Metro Nashville Police Chief John Drake on Wednesday afternoon claimed his department had no reasonable suspicion and no probable cause to search the home of the man who blew himself up on Christmas morning after receiving tips about alleged bomb-making activities dating as far back as Aug. 2019. But several legal experts, including defense attorneys, former prosecutors, and even a former judge tell Law&Crime that Drake is wrong on the law and wrong when it comes to police tactics given the facts which have recently emerged in the case.
DNA consistent with Anthony Quinn Warner, 63, of Antioch, Tenn., was found on tissue samples recovered from the area of the blast which caused widespread damage. Warner’s RV was also confirmed to have been the one which exploded through a recovered vehicle identification number. Three people were injured, and telephone communications across several states were disrupted.
Earlier Wednesday, Law&Crime extensively reported on police records which indicate that a Nashville attorney, Raymond Throckmorton, called 911 to report that Warner’s girlfriend, Pamela Perry, had “made a number of threats about her own life” and was sitting on her porch with firearms. The police met Throckmorton near Perry’s house and discovered Perry sitting right where Throckmorton said she would be with two pistols owned by Warner. Perry said Warner “was building bombs in the RV trailer at his residence,” according to the police report from Aug. 21, 2019, more than 16 months before the blast rocked Nashville on Christmas Day 2020. Per the report, Throckmorton also told the police that Warner “frequently talks about the military and bomb making” and that “he believe[d] that the suspect [Warner] knows what he is doing and is capable of making a bomb.”
After securing help for Perry, the police checked Warner’s nearby house. They knocked, but Warner didn’t answer. They confirmed Warner had an RV in a fenced-in yard area, but they could not see inside it.
“Police also observed that the location has several security cameras and wires attached to a alarm sign on the front door,” department paperwork says.
In a Dec. 30, 2020 press conference, Police Chief Drake added that officers checked Warner’s house for several days.
“The officers went by for at least—maybe longer than a week or so, and they knocked on the door, they went by, drove several times,” and checked FBI databases, the Chief Drake said.
“He’s been squeaky clean” since that time, the chief said of Warner. “To my knowledge, we only had one call for service, that was the lady who made suicidal threats, and she was subsequently unavailable.”
But the chief said that the officers could have done little more about Warner because they “did not have the knowledge” to do so back in Aug. 2019.
“We had no legal basis for search warrants or subpoenas based on what we knew at that time,” the chief said during the December 30, 2020 press conference.
“The officers did not have probable cause to get a search warrant,” the chief said. “You have to have probable cause that a crime is being committed or about to be committed.”
Furthermore, “they had no reasonable suspicion to go to a judge,” the chief said. “They could have, and it would have been denied.”
The chief said his officers would have needed to smell that a bomb was being made or to have “received more calls” to secure enough information to legally search the property.
“It would have taken signs that actually [a] crime was being committed, that a bomb was actually being made, but to the officers’ view, the only thing he saw was the RV, that he couldn’t see inside, and that he wasn’t allowed access into it,” the chief rationed. “I believe the officers did everything they could legally. Maybe we could have followed up more. Hindsight is 20/20.”
“We had no actual knowledge that a bomb was made, we had no scent,” the chief reiterated. “There wasn’t anything there.”
The chief did not say whether bomb-sniffing dogs were employed.
Though the Metro Nashville Police Department has alleged that Throckmorton refused to allow Warner to consent to a search of the RV or other property, Throckmorton tells a local television station in Nashville that Warner was merely a former client and that he “certainly would never have told them [the police] not to check it out.”
“I’m the one who said ‘go the hell over there and find out what’s going on,'” Throckmorton told WTVF-TV.
Police don’t necessarily need to obtain consent to search Warner’s property. They could have secured a search warrant.
