to any cash they might find in the home after the raid.
“If you can find the serial numbers that your informant used for the controlled buy, that’s strong evidence,” Franklin says, “That’s your slam dunk evidence that someone in that house was selling drugs.”
But while Rainey testified that he photographed the serial numbers in the Williams/Givan case and included those serial numbers in his affidavit, there’s no evidence that anyone tried to match the numbers to any cash found after the raid. They didn’t even bother to photograph or document any cash they found in the house. Perhaps they didn’t find any cash. But that would cut against the notion that the couple was running a major drug operation. If they did find any cash, it wasn’t in the case file, and it wasn’t listed on the return sheet of found evidence.
The photos Rainey claimed to have taken of the bills before giving them to the informant also apparently went into his shredded “field notes” because those, too, aren’t in the case file.
After reading these depositions I went back and looked at those 105 warrants I obtained in 2018. About half of them include “U.S. currency” on the return sheet that lists the evidence found after the raid. But none of them list the serial numbers of the bills that were found.
Two former high-ranking officials at the department told me that suspects are rarely charged for the controlled buy itself. And attorneys who work on these cases in the city say they rarely see any attempt to match serial numbers of cash found in a raid to the cash police gave to an informant in other cases, either.
So the inclusion of serial numbers in warrant affidavits appears to be purely performative -- to give judges the impression that the officers are cautious and thorough. But there’s really no reason to include them in the warrant if they serve no purpose later.
Here again, the most damning reason Little Rock drug cops would rarely attempt to match serial numbers or charge for the controlled buy itself is that they know the buy itself was fabricated, or that they cut corners while conducting it.
But there’s also another possible reason: These raids were sometimes conducted several days, a week, or even a month after police originally claim to have conducted the buy. Rainey and Littleton said in their depositions that this is because the LRPD was conducting so many drug raids that the SWAT team was often backlogged. A few days to a month is more than enough time for a suspect to spend or launder the bills. So perhaps they just concluded that they weren’t likely to find the bills, anyway.
But that delay itself is a problem. When you wait that long between the drug buy and the raid, your suspect could move to another location, and take his drug supply with him. Innocent people might move in, or visit. You don’t know who might be in the house at the time of the raid (and indeed, Little Rock SWAT officers often didn’t).
Moreover, any drugs your informant claimed to have seen in the house are likely to be sold and out on the street within a couple days. And keeping drugs off the street is supposed to be the entire point of all of this.
“We’d typically serve a warrant within a day of getting it,” Franklin says. “And even then, someone watched the house the entire time. You knew who was in the house at all times. You knew everything about them. The person watching also made a note of who entered, who left, and what they were carrying.”
That certainly wasn’t the case in Little Rock. Rainey and Littleton said in their depositions that they and the SWAT team often didn’t know if there were children, disabled, or elderly people in the homes they raided. They didn’t know if suspects were armed. The narcotics cops and SWAT officers have a form listing these factors that they’re supposed to fill out before a raid. Those checklists were often left blank.
At other departments, those factors influence the tactics and strategy police use to serve warrants. But when you serve every warrant with SWAT and a no-knock, you’re treating everyone the same, as if they’re the worst sort of threat. So there’s little reason to collect that information.
On no-knock raids
That brings us to what may be the most damning part of the depositions for the city of Little Rock. Rainey and Littleton both affirmed that when they were narcotics officers, all drug warrants in Little Rock were served with a SWAT team and a no-knock raid. My 2018 review of those 105 warrants already suggested as much. But these deposition wold now seem to make this indisputable.
Again, the Supreme Court has ruled that this sort of blanket policy is a clear violation of the Fourth Amendment. And that was in 1997.
Here's what Littleton said:
Q: Do you agree that typically the standard for a search warrant execution is knock and announce?
A. The standard?
Q. Yeah.
A. I wouldn't agree with you on that. [....]
Q: My understanding of the law covering the Fourth Amendment . . . is that the general rule for serving a search warrant on a home is knock and announce, but sometimes there are circumstances that justify an exception to that general rule. So what I've said so far you disagree with?
A: I don't -- the warrants we did in narcotics were no-knocks.
Q: I understand.
A: So I'm not -- I don't know the percentages or what you're trying to get at when you're saying that this is an exception. This is what you did for everybody's safety. [...]
Q: It sounds like you say that the main, major, general rule is no-knock, and sometimes, depending on the circumstances, you can deviate from that norm and go with a knock and announce?
