Legal Experts: Nashville Police Failure to Get a Warrant After Receiving Tips About Bomber Was ‘Laziness or Sheer Incompetence’

Metro Nashville Police Chief John Drake on Wednesday afternoon claimed his department had no reasonable suspicion and no probable cause to search the home of the man who blew himself up on Christmas morning after receiving tips about alleged bomb-making activities dating as far back as Aug. 2019. But several legal experts, including defense attorneys, former prosecutors, and even a former judge tell Law&Crime that Drake is wrong on the law and wrong when it comes to police tactics given the facts which have recently emerged in the case. DNA consistent with Anthony Quinn Warner , 63, of Antioch, Tenn., was found on tissue samples recovered from the area of the blast which caused widespread damage. Warner’s RV was also confirmed to have been the one which exploded through a recovered vehicle identification number. Three people were injured, and telephone communications across several states were disrupted. Earlier Wednesday, Law&Crime extensively reported on police records which indicate that a Nashville attorney, Raymond Throckmorton , called 911 to report that Warner’s girlfriend, Pamela Perry , had “made a number of threats about her own life” and was sitting on her porch with firearms. The police met Throckmorton near Perry’s house and discovered Perry sitting right where Throckmorton said she would be with two pistols owned by Warner. Perry said Warner “was building bombs in the RV trailer at his residence,” according to the police report from Aug. 21, 2019, more than 16 months before the blast rocked Nashville on Christmas Day 2020. Per the report, Throckmorton also told the police that Warner “frequently talks about the military and bomb making” and that “he believe[d] that the suspect [Warner] knows what he is doing and is capable of making a bomb.” After securing help for Perry, the police checked Warner’s nearby house. They knocked, but Warner didn’t answer. They confirmed Warner had an RV in a fenced-in yard area, but they could not see inside it. “Police also observed that the location has several security cameras and wires attached to a alarm sign on the front door,” department paperwork says. In a Dec. 30, 2020 press conference, Police Chief Drake added that officers checked Warner’s house for several days. “The officers went by for at least—maybe longer than a week or so, and they knocked on the door, they went by, drove several times,” and checked FBI databases, the Chief Drake said. “He’s been squeaky clean” since that time, the chief said of Warner. “To my knowledge, we only had one call for service, that was the lady who made suicidal threats, and she was subsequently unavailable.” But the chief said that the officers could have done little more about Warner because they “did not have the knowledge” to do so back in Aug. 2019. “We had no legal basis for search warrants or subpoenas based on what we knew at that time,” the chief said during the December 30, 2020 press conference. “The officers did not have probable cause to get a search warrant,” the chief said. “You have to have probable cause that a crime is being committed or about to be committed.” Furthermore, “they had no reasonable suspicion to go to a judge,” the chief said. “They could have, and it would have been denied.” The chief said his officers would have needed to smell that a bomb was being made or to have “received more calls” to secure enough information to legally search the property. “It would have taken signs that actually [a] crime was being committed, that a bomb was actually being made, but to the officers’ view, the only thing he saw was the RV, that he couldn’t see inside, and that he wasn’t allowed access into it,” the chief rationed.  “I believe the officers did everything they could legally. Maybe we could have followed up more. Hindsight is 20/20.” “We had no actual knowledge that a bomb was made, we had no scent,” the chief reiterated.  “There wasn’t anything there.” The chief did not say whether bomb-sniffing dogs were employed. Though the Metro Nashville Police Department has alleged that Throckmorton refused to allow Warner to consent to a search of the RV or other property, Throckmorton tells a local television station in Nashville that Warner was merely a former client and that he “certainly would never have told them [the police] not to check it out.” “I’m the one who said ‘go the hell over there and find out what’s going on,'” Throckmorton told WTVF-TV . Police don’t necessarily need to obtain consent to search Warner’s property. They could have secured a search warrant. Judges issue search warrants based on a so-called “totality of the circumstances” test promulgated by the U.S. Supreme Court in Illinois v. Gates (1983). In that case , a handwritten letter sent anonymously to a police department naming a specific couple as drug traffickers. The letter identified where the couple lived, the dollar amount of drugs the couple kept in their basement, and how they transported the illicit substances between their hometown and Florida (by driving and flying). Based on the tip, a detective learned that a person named the letter had a valid license and that an airline reservation had been taken out in the person’s name. Agents in Florida observed the eventual defendant pick up a car with Illinois plates, leave a hotel, and head for home after spending barely any time in Florida.  It was enough for a warrant, an arrest, a conviction, and an appeal. The defendant challenged the warrant and lost. In a 6-3 decision, the U.S. Supreme Court said that the anonymous letter alone would not have been enough for a judge to issue a warrant, but that the “totality of the circumstances” suggested that the warrant was reasonable. Per the majority opinion buy Justice William Rehnquist : We agree with the Illinois Supreme Court that an informant’s “veracity,” “reliability,” and “basis of knowledge” are all highly relevant in determining the value of his report. We do not agree, however, that these elements should be understood as entirely separate and independent requirements to be rigidly exacted in every case . . . [r]ather . . . they should be understood simply as closely intertwined issues that may usefully illuminate the common-sense, practical question whether there is “probable cause” to believe that contraband or evidence is located in a particular place. Later, the court quoted an earlier case to explain that “[t]he process does not deal with hard certainties, but with probabilities.” Still further in the analysis, the court said that “probable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.  Informants’ tips doubtless come in many shapes and sizes from many different types of persons.” Elsewhere, the court noted that “if an unquestionably honest citizen comes forward with a report of criminal activity — which if fabricated would subject him to criminal liability — we have found rigorous scrutiny of the basis of his knowledge unnecessary.” Again, from the Rehnquist majority opinion: The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Memphis, Tenn. criminal defense attorney Lauren Fuchs  believes that officers had enough information in this case to secure a warrant. In an email to Law&Crime, she explains: In Tennessee, the source of information affects the officer’s ability to use hearsay information as the basis of a search warrant. When using information from a criminal informant, officers must establish the credibility of the informant and/or the reliability of the information. Ms. Perry may have fallen into this category under the circumstances described [e.g., her mental health status and alleged suicidal thoughts]. However, she would most likely have passed muster given the basis of her knowledge. In contrast, Mr. Throckmorton would have been treated as a citizen informant from whom information is presumed to be reliable. I do believe the police would have been able to establish the probable cause necessary to ask for a search warrant with minimal effort using the information provided by both Perry and Throc
Legal Experts: Nashville Police Failure to Get a Warrant After Receiving Tips About Bomber Was ‘Laziness or Sheer Incompetence’ posted first on http://realempcol.tumblr.com/rss