Judges issue search warrants based on a so-called “totality of the circumstances” test promulgated by the U.S. Supreme Court in Illinois v. Gates (1983). In that case, a handwritten letter sent anonymously to a police department naming a specific couple as drug traffickers. The letter identified where the couple lived, the dollar amount of drugs the couple kept in their basement, and how they transported the illicit substances between their hometown and Florida (by driving and flying). Based on the tip, a detective learned that a person named the letter had a valid license and that an airline reservation had been taken out in the person’s name. Agents in Florida observed the eventual defendant pick up a car with Illinois plates, leave a hotel, and head for home after spending barely any time in Florida. It was enough for a warrant, an arrest, a conviction, and an appeal.
The defendant challenged the warrant and lost. In a 6-3 decision, the U.S. Supreme Court said that the anonymous letter alone would not have been enough for a judge to issue a warrant, but that the “totality of the circumstances” suggested that the warrant was reasonable. Per the majority opinion buy Justice William Rehnquist:
We agree with the Illinois Supreme Court that an informant’s “veracity,” “reliability,” and “basis of knowledge” are all highly relevant in determining the value of his report. We do not agree, however, that these elements should be understood as entirely separate and independent requirements to be rigidly exacted in every case . . . [r]ather . . . they should be understood simply as closely intertwined issues that may usefully illuminate the common-sense, practical question whether there is “probable cause” to believe that contraband or evidence is located in a particular place.
Later, the court quoted an earlier case to explain that “[t]he process does not deal with hard certainties, but with probabilities.” Still further in the analysis, the court said that “probable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules. Informants’ tips doubtless come in many shapes and sizes from many different types of persons.”
Elsewhere, the court noted that “if an unquestionably honest citizen comes forward with a report of criminal activity — which if fabricated would subject him to criminal liability — we have found rigorous scrutiny of the basis of his knowledge unnecessary.” Again, from the Rehnquist majority opinion:
The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
Memphis, Tenn. criminal defense attorney Lauren Fuchs believes that officers had enough information in this case to secure a warrant. In an email to Law&Crime, she explains:
In Tennessee, the source of information affects the officer’s ability to use hearsay information as the basis of a search warrant. When using information from a criminal informant, officers must establish the credibility of the informant and/or the reliability of the information. Ms. Perry may have fallen into this category under the circumstances described [e.g., her mental health status and alleged suicidal thoughts]. However, she would most likely have passed muster given the basis of her knowledge.
In contrast, Mr. Throckmorton would have been treated as a citizen informant from whom information is presumed to be reliable. I do believe the police would have been able to establish the probable cause necessary to ask for a search warrant with minimal effort using the information provided by both Perry and Throckmorton. Police get search warrants for drugs based on far less every day.
Of course, we now have the benefit of retrospect. Most likely, the police just did not think Warner posed a threat, so they did not actively pursue further investigation. Unfortunately, Christmas morning proved them wrong.
Under Tennesee law, possessing any “component part of an explosive including, but not limited to, a fuse cap, detonator or wiring, with the intent to produce or manufacture an explosive device” is a misdemeanor. Federal laws also apply.
Those who wish to legally traffic in explosives must obtain permits. From November 2013 to November 2016, Warner actually did hold an explosives handling license, CNN reported (citing public records). Warner also held alarm contractor licenses between 1993 and 1998. Those permits would have expired when police were tipped off about Warner’s alleged activities in Aug. 2019.
Former New Jersey prosecutor and current criminal defense attorney Bob Bianchi said the police chief was flatly “wrong on the law” and incorrect on his tactics. Bianchi said the police “absolutely” should have sought a warrant. “You try, and if it doesn’t work, it doesn’t work,” Bianchi said.
As a prosecutor, Bianchi was the chief law enforcement officer who supervised 44 law enforcement agencies. He says his office would have been called for advice about securing a warrant had such a situation occurred in his jurisdiction and that lawyers in his office—not the police—would have been the ones to decide the probability of success before a judge. Bianchi, a Law&Crime Network host, questioned whether the Nashville District Attorney’s Office or the sheriff’s internal lawyers were consulted or whether additional investigation and questioning by the police would have yielded more useful information to increase the chances that a warrant application would be successful.