A. Not when drugs are concerned, no. Not when drugs are concerned.
Q. So there's no exception for the no-knock rule with drug search warrants?
A. Not when I was there doing that. There were no-knock warrants. [...]
Q. Was there ever an instance where you served a search warrant in the knock and announce form?
A. I'm not sure. I can't think of one I have done. I'm trying to think. I can't be sure. I mean, there might have been a few, but it was -- it's here recently. It would be more recent than back in this time, during this -- anything back in, when I was on street narcs, no, we didn't.
So not only were no-knocks the default method of serving drug warrants, Littleton couldn’t think of a single time when he’d served a drug warrant with anything other than a no-knock raid while he was working for the LRPD.
Interestingly, Littleton also serves on an ATF narcotics task force*. He testified that when he’s working on the federal task force, drug warrants are generally served by knocking-and-announcing, with exceptions for exigent circumstances — that is, in a manner consistent with federal law. But that isn’t how the LRPD was doing it.
(*Why, you may be asking, does the Bureau of Alcohol, Tobacco, Firearms and Explosives work narcotics cases? Good question!)
On the Fourth Amendment
Laux also asked the detectives if they believed the blanket no-knock policy is consistent with the Fourth Amendment. Their answers were . . . interesting.
Here’s Rainey:
Q: But as long as you've been there, SWAT does all the search warrants?
A: Yes.
Q: Now, do you think that's consistent with the 4th Amendment to the U.S. Constitution?
A: Yes.
Q: Okay. Now, are you familiar at all with some of the law that surrounds the 4th Amendment in terms of searches and seizures and whatnot?
A: Yes.
Q: And you think that across the board order for usage of SWAT team with search warrant execution, you think that's consistent with the 4th Amendment?
A: It depends on the circumstances.
Q: Well, but this mandate doesn't depend on any circumstances. It doesn't say here that you guys should do the SWAT team in some search warrants. It says all.
A: I didn't write this.
Q: I know you didn't. But I'm saying the usage of the word, the phrase all search warrants kind of eliminates the notion of circumstances, doesn't it?
A: Yes.
Q: So when you say, "it depends on the circumstances," well, this order doesn't refer to any circumstances, does it?
A:. No.
Q: So my question to you is do you believe that that is consistent with the 4th Amendment? Not in some circumstance, but as written here?
A: Yes.
Q: So the facts of a particular household is not something that needs to be considered when you're going to do a search warrant execution of that household?
A: Yes, it is.
Q: Well, then in what instances would SWAT teams be inappropriate to serve a search warrant?
A: If guns and drugs wasn't involved.
Q: If they were not involved?
A: Not involved. And small kids. The list could go on as far as --
Q: So if there's small kids in the house, SWAT team should not be used?
A: It depends on the circumstances.
Q: Yeah. You're giving me circumstances right now. And I'm trying to get you to -- so here's my question . . .
A: If there's not an immediate threat of death or physical injury, no.
Q: Let me take a step back. This mandate doesn't provide for exceptions for households with children, does it?
A: No.
Q: It doesn't provide for exceptions for households with handicapped people, does it?
A: No.
Q: Okay. So my question to you is, you think that this is consistent with the 4th Amendment. So what I'm asking you is, are there any instances where SWAT teams with assault rifles with their various modes and methods, are there any circumstances that would make SWAT usage inappropriate?
A:. No.
Q: Okay. Now, the reason given for SWAT being used is because many times guns and violence are associated with narcotics, right?
A: Yes.
Q: “Many times” is what it says here, right?
A: Yes.
Q: Okay. What about the times when guns and violence are not associated with narcotics, is SWAT usage okay then?
A: Say again?
Q: What if guns and violence are not associated with narcotics, is SWAT usage then okay?
A: I don't know what you're saying.
Q: Well, SWAT is used because many times guns and violence are associated with narcotics. I think what that means is that many times drug dealers have guns and they are violent. Do you take it to mean that?
A: Yes.
Q: Okay. Well, what about instances where the drug dealer does not have guns and is not violent; is it okay to use SWAT then?
A: In my experience as an officer and a detective, most of the times guns are found with the drugs.
Q: That's not my question though.
A: Okay.
Q: My question is you're going to do some pre-SWAT, pre-warrant execution info. And you learn that this guy sells marijuana out of his house. But he's got a spotless record. He's a former Boy Scout. He's got no crimes of violence. He's not a registered gun owner. He sells marijuana out of his house. Is it appropriate to use SWAT if you have probable cause to serve a search warrant on his house?
A: Yes.
Q: Why?
A: When you have drugs, anybody can have a gun. When you have drugs, it's my experience as a trained officer, I've seen it more often than not that they do have guns.
