We're back again and we're continuing our conversation about I lost the agenda again but I know what the bill is is S 140 and our final witness on S 140 is here. This is the time of year when witnesses get stuck in other committees and so we thank you for coming this morning. Davis our director she'll give her her title. Thank you. Hi good morning. Susana Davis racial equity director for the state sorry for being late and for struggling to get off of mute. Well that's actually part of the what happens when we get close to Cressover. No problem. Please go ahead. Thank you. So I am here just to give some brief remarks in support of S 140 I believe we're talking about which is related to court services and protections and civil arrests in state buildings and court locations. Very generally and very simply because I think you've probably heard from others who have detailed their support in with greater accuracy. I think that I would just like to share that this is a really important bill for government. We are a state that of course is a border state and because of that we've experienced our fair share of more than our fair share of tension with the federal government and with others who have perhaps varied views on immigration in the United States and what implications it should have in people's day to day lives. We as a state I and many others respect and honor and rely on and appreciate the community of immigrants and refugees and undocumented persons and anyone else who is new to the state or the country and the reliance in particular of our agricultural sector on this group means that we have a responsibility not just to benefit from the labor in the presence of folks who are in the state but also to recognize that as members of our community and as participants in our economy we've got to have a focus to make sure that they are well protected as long as they're on our turf. So I am strongly in support of this bill which would provide protections and of course and a gives me a right of action for those who are against being arrested for things like immigration and I'm saying that because that's one of the biggest ways in which we see this happening is ICE arrests. In my last few years in New York before I came to Vermont I think the situation had gotten really untenable. There were all kinds of nefarious ways that agents were looking to befriend people inside and outside of courthouses just so that they could either secure recorded offhand non-marandized confessions or just get them alone in a room so that they could then proceed to arrest and remove them. If enforcement of federal immigration laws or any other civil laws is going to take that level of well I'll say it underhandedness then I think that that's a time when we really need to step back and ask ourselves what is our purpose as a state what is our goal as a state and what role do we want to play in helping that in fueling that system. I think that this bill is an appropriate stop gap so that we can not only protect ourselves but also protect people. If we expect them to show up for court for other matters then it shouldn't be creating a chilling effect under threat of potentially being taken away for something else. So I'll stop talking here again I think that you've probably heard it more eloquently said from others but I just wanted to appear with you in person and make sure that I express my strong support for the bill. I think we've lost Senators Sears so I imagine he just lost his feed for a second so Senator White. Thank you.  You found that out in New York that this law is enforceable. Yeah correct we actually I was surprised to see that it actually appears to be going quite smoothly and the right of action actually is an important piece here because it's first of all signals that we're serious about it that we want to protect people so much so that we want to make sure that they have recourse in case this is violated and that matters because for example when we introduced I don't know driver privilege cards we had a policy that said we're not going to take these lists and give them to ICE and then the lists were taken and given to ICE and so by adding by attaching an enforceability clause here what we're doing is saying we're we're serious about saying we want to protect people from these negative outcomes from these consequences and we're going to do that by utilize leveraging our own organ of the state to ensure that people do have that recourse and I think that that matters because it demonstrates a genuine commitment to wanting to see this outcome it makes it so that it's not performative and it makes it so that it actually has teeth thank you thank you I'm sorry I missed part of the testimony that my feed went down my internet is unstable again today. We all at some point or another. Yeah I think so I'm afraid so so I missed part of your testimony and the question from Senator White. I don't know if there are the questions. I deeply apologize for missing part of your testimony but I think I got the flavor of it that it is a problem that this bill will partially address. I can just imagine if somebody is a victim of domestic violence for example tries to go to the county courthouse to get relief and gets arrested by ice or some other group that that's what strikes me particularly difficult or somebody's trying to get redressed for a violence against them or some other matter. Correct and I think that when you start to think about mixed status households then things get even more complicated because at that point now our futures and outcomes are bound up with those of the people around us and so it creates a chilling effect certainly for the individual but also for people around them because of the domino effective consequences that it's