Richmond police say a review of search warrant affidavits written several years ago by a detective, some of which appeared to share possibly improper similarities, did not turn up any wrongdoing or tainted cases.
“They found no nefarious activity. The affidavits are good,” Deputy Chief Steve Drew said last week of the affidavits written by Mark Godwin. “There may be some cutting and pasting in certain instances, but that doesn’t mean it’s not the same scenario.”
Similarities in some affidavits written by Godwin in 2010 and 2011 prompted concerns about cutting and pasting and the possible use of boilerplate language. Chief Alfred Durham said Godwin’s affidavits, initially, “raised some flags.”
Drew said, however, that affidavits can appear “very similar, especially when you’re dealing with street-level narcotics inside a local residence, address, apartment.”
Meanwhile, Richmond police have taken measures to help prevent a recurrence of flawed search warrant affidavits similar to those written by former Detective Jason Norton that have so far resulted in drug and firearm convictions against a dozen people being overturned.
“We’re not perfect. We’re human beings. We don’t always get it right, but when it’s brought to our attention we have to fix it,” said Durham, who was not the chief when Norton, who left the department in 2013, was writing questionable warrants.
Constitutional protections against unreasonable search and seizure require police show “probable cause” a crime has been committed in sworn affidavits given to judges or magistrates. Durham said an investigation of Norton’s questionable affidavits, written from 2008 to 2012, prompted tighter oversight across the department, not just in narcotics investigations.
“One of the things that was alarming to me was the fact that when an affidavit was done in support of a search warrant there was no review by the supervisors, so at a minimum, a supervisor should have been looking at that to ensure that it included the probable cause to forward that to a magistrate or a judge,” Durham said in a recent interview.
To make sure that procedure is followed, Durham said that he has created an internal audit and compliance unit. “They’re solely going to be making sure folks are in compliance with our policy. They report directly to me, a direct report. That’s how important this is to me,” he said.
Also, while police would not disclose all steps that have been taken, a Richmond Times-Dispatch review of affidavits written last year by police for residence searches in drug cases suggests more detailed corroboration of informant allegations in the affidavits, such as controlled drug buys connected to an address, a drug transaction actually witnessed by an officer at a doorway, or a person caught with drugs leaving a dwelling.
When Norton was writing affidavits, probable cause was sometimes established largely on the word of a confidential informant verified somewhat by an officer who might report seeing, for example, an inordinate amount of foot traffic to an address in question.
Ronald J. Bacigal, a professor at the University of Richmond School of Law and expert on criminal law, said the problem is not unprecedented. “It’s well-recognized throughout criminal law you’re somewhat at the mercy of whether the police have the proper integrity,” he said.
“I think what they’re doing sounds like the best solution you can offer,” he said.
Michael N. Herring, the Richmond commonwealth’s attorney whose office has been dealing with the legal headaches created by the Norton affidavits, also said last week that he believes the police response is appropriate.
“It’s hard to craft one that is foolproof,” said Herring. “The best you can do right now ... is put a second or third set of eyes on the affidavits to look for flags of similarities or bolstering, so having a supervisor do it is a good idea.” He said if the affidavits come through his office, “all of my folks are now sensitive to this.”
Herring added he believes that in the wake of the Norton cases, “Judges and magistrates who sign off on these search warrants are going to probably provide a heightened degree of scrutiny.”
The increased police supervision was greeted with mixed feelings by one critic of the department’s handling of the matter, Betty Layne DesPortes, a Richmond lawyer.
“It is nice that they’re saying now that they’re training the officers to do things in a different way with oversight,” DesPortes said. But, she contends, “that doesn’t remedy the situation that they had in place then. And how many people’s constitutional rights were trampled? There was no oversight on those affidavits.”
Norton is under investigation by the Virginia Beach Commonwealth’s Attorney’s Office, which was appointed special prosecutor in the matter. Federal authorities, who first discovered the problem affidavits in 2014, did not prosecute him. U.S. District Judge Henry E. Hudson threw out federal drug and firearm convictions against three people last year as a result of tainted warrants.
Norton has not returned calls for comment. His lawyer, John Rockecharlie, said Norton has not been charged and declined to be interviewed.