Q: What's the point of doing pre-warrant execution intelligence on whether these guys have guns in their house if you're going to use the SWAT anyway?
A: That's just the way we do it.
A couple observations: First, Rainey is really gift-wrapping this for Williams/Givan and other plaintiffs. Again, in Richards v. Wisconsin, the Supreme Court unanimously ruled that a blanket exception to the knock-and-announce rule for all drug cases on the grounds that most drug dealers are violent would make the rule all but obsolete. So they determined that such blanket exceptions are unconstitutional. Here, Rainey not only admits that this is exactly what the LRPD was doing, he admits they were doing it for the very reason the Supreme Court explicitly rejected. It’s hard to conceive of a clearer, more direct violation of a ruling.
Second, note that Rainey nearly admits that SWAT tactics are inappropriate when there are children in the house. But he catches himself, likely because he knows that there are several cases where LRPD SWAT did conduct raids on homes with children inside, including this one.
I’d also point out that while the detectives may be correct that most drug suspects are armed, it’s also a fair bet that a high percentage of any home in Arkansas will have a gun. That makes these raids more dangerous, not less.
Here's Littleton’s testimony on the Fourth Amendment:
Q: Do you think that a policy that requires SWAT assistance for all search warrants is consistent with the Fourth Amendment?
A:I don't understand what you're asking.
Q: What do you know about the Fourth Amendment?
A: Well, it gives us -- keeps us from, all of us from unreasonable search and seizures by the government.
Q: Right. And so there are protections that we have so that people can't just come into our home willy-nilly, right?
A: Right.
Q: And the standard for -- do you agree that typically the standard for a search warrant execution is knock and announce?
A: The standard?
Q: Yeah.
A:I wouldn't agree with you on that.
Q: Don't you agree that no-knock search warrants are the exception to the general rule that search warrants should be knock and announce?
A: Do I understand how you worded that for what answer you want me to give you?
Q: I just want the answer that's, you know, your answer. I'm not looking for anything other than your take on this. My understanding of the law covering the Fourth Amendment . . . is that the general rule for serving a search warrant on a home is knock and announce, but sometimes there are circumstances that justify an exception to that general rule. So what I've said so far you disagree with?
A: I don't -- the warrants we did in narcotics were no-knocks.
Again, a pretty cut-and-dried admission.
On mistakes
Laux also asked Rainey what happens when the drug cops and SWAT team make a mistake and raid the wrong home. Rainey didn’t seem capable of even contemplating the possibility.
Q: What's the process for getting compensated, if someone has property damage that's destroyed after a no-knock raid?
A: I can't answer that. That's above my level. I don't know what the administration does.
Q: If someone came into your home unexpectedly and aided your house and destroyed a bunch of stuff, and blew doors off hinges and stuff like that. And there was no drugs in the house, and you didn't know why they ere doing it. How would you feel?
A: If I was selling drugs out of my house, I guess I'd feel like it was my lucky day.
Q: So let's just stick to kind of the bare facts here. It's just a real simple question. Are you saying you --
A: You asked me a hypothetical question. I'm answering it in a hypothetical. I'm answering it's your lucky day. If I'm selling dope out of my house, you hit my house, and I ain't got any, it's my lucky day.
Q: I hear you. But what if in this scenario the person really isn't selling dope. Let's say that the CI had drugs in their sock or the CI was well intentioned and just wrong. And as a result of that, your house has been entered in shocking fashion, and you've had personal items and property destroyed. How would you feel?
A: I'd be upset.
Q: Would you feel that, at the very least, you should be compensated for the property damage that was caused on this unsuccessful raid?
A: No.
Q: Why not?
A: Obviously I did something to cause the police to be there. We're using hypotheticals.
Q: Is that really your mindset?
A: Yes. If you're buying dope out of a house, and they get hit, and no dope is there, there's a reason why we're there.
If the SWAT team breaks down your door, you must have done something wrong. End of discussion!
SCOTUS conceit
Nine years after Richards v. Wisconsin, the Supreme Court ruled in Hudson v. Michigan that even if the police do violate the knock-and-announce rule, the courts cannot apply the Exclusionary Rule against any evidence the police might find. The ruling in Hudson effectively removed the only real incentive for police to abide by the knock-announce-rule.
At the time, many of us predicted that because of that ruling, police departments would go back to serving drug warrants with no-knock raids as a matter of routine. That’s certainly the case in Little Rock. We’ve also seen it in South Carolina, in Louisville, and I’d imagine if we did a thorough audit of police departments across the country, we’d see it in many more jurisdictions.