going to have on households on families on workplaces etc. Thank you very Senator White has another question. I do thank you we had a discussion earlier this morning because it was on about the way it's written if it if I remember it correctly. The discussion was that if the the person is there because they are involved in some court. They're there on business. But the family member isn't there on business. Are we also protecting the family member here from arrest the brother or the daughter or whoever. I think that there was some discussion about the way it was worded and what we were doing. So I just want to make clear that we are also protecting the family member that comes for support or the ride or whatever. I'm probably going to defer to other witnesses who are going to be coming at it from that deeper legal perspective particularly those in AGO DGO and or the court system only because I think that they'll be able to provide you a much better insight into how that's going to be that language is going to be interpreted in Vermont courts and in proceedings here. But I will say that to the extent that you're willing if the language does not clearly does not clearly state that family members are also protected. I would encourage the committee to consider that as well because of course we know that you know when we think about chilling effect that doesn't just extend only to the individual in question. It extends to anybody who depends on that person. So you know I'm thinking about Households here who are mixed status. Perhaps you have a child who was born in the United States and parents who were not and the things that individuals in that family feel safe doing or not doing which is certainly an implication that extends to people in in a person's orbit. Thank you. Thank you very much for hanging in with us and thank you for being here. Thank you. Are there any other questions? If not, why don't we're going to go to a different bill. That's 228 that deals with no knock warrants. And to introduce that bill we have Senator Ron Hinsdale from Chittenden County who is the lead sponsor of the bill. No, welcome, Senator. Thank you, Mr. Chair. Thank you, committee. Nothing is before we start. I'm sorry. I've got an unstable Internet. If I get bounced off again, please don't take offense and Senator Bruce, please take over the meeting. I'll try to get back in as soon as I can. Go ahead, please. Sounds good or not good, but understandable. Well, it's it's life in the zoom world. Right. So so the no knock warrant ban is fairly straightforward. Six states have restricted no knock warrant bans and this would fall into that same category. Some states have more exemptions from the ban than others. This particular bill includes one exemption. So just to take a step back, the overall idea behind this bill is that currently officers can in Vermont and in many states in the country can can receive a warrant that does not require any notice, any indication that law enforcement is entering a space. This we've seen the use of two no knock warrant bans in Vermont in recent years, one that resulted in the death of someone, one that involves some stray bullets into neighbors homes. It's it's determined that about 10 deaths each year of completely innocent people occur because of no knock warrants. Most recently, people may have read about the sad, unfortunate murder of Amir Locke in Minneapolis, who they who it's believed between the police entering the home without any indication and killing Amir Locke was about nine seconds with not a lot of words exchanged with him. This follows on the heels of the devastating murder of Breonna Taylor as well in Kentucky. And so this bill does have an exemption for a situation where the officer believes that their life or the life of someone inside would be endangered if they were to knock on the door. Other states have a number of additional exemptions. I think those create a lot of loopholes to make the ban essentially ineffective. But you know, I also maintain as I've come to this committee to testify that the notion that an officer believes their life or the life of someone else is in danger if they knock should still be predicated on a really strong registry of disclosure around any misclassification of information or mischaracterization of information in an officer's past. So I think their you know, honesty and credibility is certainly in question here. And this ties back to something we're working on in Senate government operations in my mind around officer accountability and credibility. But regardless, I felt this exemption made sense for law enforcement to be able to execute their duties safely and without laws of life. And I believe with that exemption, this may have the support of the Attorney General's office that was an original indication they were looking at Nevada, which has about five exemptions. And so you have to get their perspective. But you know, this is an issue that continues to come up around the country. Truly, I think Vermonters believe we are, you know, we are home is our domain. We have lots of people who have shot at folks who've come into their house unannounced. I believe a no knock warrant ban in a state like Vermont that prides itself on people being the sort of king of their castle, you know, can only create more loss of life and more dangerous situations than ensuring that proper procedures are followed and people are announced before entering someone else's home. Senator Bruce first, and then I think Senator Benningette. Thank you, Senator. I appreciate the introduction of the bill and the start of the conversation. I did want to ask you about that exception, because, you know, with the use of force bill, for instance, we talked a lot about an officer's perception