MANHATTAN (CN) - An immunity defense is premature for the drug investigator who led a turbulent raid on the apartment of a family with no criminal history, the 2nd Circuit ruled.
The decision from a split panel of the federal appeals court recounts how Ronita McColley, a mother who worked at Albany's Center for Disability Services, and her young daughter received a rude awakening from a tactical unit.
"On July 3, 2008, at approximately 6:00 a.m., McColley was awoken in her home by the sound of the City of Troy Police Department Emergency Response Team ('ERT') knocking down her door and the explosion of a flash-bang grenade," the 20-page majority opinion states. "Dressed in all black, wearing face masks, and carrying automatic weapons, the members of the ERT screamed for McColley to get on the floor, but as there was not enough space for her to lie on the floor, a member of the ERT instead shoved McColley face down onto her bed. As she had been roused from sleep, McColley was clad in only a T-shirt and underwear. She repeatedly requested to cover herself but was repeatedly denied."
Michael Riley, an investigator for the Rensselaer County Drug & Gang Task Force, obtained the warrant days earlier based on the word of a confidential informant.
Though the CI claimed to have bought crack-cocaine from a man named Sport at the apartment, Riley conducted a background check on the property that revealed McColley as the tenant with her spotless record and young child.
He applied for the no-knock warrant anyway without mentioning the background check, the two-judge majority found.
"The search of McColley's home did not uncover any money, weapons, drugs, drug-related paraphernalia, or any evidence of criminality of any kind," Judge Rosemary Pooler wrote for the court. "The ERT took only a National Grid electric and gas bill and a registration bill for Hudson Valley Community College as fruits of the search."
Accused of violating McColley's Fourth Amendment rights, Rensaleer and Riley claimed qualified immunity, but U.S. District Judge Lawrence Kahn denied them summary judgment.
In dismissing the appeal of that decision Tuesday, Pooler said the issue "is not properly before us at this stage of the proceedings."
In a concurring opinion, Judge Guido Calabresi wrote that the search of McColley's apartment resembled more of a "military invasion than the knocking and entering envisioned, and generally required, by our law."
"If police were able to invade the quiet home of a law-abiding woman and her child without knocking and identifying themselves, simply because they believed that the home contained drugs, then it is unclear when the police could ever not enter unannounced, at least when drugs were being investigated," Calabresi wrote.
Judge Reena Raggi argued in dissent that the police informant's "track record for reliability" justified a no-knock warrant.
"As for McColley's lack of criminal history, we cannot conclude that no reasonable officer would credit a reliable CI's eyewitness account of drug dealing in a particular location simply because the record resident did not have a criminal record," Raggi added.
Attorneys involved in the case did not return requests for comment.
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