Pubdate: Tue, 7 Dec 1999
Source: Denver Post (CO)
Copyright: 1999 The Denver Post
Contact:  1560 Broadway, Denver, CO 80202
Fax: (303) 820.1502
Author: Marilyn Robinson, Denver Post Staff Writer
Bookmark: Link to Colorado articles:


Warrant For Search In Which Man Died Wasn't Justified, Lawyer Says

The American Civil Liberties Union slammed Denver officials Monday for
authorizing a "no-knock" drug raid in which a father of nine was killed.

"If the government officials who authorized the warrant had followed the
law, Ismael Mena would be alive today," said Mark Silverstein, the ACLU's
legal director in Colorado.

Silverstein said there wasn't enough information to justify a warrant, let
alone a no-knock warrant where officers force their way in and then
announce themselves.

"No-knock warrants should be the rare exception and not the rule,"
Silverstein said.

Mena, 45, was killed Sept. 29 in an exchange of gunfire with SWAT officers
after they smashed their way into the northeast Denver home where he was
living. Authorities said they shot at Mena after he pointed a gun at them
and fired.

No drugs were found in the home nor were any drugs found in Mena's system.
Neighbors also have said they didn't see any drug activity at that house.

Silverstein cited what he said were three problems in the investigating
officer's affidavit: It relied on the word of an informant without
explaining why the informant was considered reliable; it failed to provide
any information to suggest drugs would be found; and said, in support of
the request for a no-knock warrant, merely that guns are commonly found
with drugs.

That's a stereotype that the U.S. Supreme Court unanimously rejected two
years ago, Silverstein said.

"You have to provide specific facts about this particular home and this
particular search," he said.

The warrant was based on an affidavit from a neighborhood police officer
who said he saw a "previously reliable informant" go to the house, where
the informant bought a "rock" of crack for $20.

A special prosecutor has been appointed to look into the shooting because
one of the SWAT officers involved in the raid is related to an investigator
with the Denver District Attorney's Office. But the Denver DA's office is
investigating issues surrounding the search warrant.

The focus of that investigation is whether there is any issue of perjury in
the application for the search warrant, Denver DA Bill Ritter has said.

Denver police and the DA's office declined comment Monday on Silverstein's
remarks, saying the case is under investigation.

But County Judge Raymond Satter, who signed the warrant, stood by his action.

"We have to rely upon the officers," Satter said. "All I know is there was
probable cause set forth in the warrant for me to issue it based on what I
read there and what the officers told me under oath."

Satter said during his 12 years as a county judge he has signed thousands
of warrants and turned down some -- "but not that often. Officers generally
have their act together pretty well."

Reactions among others in the legal community were mixed.

Probable-cause is "clearly a judicial determination, not a determination by
the ACLU," said Adams County DA Bob Grant.

No-knock warrants are intended to protect officers and to prevent the
destruction of evidence, Grant said. He then questioned Silverstein's

"How many search warrants has Mr. Silverstein actually executed himself?
How many times has he put himself in harm's way at an offender's door?"

Craig Silverman, a Denver trial lawyer and a former prosecutor, questioned
the wisdom of no-knock warrants.

"Why do you have police officers risking their lives and putting other
people's lives at risk for a crime that routinely results in no
incarceration in Denver?" Silverman asked. 
- ---
MAP posted-by: Richard Lake