of threat to themselves. And speaking only for myself personally, it has seemed to me over the years that that has become a one size fits all you know, personal exemption from most sorts of responsibility for a police officer. Inevitably, when when someone is killed through, you know, use of lethal force, the officer and the police union immediately say that the officer was in fear for his or her life. So I'm curious with with the no knock warrant, it seems as though the reason that would be stated for the no knock warrant is that it decreases the danger not to give notice. So this you correctly say that it's one exemption, but it couldn't it be just a blanket exemption that every case would bring up? I mean, you know, I would leave that to the committee to look at what other states have done and determine if there's a way for the officer to have to demonstrate that they truly need a no knock warrant ban because of, you know, the real threat of danger, who based on who the particular person is named in the warrant. You know, I was sympathetic to the idea that someone also inside might be in danger in a domestic violence situation. But I completely hear you, Senator Bruce. I have trouble with any loopholes that are based solely on officer discretion and their disclosure of their, you know, perception of the situation. It's why I referenced the the Giglio Registry and the Brady file disclosure pieces that were working on in Senate government operations as I've discussed in this committee before an officer's word and credibility is really, really critical to public safety. And, you know, they there should be a very high standard maintain of not promoting an officer or allowing them to take the witness stand if they have demonstrated a lack of credibility and a mischaracterization of information in the past, but that should be their every this exemption. It's the court that makes a determination, not the officer. And maybe I'm missing something here, but the the wording is that the affidavit submitted by the law enforcement officer with the warrant application demonstrates to the satisfaction of the court that identifying the presidency of the officer before entering the premises is likely to create an imminent threat of serious bodily harm to the officer or another person. So it's not the officer that says when they enter the premises that, you know, that they want it do no knock. It's the court has to be satisfied, right? And I think for the court to be satisfied, they should know that they're talking to an officer who has a history of not seeking that every time they go to execute a warrant, but have a history of honesty and accountability and information they present. So yes, agreed. It, you know, it is something that's up to the court to determine not the individual officer. And I would hope the court would take into account serious and significant information about a past record or the history of violence of that person, who the warrant would be executed against. But yes, it does not. I should have emphasized in case it wasn't clear. It doesn't allow the officer to make the determination at the door of the person. They would have to be receiving a no knock warrant ban that the court weighed was was somebody who could cause danger to someone inside. But, you know, an officer who continues to ask for that kind of no knock warrant, I think, hopefully would merit some attention from the court and from the department. And I, I just to close off my my inquiry, I, I see that I guess I still worry that there is in the system itself of its many parts. So among law enforcement, among courts, among juries, I think there has grown up the idea that if an office, if an officer says that they are in fear for their life, or in this case comes forward with a request for a no knock warrant, that we should defer to that request because they are indicating that they're in fear. And if, if we're going to reform the system, it seems we have to push back on all of those levels. But I, I just bring it up as a way of saying that as we go forward, I think that's something for us to keep an eye on is I appreciate that there's only one exemption, but maybe that one can be kept tight. Absolutely. I agree. Mr. Vice Chair. Thank you. Anything else for Senator Romansdale? Thank you so much for taking time away from your other committee. Thank you for, for taking up this issue and giving it a fair hearing. I appreciate it. Thank you. Eric, do you want to walk us through the bill? Sure, sounds good. Good morning again, everybody. This is Eric Spatrick with the Office of Legislative Council here now to walk the committee through S 228 as an act relating to prohibiting no-knock horns. You just heard a pretty good walk through the bill already from Senator Romansdale and I'll be happy to add some background to that as well and some details that might be useful for the committee as you think about the language. First of all, as Senator Romansdale mentioned, there are other states that have this prohibition in statute. In particular, S 228 I was able to look at some of the language in the Virginia statute and the Nevada statute, both of which were passed within the last year. So they're pretty recent. And I also use the Oregon statute. So those were the three that I was looking at and sort of taking concepts and language from those three. The Oregon one has been on the books for much longer, but the Virginia and Nevada ones are quite recent. And there's also a constitutional basis for this. So that in other words, the idea of not going to announce, in other words, and that's a constitutional principle under the Fourth Amendment that law enforcement officers are generally required to not can announce their presidents, sorry, their presidents, when