By GARY POPP
FLOYD COUNTY — A letter recently obtained by the News and Tribune highlights a fractured relationship between the New Albany Police Department and the Office of the Floyd County Prosecutor.
The letter, written by NAPD Chief Sherri Knight and addressed to Floyd County Prosecutor Keith Henderson, lays out new procedures, including the police department no longer submitting search warrants for the prosecutor’s review, which brings into question the most efficient procedure in processing major crime scenes.
The broader picture, in at least one former prosecutor’s eyes, is whether Knight’s decision to remove Henderson’s office from the search warrant process compromises the Constitutional rights of county residents. While law enforcement agencies in the area have varying policies regarding search warrants — some see no problem with Knight’s action — her letter and change in procedure, is, at the very least, unique.
“It is hard to understand a law enforcement agency sending a letter like to that the prosecutor’s office of their county,” said Jeffersonville attorney David Mosley, of Mosley, Bertrand, Jacobs & McCall, who has more than 25 years of legal experience. “It suggests a really poor relationship between the New Albany Police Department and the prosecutor.”
Knight’s action was sparked by a triple-death investigation in March that captured headlines across the state and the ensuing fallout between the police department and the prosecutor’s office about the handling of evidence.
The letter is dated March 21, six days after Henderson held a news conference providing information about the Clutter family triple-death scene in Binford Park.
The three-paragraph letter reveals the rift between the two offices and includes statements regarding the interaction between police and prosecutors as search warrants are obtained and on major crime scenes.
LETTER OF A CHIEF
In the only statement received from Knight, she sheds light on her motivation of establishing the change in communication with Henderson’s office.
“During a recent investigation, confidential details and facts related to the incident were conveyed to the prosecutor’s office,” Knight said in a statement emailed from a city spokesman. “This confidential information was then disclosed to the media by the Prosecutor’s office, which compromised the effectiveness of the investigation,” according to Knight’s statement. “In an effort to uphold our values of accuracy, thoroughness, and integrity, certain safeguards were enforced with respect to the reporting and gathering of information. I informed the Prosecutor’s office on March 21, 2013, of these safeguards.”
Henderson declined to be interviewed for this story.
The letter, which was provided after a request to the city’s legal department, opens with Knight informing the prosecutor’s office of immediate changes the police department is implementing.
“While all members of our department have enjoyed working with your investigators in the past few years, we will no longer require their assistance in typing search warrants, nor will we be submitting search warrants to your office for review.”
The letter continues: “New Albany Police Officers are more than capable of drafting search warrants, and the are ultimately responsible for the probable cause that is presented to the judge when making such requests.”
When a obtaining a search warrant for a home or automobile, an officer must have the warrant issued by a judge. What is not required is a prosecutor or deputy prosecutor to review the search warrant prior to submitting it to a judge for final approval.
At issue is providing the officer discretion, or, as Knight has recently done, according to the letter, setting a policy that officers obtaining search warrants will never accept the review from the office of the Floyd County prosecutor.
WHO IS IN CHARGE?
Officials from surrounding law enforcement agencies, including the Indiana State Police and the Jeffersonville Police Department, say it is up to the officer whether or not to receive a prosecutor’s review while obtaining a search warrant.
“It is definitely not a [JPD] policy to have the prosecutor review a search warrant prior to the application process with the judge,” said JPD Detective Isaac Parker said. “That being said, we have an excellent relationship with the office of the Clark County Prosecutor. Our investigators communicate with prosecutor’s office on a regular basis, so they are aware of the status of our investigation almost up to the date.”
Opposite of the NAPD’s stance, the Floyd County Sheriff’s Department always accepts the safety measure of the attorneys’ review.
"We never go straight to a judge on any search warrant,” said Floyd County Sheriff Darrell Mills. “The prosecutor requested us to file all search warrants through his office, so that is what we do."
The letter certainly raises eyebrows, says David Powell, executive director Indiana Prosecuting Attorneys Council.
“The first paragraph of the letter, which sort of said, ‘We are not going to talk to you,’ is certainly an issue of concern,” Powell said. “If I was the prosecutor, I would not have been happy to receive this letter, if that is your question, primarily, because, as you know, in any search warrant, a prosecutor has to defend those actions, and, typically, a prosecutor would want to know the content or want to know issues regarding the warrant.”
Powell said by the NAPD setting a policy of strictly bypassing a prosecutor’s review of search warrants, the community stands to risk an abridgment of their Fourth Amendment right, which guards citizens of unreasonable search and seizure.
“Let’s just say this, prosecutors are responsible, kind of, for oversight,” Powell said. “Police officers do not directly work for us, but indirectly they do, and the Fourth Amendment is serious business, and by that I mean, anytime someone’s home is searched, for whatever reason, a prosecutor needs to be concerned about that,” Powell said. “First of all, we want to make sure the search is appropriate, that the investigation is appropriate, and that we are not exceeding the scope of governmental authority and it is being done for the right reasons. The best way to do that is to review the material, make sure that you know what the case is about and that the search is appropriate before it is submitted to a court for final approval.”