Given the quality of the tips, Bianchi also said he would be shocked if a magistrate did not issue a warrant to allow the police to search Warner’s home and RV.
“Judges typically approve warrants. The worst that could happen is that the warrant could be invalidated later on,” Bianchi said while noting that warrants, legally, are presumed valid when issued. “As a law enforcement officer, my primary concern is the protection of the community. This comes down to sheer, in my mind, laziness or sheer incompetence.”
Bianchi, whose job as prosecutor was to support the police, said the Nashville chief was using the law to scapegoat his department’s poor decisions in this case.
“What judge would have refused to sign the warrant with a lawyer calling in the information about a man with an expired permit for explosives?” Bianchi asked rhetorically. He noted that the girlfriend’s statements and the officers’ observations of security defenses at Warner’s home would have strengthened the application.
“I have so many questions about the failure to try to obtain a warrant; I just can’t believe it,” Bianchi said.
Former Judge Richard Giardino, who was previously a county prosecutor and who is now the sheriff of Fulton County, N.Y., tells Law&Crime that the police should not have “tried to second-guess the judge on a search warrant application.” Giardino was referring to Chief Drake’s claim that a judge would not have signed off on the warrant.
Giardino signed warrant applications when he served on the bench as a county court judge and as an acting New York State Supreme Court judge. In New York, supreme court judges are akin to superior court judges in other states; they handle broad civil and criminal matters within a judicial district.
Speaking about the case in Nashville, Giardino said that Perry, the bomber’s girlfriend, provided information as a direct witness which could have been attached to a warrant application. Perry could probably have been asked to give a full statement, Giardino said. He added that the constant law enforcement demand for the public to “see something” and then “say something” must be backed up with action by the police. He said law enforcement is “responsible” for properly following up on information given by asking follow-up questions, seeking to obtain statements, and documenting conversations in reports.
Judges must be mindful of the U.S. Constitution’s Fourth Amendment promise that citizens shall be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Here, however, Giardino said a judge “wouldn’t have a reason to deny the warrant” based on the quality of the information obtained.
Legally, so long as the girlfriend (1) saw Warner with the materials, (2) that Warner provided the girlfriend with statements about what the materials were for, and (3) that the statements and observations were recent, then “that’s sufficient” for a warrant, Giardino said.
Giardino posited that a judge probably would have authorized a warrant had one been sought but that the judge may have limited the warrant’s reach. The judge perhaps would have authorized a search of only the RV where the police were told the bomb making was occurring, Giardino said. If fruitful information was recovered therein, an expanded warrant for the house could have been subsequently obtained.
Former prosecutor Mike Koribanics, who is now certified by the Supreme Court of New Jersey as a criminal trial attorney, also agreed that a warrant would likely have been issued based on the information available to the police in Aug. 2019. “It is a very serious matter when an attorney pierces the sanctity of the attorney/client privilege, even when it is required,” Koribanics said. “Attorneys are required under the ethics rules of several states, including Tennessee, to report conduct they believe is necessary to prevent reasonably certain death or substantial bodily harm. Judges who review warrant applications are fully aware of these rules and would give great weight to the reliability of any statement made by an attorney concerning a former client. That’s because attorneys can’t disclose confidential information unless they’ve carefully weighed the matter, are convinced the matter is serious, and reasonably believe disclosure is necessary.”
Law&Crime reached out to Nashville Police multiple times Wednesday. The only responses received were to direct Law&Crime to the chief’s afternoon press conference and to a copy of a statement therefrom. The statement is included below:
Nashville Police Chief John Drake’s Remarks – December 30, 2020 by Law&Crime on Scribd
[Image via Terry Wyatt/Getty Images]
Editor’s note: This piece has been updated to include the assessment of attorney Koribanics.
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