serving a warrant. That also was been around for some time. There's the United States Supreme Court case on that call Wilson v. Arkansas from 1995, which was where that principle really first got announced. But it has a number of exceptions. The constitutional principle does and has a another big difference with relation to the exclusionary role, which I will mention as I go through the bill. So so the bill is broader and offers a broader basis of prohibition on the use of no, no, no horns than the constitutional principle does. So but it's important to know that it's out there and that there is a constitutional basis for this in the Fourth Amendment. So having said that the the perhaps most straightforward part of the bill is the fact that it is just a straightforward prohibition. It's a prohibition on the use of no knock warrants with the one exception that Senator Romhansdale was mentioning. But obviously important to that is that well, what is a no knock warrants? And that's the defined term in the bill also using pretty well known language definition actually is very similar to the definition in the Nevada statute. It means a search warrant authorizing a law enforcement officer to enter a premises without knocking and announcing the officer's presence and purpose prior to entering the premises. So again, that's that knock and announce principle that I was just talking about, which has that constitutional basis. But yeah, so a no knock warrant means one in which they don't knock and announce that the officer doesn't knock and indicate what the what the officer's purposes for being there and announcing the officer's presence. So generally speaking, those types of warrants, no knock warrants are prohibited by the bill. The exception, the language of the exception is actually that the committee has been discussing that a little bit this morning and that's the the situation in which the officer is able to demonstrate to the to the court to the judicial officer that's issuing the warrant that announcing their presence would be likely to create an imminent threat of serious bodily harm to the officer or another person. So as you mentioned, Senator Sears, that's a finding that the court has to make when the application for the warrant is made. And Eric, that language is also based on the Nevada statute, which also requires that the court make the finding. Mr. Chair, yes, if I might. I'm just wondering if and it may be that we want to wait for the witnesses. But can you tell me if now prior to this bill, it seems to me that if you're that if you're looking for a no knock warrant now, you would have to do a version of this, wouldn't you where you'd have to say to the judge we we need to go in for this reason? How does this differ from what is currently done? That's an interesting question. And I'm going to probably not wait into it, because I'm not sure the answer. I think you're right. The practitioners would have a better answer for you on how that happens in practice. I do know that the that is similar to one of the exceptions that exists in the I pulled up the I mentioned that there's a constitutional basis for this. And one of the exceptions in the constitutional principle is similar. And it says what my enforcement officers reasonably fear violence if they provide notice before entry. So that's similar to that. But it doesn't really answer your question about process. You know, how is that something that's sort of articulated in retrospect? Or is it something that has to be demonstrated in the first instance to the court that issues the war? Because the the the question I would have is this seeks to prohibit the use of these warrants. But it says you can use them if you feel as though they would protect against some additional danger. But it seems to me under the current system. That's what we have. So in other words, under the current system, it seems we have a prohibition on them unless you can say that you need one. And a court says, yes, you do. So I maybe maybe I'm wrong. Maybe now they don't need the judicial discretion for the the no knock part of it. But I would imagine they do. So I'll be interested to hear what John Campbell and Matt Valerio and Mike Shirley have to say about that, as well as the state police. Right. So moving on to the second two pieces of the bill, you'll see that in addition to the prohibition on no knock warrants in subdivision A2, there's there's an independent requirements, obviously related and connected that specifically expressly provides that prior to entering the premises to execute a warrant, the law enforcement officers shall provide audible or otherwise appropriate notice of the officer's identity and purpose to the occupant of the premises. So it's a similar concept. It's expressly articulating that the knock and announce requirement is an affirmative obligation for the officer when they arrive to execute the warrant. And lastly, and this is a key difference, sorry, it's good. In that process, though, that gives the the person who has the warrant to serve the person who's being searched where. Being looked at opportunity to flee opportunity to flush, you know, we always see the harrowing going down the toilet or whatever, but an opportunity to get rid of the the evidence. So is that that part of the this process into that is not addressed in the it's not addressed in the bill, but I think that is a concern that is obviously always around this situation. In fact, one of the other exceptions in the federal constitutional principle is that so that the when officers have reason to believe that evidence may be destroyed if they were to provide notice before entry. So that's one of the exceptions in the constitutional situation. That's much more artfully stated than I stated