The odd thing, as I wrote a few years ago, is that we have evidence that the Exclusionary Rule works in Little Rock. One of the few precautions LRPD SWAT officers did take was to conduct these raids during the day. This is because under Arkansas law, if police want to conduct a raid at night, they have to provide specific evidence as to why a night raid is necessary. The Arkansas Supreme Court has ruled that if the police violate the daytime requirement, the Exclusionary Rule does apply.
So we have two rules — the knock-and-announce, and the requirement that drug warrants be served during daytime hours. One is enforced with the Exclusionary Rule, the other is not. Police complied with the rule not enforced with the Exclusionary Rule in less than 8 percent of the raids I reviewed. They complied with the rule that is enforced with the Exclusionary Rule 100 percent of the time. In 80 of the 105 warrants, a Little Rock judge required that police serve the warrant during the day, and in all 80, it appears the police did just that.
In his majority opinion in Hudson, Justice Antonin Scalia argued that there are better ways to incentivize the police to respect the Fourth Amendment than the Exclusionary Rule. One way, he argued, was internal discipline, what he called the “new professionalism” in law enforcement. We can see how that worked out. None of the Little Rock officers involved in these raids have ever been disciplined. Nor were any of the South Carolina officers who routinely violated the Fourth Amendment rights of drug suspects, even after they were caught brazenly lying about a raid in which they left a man paralyzed for life.
The other form of accountability Scalia suggested is civil rights lawsuits like this one. We’ll see what happens in this case. But despite the recklessly violent tactics, the lying detective, and the fact that police did not find the drugs they were looking for, Roderick Talley’s lawsuit was dismissed last year by a federal judge. I’ll have more on that in a forthcoming post.
Vindication for Keith Humphrey
When Frank Scott appointed Keith Humphrey as LRPD chief to implement the reforms he promised during his campaign, one of Humphrey’s first changes was to rotate officers out of the highly sought-after specialized units like intelligence, major crimes, and narcotics. This shouldn’t have been all that controversial. It’s what good police departments do across the country. In my 2021 investigation of Humphrey’s tenure for The Intercept, I spoke to police management specialists who said it’s common practice. In fact, they said rotation is especially important in narcotics, because the nature of the job breeds temptation and corruption. When you have to break the same laws you’re supposed to enforce in order to enforce them, you can lose perspective about your responsibilities as a police officer.
When Humphrey took over, some cops had been in narcotics for 10, 15, even 20 years or more. But Humphrey’s plan to rotate cops out of these units sparked more internal backlash than just about any of his other reforms. He eventually backed down, and agreed to only apply the new policy going forward. Officers already in those divisions could remain indefinitely.
I asked Humphrey about the revelations in these lawsuits. “I think this only validates what I was trying to do,” he said. “When you have the same group of officers in one of these divisions for a long time, with no new blood or real oversight, fiefdoms start to form. Some officers will start to get lazy and start taking shortcuts. It’s just inevitable.”
As I mentioned, Humphrey did implement new restrictions on no-knock raids, which reduced the number of such raids in the city from 80+ per year to less than five. But that was a policy change, not a law. Any new chief could revert back to the old system. The good news for reformers is that Mayor Frank Scott, who campaigned on reducing no-knocks, was reelected in November.
The bad news is that Humphrey retired last year after a brutal two years during which he was constantly criticized, maligned, and harassed by the LRPD police union and its supporters. His interim replacement, Crystal Haskins, was a supporter of Humphrey who likely would have kept many of his reforms in place. But she left last July, after just a month in the position. The new interim chief is Wayne Bewley, a lifelong LRPD officer from a family of LRPD who has a lot of support in the police union. Mayor Scott has yet to name a new full-time chief.
The lack of any real disincentive for violating the knock-and-announce rule means cops like Ison, Rainey, and Littleton typically face no punishment for taking shortcuts, fabricating informants and drug buys, and general sloppiness. Left unaddressed, those shortcuts can become the norm. And this is how people get hurt or killed. We saw it with Breonna Taylor in Louisville. With Kathryn Johnston in Atlanta. With Julian Benton in South Carolina. And in countless other, less famous cases.
It also happened in Little Rock, in yet another case I’ll explore in a forthcoming post.
Documents cited in this post:
Affidavit, search warrant, and return sheet for Tracy Givan
Complaint filed by Bruce Williams and Tracy Givan — (Note: This complaint erroneously names Mark Ison as the investigating detective. It was actually Detective Mark Rainey.)
Det. Russ Littleton’s deposition
The surprising thing is how little of this is surprising.