Norton, who is no longer an officer, also has not spoken with Richmond authorities. “Was it shoddy work,” or something nefarious, asked Durham. “I don’t know. No one has gone back and spoken to Jason Norton yet.” In any case, he said, “a problem has been identified and now we’re trying to correct it.”
Federal authorities found that Norton used similar or identical descriptions for various confidential informants, strongly suggesting misrepresentations. After the federal probe, Herring’s office launched a review of hundreds of cases handled by Norton during his nine years with the department, looking for ones that may have been tainted to the extent that convictions had to be thrown out.
The prosecutors found that Norton had written differing résumés for the same informant and identical résumés for purportedly different informants. His descriptions of his informants’ backgrounds appeared to be embellished and in some cases there was cutting-and-pasting of segments from one affidavit to another.
Prosecutors and defense lawyers say cutting information from one search warrant affidavit and pasting it to another is a problem because the officer is supposed to be reciting fact. Its appearance in the second affidavit is arguably false because the facts are not really changing even if a new name or address has been inserted or added the second time the material was used, they said.
Herring concluded that convictions against 16 or 17 people may have been compromised. So far, convictions against nine people have been vacated. A tenth conviction has been modified by judges at the request of Herring’s office in a process that continues. Herring said there was no evidence that any of the convicted people — many of whom pleaded guilty — were actually innocent.
Deputy Chief Drew said that when Norton was writing search warrants, “nobody was just getting a phone call and running out and kicking a door within 30 minutes.” But, he said, Norton “would type an affidavit and go give it to a magistrate and we didn’t have it in writing that a sergeant had to review that affidavit and sign off on it.
“I don’t want to say that we can eliminate (problems), because in any job somebody can do something wrong. We’re putting in better checks and balances to reduce the probability of that happening. Not only did we put that in place in the narcotics division, we did that across the board — in our precincts and other units and divisions that do search warrants and deal with informants,” he said.
Drew said there has always been strong oversight when preparing and planning the entry and searching of a residence or business. “What we’ve done is we made sure we put the same oversight in affidavits for search warrants and preparing (them),” he said.
Conscientious supervisors and officers were already doing that, said Drew. “Now we’ve made it a policy, not only in the narcotics manual but across the board that (the affidavit) has to be reviewed and it must be signed off on so that we know it’s reviewed. And then we do a system review of those quarterly to make sure we’re in compliance,” he said.
Drew said that while no wrongdoing was found in the Godwin case, “we did say ... that supervisors will review search warrants and affidavits so that everybody’s on the same page — not only the detective but certainly the supervisor.”
Two of Godwin’s affidavits — written more than six months apart for different addresses — showed strong similarities:
“Also, during the CI’s visit, he/she observed two (2) firearms inside of this residence in plain view. One of the firearms was in the waist band of the blue jean shorts that Corey had on. The CI stated that he/she could clearly see the firearm because Corey was walking around the house with no shirt on. The second firearm was lying on the couch cushion beside one of the unidentified black males. The CI further stated that both firearms were black handguns.”
“Also, while at this residence he/she observed two (2) firearms inside of this residence in plain view. One of the firearms was in the waist band of the blue jeans that Dom had on. The CI stated that he/she could clearly see the firearm, because Dom was walking around with just a T-shirt on. The second firearm was lying on the couch cushion beside Loon. The CI further stated that both firearms were black handguns.”
No handguns were found as a result of the ensuing searches.
Drew said, “There may be a couch or a chair where they keep a gun under. So, if we look at 30 search warrants and there’s two or three that talk about a couch in a living room, I would say, ‘The vaguer we are the better because when you start narrowing it down, you have to be very, very careful that you don’t give up information the bad guy knows only the informant would know.”
Herring said he has not received a final report on the police review of Godwin’s affidavits prompted by his office. However, he said in general, “the law tolerates a minimal degree of recycling at best.”
DesPortes, who first raised questions about Godwin’s affidavits, complained, “They’re making judgments now on the validity of his warrants ... four years after the fact.” She questioned how police could know now if the affidavits were improper and argued, “They don’t know. We don’t know. The public doesn’t know and there’s no way those magistrates could have make a judgment about whether or not there was probable cause to justify intruding in someone’s home.”