it, but that's I think I'm just reading it either. Thank you, Senator White. So the way I understood it is that it's and we'll hear from others, but it's already hard to get a no knock warrant in Vermont. I don't know about it any place else. And if you can justify to the judiciary getting a no knock warrant, then why would you announce yourself when you get there? Because the point of a no knock warrant is and it shouldn't be used very often. But the point is because the person inside will jump out the back window or as Senator Sear. So I'm I'm really confused here. So well, that can Senator Baruch just wondering if I can maybe I have the same question as Senator White is is section two saying that in the event that you aren't allowed a no knock warrant, then it's restating that you must announce your presence or is it is it in conflict with the first section? I believe my read was the former Senator Baruch. OK. Yeah, so so it's perhaps should be better articulated. So it's so again, and and I might be just reading this a little too closely, but it it seems like what this is doing is art is rearticulating in stronger terms what already exists. And otherwise right now there's a ban on no knock warrants for constitutional reasons unless you can convince a judge that you need one because you're in danger and then you have to announce your presence unless you got one. So I'm I'm not clear yet on what this bill does. That changes the current system. Well, that's a nice segue, but I'm going to respond to one thing that you just said, but it's also section B is a significant change from the from the current system. But prior to that, yes, I mentioned that this constitutional principle is is articulated as when one determines when the court determines whether whether a no knock warrant was appropriate in a given situation or whether a a search and seizure was appropriate. It considers the totality of the circumstances. And it's the courts often say that, for example, the fact that the knock and announce rule, which is the constitutional principle wasn't complied with is a circumstance that that would be considered when determining whether whether the whether the search was reasonable. But it it does not appear to operate as a complete sort of prohibition in the same way that the language of the bill does. The language clearly says you can't use them unless it meets this one exception. The federal principle says it's a totality of the circumstances analysis. And there's a longer list of exceptions. So for those two reasons, I think this is distinct. And affords a a more broad prohibition on the use of no knock warrants than the constitutional provision does. In addition to that, subsection B is very important and that's the exclusionary you see with the we've dealt with the exclusionary rule in this committee many times in the past. And what that means is that in certain circumstances when evidence is obtained through unconstitutional means, the court will exclude the evidence from being able to be used during the criminal court proceeding. That's why it's known as the exclusionary rule. However, under the federal knock and announce rule that we've been talking about that's under the Fourth Amendment to the U.S. Constitution, the courts have quite consistently said the exclusionary rule does not apply. So if the if the knock and announce rule is violated, evidence that is obtained during the search can still be used. Subsection B you'll see takes the opposite approach. This and that's based on the Virginia statute also had an exclusionary rule in statute. And this says information or evidence obtained in violation of subsection A. So in other words, if it was a knock and no knock warrant was used without complying with the requirements of subsection A and evidence was obtained and it can't be used in the criminal proceeding. So that's a procedural distinction between the two approaches. Under the banning. I'm Senator White. So Eric, I'm reading line 19. If the police violate subsection A and retrieving some evidence and in the subsequent divorce proceeding. A wife of someone who was the target of that police. Invasion, if you will. The wife cannot use that evidence in a civil proceeding. The word any court proceeding is just causing me some hiccup here. Right. I understand the expression in the criminal case, but I'm questioning whether you want to go as far as saying any court proceeding. Yes, that's a that's a good point, Senator Benning. And that's a policy choice for the committee. And in the existing Vermont law on the prohibition on law enforcement use of drones. That's where I took any court proceeding from. However, I was just mentioning the Virginia statute and that exclusionary rule applies only can't be admitted into evidence in any prosecution. So policy choice for you guys. But yeah, you might want to if you feel that it there might be other unrelated court proceedings where that evidence should be able to be admitted. You could narrow it down that way, absolutely. Well, if the glove fits, there's one that comes to mind. Well, I was thinking that, you know, if they raided a house where the husband, for instance, was suspected of child pornography and they obtained that evidence in violation of this rule and the wife is now in a court proceeding, if I'm reading this language correctly, she could not use that in a divorce case. And I don't want to go that far. I understand that preventing it from the criminal prosecution, that makes perfect sense. But I'm I'm questioning any. I think, yeah, I that's a good point, Senator. Senator White. So this may not be a question for Eric, but maybe for the people who are testifying later. But I and I know Senator Rom Hinsdale said at the beginning, but I can't remember it right