Governor Ralph Northam ceremonially signed “Breonna’s Law” on Monday. The law bans no-knock warrants and is named after Breonna Taylor, a Kentucky resident who was killed in her home in March by police. It also bans night-time search warrants without authorization by a judge or magistrate. But Virginia police advocates say the law is too broad — a wholesale ban on a law enforcement tool that they say is already rarely used.
“To have zero exceptions puts our community in danger. What most people don’t understand is that in the Breonna Taylor case, the officer DID knock and announce. This new bill would not have altered that tragic situation with her being caught in the crossfire,” Virginia Association of Chiefs of Police (VACP) President Maggie DeBoard told The Virginia Star. DeBoard is also the Chief of Police in Herndon, Virginia.
“Our citizens and our law enforcement officers deserve better. We hope to work with the General Assembly to make these critical adjustments in the 2021 session,” DeBoard said in a press release.
“Virginia is leading the way on policing reforms like this one, which will make our communities safer and our criminal justice system more fair and equitable,” Northam said in a press release. “While nothing can bring back Breonna Taylor, and so many others, we honor them when we change laws, when we act to right long-standing wrongs, and when we do the work to make sure more names do not follow theirs.”
VACP Executive Director Dana Schrad said, “No-knock warrants are a rarity in Virginia to start with, but to eliminate them entirely fails to address those exigent situations where a life is in danger or evidence is being destroyed.”
“The majority of search warrants are conducted at night due to the criminal activity being conducted and the need to safely approach a residence when few people are outside, to allow LEOs [Law Enforcement Officers] to stage without being targeted and to minimize physical or armed encounters with citizens,” DeBoard said. “Outside of administrative search warrants, it is estimated that 90 percent are served during darkness. Just last week a couple of Henrico officers were shot at during daytime hours while trying to serve a search warrant.”
DeBoard said the new law only allows night-time search warrants if a judge approves them, a process that could delay necessary police action. However, she said the VACP does support asking magistrates to approve night-time warrants.
“The current language requires the signing of an affidavit by a magistrate, then make reasonable efforts to try and find a judge. If unsuccessful, go back to the magistrate and put additional language in the affidavit on how you tried to find a judge. This could create significant delays. We find this could not only compromise safety, but is also not operationally efficient and unnecessary,” DeBoard said.
DeBoard instead suggested that only magistrate authorization be required.
“Magistrates already rule on whether an LEO has sufficient probable cause to search (the most crucial point of law to make), so we expect they could also rule as to whether an LEO has shown good cause to search outside of daytime hours,” she said. “We don’t oppose adding that an LEO put that justification into a search warrant affidavit for the magistrate to rule on before it is issued.”
DeBoard said the law would also insert red tape into searches for missing persons.
“The current bill also does not account for the service of other administrative search warrants at night that are often needed such as cell phone searches, gun shot residue on the hands of a suspect in custody, DNA swabs, vehicle searches, etc,” DeBoard said. “When looking for a missing kid or person, these searches would need to be conducted as soon as possible and certainly without unnecessary administrative delays.”
But DeBoard isn’t calling for a wholesale repeal of the law, and she supports adding oversight into the warrant process.
She concluded, “As a result, we highly suggested changes to the bill to alleviate the burden of a judge’s authorization for nighttime searches, which will eliminate critical delays in service, streamline the administrative process, but still require LEOs to justify the service of a search warrant outside of daytime hours.”
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