Supreme Court Paved the Way for Mena Killing

By David B. Kopel

Feb. 15, 2000

Forced to resign by Denver Mayor Wellington Webb, former Denver Police Chief Tom Sanchez is the latest casualty of the no-knock drug raid that killed Ismael Mena last September. Denver Police Officer Joseph Bini is being accused of perjury for procuring the warrant claiming that crack was being sold from Mena's home. Many Denverites are starting to realize that the terrible increase in unjustified police violence that has taken place under the Webb administration may be the responsibility of Wellington Webb. But so far, the prime culprits has escaped public notice: the Colorado Supreme Court. If the Colorado Supreme Court had not weakened our state Constitution in order to bolster the "war on drugs," Ismael Mena would be alive today.

In order to get a warrant to assault Mena's home to search for crack, the Denver Police Department gave the Denver District Court only two pieces of evidence: First, an "informant" claimed to have bought crack one time at Mena's home. ("Informant" is a euphemism for a crackhead getting government money for his habit, in exchange for making accusations against people.) 

The second piece of evidence was that Officer Bini had seen people "loitering" and "drinking" on Mena's front lawn. Bini said that this was indicative of drug activity. Think about that next time you open a beer at a Memorial Day barbecue. Before the war on drugs, an assertion from a crackhead, coupled with evidence of a party on the front lawn, would never have sufficed for a search warrant.

Until the mid-1980s, the U.S. and Colorado Supreme Courts required that warrants based on informant accusations must pass a "two-pronged" test, as set forth in the case of Aguilar v. Texas. The first prong was the informant's basis of knowledge. In the Mena case, this prong was strong, since the informant said he had bought the crack personally, inside the house.

The second prong was the informant's veracity. Was there reason to believe that the informant, even if he had a good basis of knowledge, was telling the truth? The veracity prong was frequently examined for two factors: credibility, and reliability. 

Regarding credibility, was the informant someone with a strong personal motive to lie--such as a criminal who was working as an informant in order to receive more lenient treatment for his own crimes? (Probably the situation with the informant in the Mena case.)

The reliability inquiry also asked whether the informant, even without a motive to lie, was a good observer of events. One way to test reliability would be for the police to corroborate some of what the informant had said.

Verification of suspicious activity would be more important than verification of innocent activity. For example, if an informant said that someone ran a crack house at a particular address, the police could corroborate the tip by observing many persons coming and going from the house at unusual hours, but only spending a few minutes, and coming out with a glassy look in their eyes; this corroboration would be much stronger than merely corroborating that the suspect happened to live at the house in question--or that the home-owner let friends drink beer on his lawn.

The two-pronged test provided structured guidance to lower court judges who were asked to issue warrants based on informant tips. The two-pronged test likewise guided law enforcement officers. They knew that they should investigate the informant's basis of knowledge and veracity, and that corroborating incriminating information from the tip would be especially important.

The net effect was that informant tips would rarely be the only basis for a search warrant. Instead, informant data would be the starting point for a more thorough investigation to build probable cause. The two-pronged tested promoted good police work.

But like many other civil liberties protections, the Aguilar two-pronged test fell victim to the drug war. In 1983, the Supreme Court ruled on a case involving a search warrant which three lower courts had ruled clearly failed the two-pronged test. Someone had written an anonymous poison-pen letter accusing a married couple of being drug dealers. The letter indicated no basis of knowledge. The writer did not even know the couple's address.

The police did attempt to corroborate some information from the tip, but the only information was that the husband flew down to Florida where he met his wife, and two were observed driving north, in the direction of Disneyworld. Issuing a search warrant for the couple's home was plainly wrong under the Aguilar two-pronged test, as three lower courts all found. The United States Supreme Court did not disagree. Instead, the Court majority scrapped the Aguilar test (without actually overruling Aguilar), and replaced it with a "totality of the circumstances" test.

In the 1987, the Colorado Supreme Court did to the Colorado Constitution what the U.S. Supreme Court had done to the U.S. Constitution. In People v. Pannebaker, the Colorado Supreme Court got rid of the two-pronged test, and imposed a "totality of the circumstances" standard. As in the U.S. Supreme Court case, the underlying crime was marijuana, and in order to convict a marijuana seller, the Constitutional rights of everyone were reduced.

If all magistrates were as sophisticated as Supreme Court Justices, replacing the two-part test with the totality test would not make a major difference. But in real-world law enforcement,  many magistrates--such as Judge Satter in Denver, who issued the Mena warrant--are lost without the guidance of an itemized test.

Drug war enforcement is a dirty business, based mainly on the allegations that drug abusers make about other people. 

In order to protect innocent people from unjustified midnight SWAT attacks, the Colorado Supreme Court should overturn its mistaken decision in the Pannebaker case. For the same reason, the Colorado legislature should enact specific rules about the use of informant tips. And regardless of what the Supreme Court and the
Legislature do, every police and sheriff's department in Colorado should voluntarily adopt the Aguilar standards, so that fewer innocent people are killed in the drug war.

Dave Kopel is Research Director of the Independence  Institute, a free-market think tank in Golden, Colorado,

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