Powell, a former prosecutor in Green County, said the NAPD is within the law to bypass a prosecutor’s review, but added it is not a good practice.
“I was an elected prosecutor for 20 years and that was my practice. I wanted every search warrant that was involved in my community to have us looking at it, and that’s our role, to assist law enforcement. You are there to assist them, not to impede them and to make sure the work is done correctly. I can’t expect a police officer to understand the Fourth Amendment. That is our job, not their job.”
RESPONDING TO THE SCENE
In the second paragraph of the letter drafted by Knight, she states that in the event of a major crime, Henderson’s office will be contacted by NAPD, “... upon completion of the investigation, or when enough probable cause has been established for an arrest warrant, at which time the proper paperwork will also be submitted.”
Without an interview with Knight or Henderson, it remains undetermined exactly how, or if, Floyd County prosecutors will respond to NAPD crime scenes.
While Mosley, the Jeffersonville attorney, has more than a quarter of a century arguing litigation, he said Knight’s current stance toward the prosecutor’s office is something he has never witnessed.
“I have never heard of that, a police department telling the prosecutor they are not going to be involved in the investigation until the conclusion,” Mosley said. “I can think of no good reason for that.”
While Mosley often defends clients facing charges issued by a prosecutor’s office, he said it is the state which can suffer from the rocky relationship.
“Police officers are maybe trained in some aspects of the law, but they are not lawyers, or up to date with constitutional standards,” he said. “In my experience, search warrants [that are later] suppressed are those that police officers got on their own.”
Mosley, who says Knight is acting legally, identified another problem of the apparent communication breakdown, saying a prosecutor may oversee several investigations being carried out concurrently by multiple law enforcement agencies.
“The prosecutor is going to work with all agencies — ISP, the Sheriff and the feds. If you don’t vet your investigation via a search warrant with the prosecutor, you stand the risk of jeopardizing other investigations going on,” he said. “You can blow things other agencies are working on. It’s a much better policy to have a search warrant vetted by the prosecutor.”
John Hall, president of the Fraternal Order of Police Lodge 99 in New Albany, supports a healthy communication between law enforcement agencies and prosecutors.
“As a FOP representative, I would advise any officer that is going to submit a case for prosecution to have communication with the person leading the prosecution of a case,” he said of officers and prosecutors working hand-in-hand while obtaining search warrants. “They [prosecutors] are an important part of prosecuting process.”
The FOP organization Hall represents includes officers from the NAPD, Floyd County Sheriff’s Department, ISP and several federal law enforcement agencies.
Hall said he can’t comment on the intent of the content of the letter drafted by Knight, but said cooperation among law enforcement agencies is going to be the best route for all involved.
“As a union representative, I would say it is always in the best interest of a law enforcement agency to have a working relationship with a prosecutor’s office, and other agencies such as the Sheriff’s Department, Fire, EMS, to get the job done,” Hall said. “On major crime scenes, it is important for you to work together with every agency.”
Floyd County Sheriff Mills said his deputies have a strong relationship with the prosecutor’s office.
"Any major crime scene that the Floyd County Sheriff’s Department has, my staff immediately contacts the prosecutor’s office and notifies him or his staff, and he then decides to respond or to send someone else to the crime scene," Mills said. “It’s one of the first calls that goes out.”
Mills continued that a prosecutor can be valuable resource on an active crime scene, where resources can be limited and new information may developing by the minute.
“It is manpower, too,” he said, adding that in past cases representatives of the prosecutor’s office have even delivered a search warrant, which frees up sheriff’s investigators to attend to the crime scene.
“It is our policy on any major crime scenes to notify the prosecutor, and it is up to him to decide to come or to sent someone else from his office,” Mills said. “It gives you and additional set of eyes, plus, it is the prosecutor who is going to eventually prosecute the case.”
JPD Detective Parker mirrored Mills’ comments, saying a prosecutor can enhance the quality of work conducted on a crime scene.
“Absolutely, they [prosecutors] would be preferred to be at the scene,” he said. “If a prosecutor from Clark County wants to come to our crime scene, we welcome the support and advice.”Clark County Chief Deputy Prosecutor Jeremy Mull said he has assisted in reviewing hundreds of search warrants in recent years, and he responds to crime scenes to work with officers.
“Prosecutors can work with the police at the early stages of an investigation to assist and expedite much of the work that needs to be done,” he said. “Also, when I present a criminal case in court, I need to know that case better than anyone.”
Mull said the public is better protected as a result of the teamwork approach between Clark County prosecutors and officers.
“Being at the scene to see and understand what occurred is very important in being able to recreate that event for jurors,” he said.