now. How many no not warrants have been used in Vermont, say, in the last 10 years? And what were the and I don't know if we can hear what the circumstances of those were if they were. Warranted, that's a bad word to use right now, but if they were what why they were issued if they were valid. Yeah, valid, valid. Thank you. Better than more. But so I guess that really isn't a question for you as an Eric. No, I don't have that information, but witnesses aren't able to have it. It might be maybe it's something we could ask the court. Maybe they would have a record of that sort of thing. But OK, that's that's all I'm we could if we decide to go further with this, we could certainly have judge so make them and ask him questions like that. I do want to mention just one thing that. I don't know. It's not in this bill, but. Senator Rom Hinsdale mentioned the Brianna Taylor. And that was a case where the police went to the wrong apartment. Right. That doesn't change this. If. If you have a no knock warrant. And you go to the wrong place. That. How does that fit in here? It doesn't fit in does. I don't think so. No, I think that if the warrant was properly issued. Then I don't think it's covered by this language. That may be something to consider, too. And regret, I mean, yeah. OK. Why don't we go to directly to Commissioner yeah, Commissioner Shirley, I'm sorry, I was going to make you secretary. Yes, prior, prior life. Senator White's committees debating that. So. Why not? Why not? I may not be around to see it, but but perhaps. Good morning. Thanks for having me and Mike Shirley, Commissioner of Public Safety. I was planning to just speak for three minutes broadly, but it strikes me as the initial conversations happening that it may make sense to to walk you through how what what the process for warrants is briefly. So take another three or four minutes to do that. The the general overlay on search and seizure, which is governed primarily by the Fourth Amendment of the United States Constitution and Article 11 of the Vermont Constitution, is that you need a warrant in order to search for something, whether that is a person or evidence or fruits of a crime. In the underpinnings, there are that a law enforcement officer may make application usually in Vermont done through a state's attorney. So there's a level of review that happens prior to getting to the court where they must articulate probable cause, prove facts and circumstances that would lead a reasonable and prudent person to believe the facts are accurate that there is evidence of a crime or a person and that those things will be found in the place to be searched. So you have to make the nexus to a crime and then you have to make a nexus to indicate that you've got probable cause to believe that the place you want to search, whether that is a house, a car or any other container briefcase, a wallet, piece of digital media that the that there's evidence of that crime that will be found in that particular place. As Eric indicated, there's an extra layer of information that's required in order to apply to a judge to get a warrant that does not require what is typical, which is that you knock the constitutionally you knock and announce the presence of law enforcement and that you have a warrant and then you go in to execute that warrant. Typically you're waiting for someone to answer the door, but after a reasonable amount of time, you may make a forced entry again, depending on the circumstances. No knock warrants are incredibly rare in Vermont. I should also just take the quick side road to again remind the committee that policing in Vermont bears little, if any, resemblance to what happens in places like Minnesota or Kentucky. They're rarely executed with no knock. And they're when they do occur, and I can only remember a handful occurring in Burlington during 26 or so years there. It is under extremely unusual circumstances where there is a an articulable danger on the other side of that door. And there isn't another mechanism where we can script to get access to that person or that resident in a way that will mitigate that danger. So there's sort of two things that get assessed. Is there another way to do this? Is there a way to wait out going in without a no knock? Because there's an inherent danger not only to the folks on the other side of the door, but to the officers going through that door as well. So if there's not an alternative, is there another way to script it in a way that creates safety? And the no knock really is a last resort. Important to note, however, that from time to time, again, rare. But it does happen a few times a year where you'll go to a door and you'll have, in some cases, you have a warrant to go in and search for a person or for evidence. In other cases, you may be there to conduct an interview. And the circumstances immediately present exigency, which means it's immediately apparent to the officer that you've got to go in and do something in order to prevent harm to another person. And I'll give you a couple of examples from, again, I don't have a tremendous number of them because they don't happen with great frequency, but a couple that I'm familiar with. I was at the back responding to a call in this case, no warrant, back door to a three-story residence, report of a domestic disturbance, not an assault going on. Before we even got to the door, we could hear a woman screaming for her life on the other side of that door. Now, keep in mind, we do not have a warrant, but the warrantless exception to enter that residence under exigent circumstances immediately applies. That door was kicked in and she was rescued from an ongoing assault and suspect actually fled to the third floor. Roof of the complex where he barricaded himself until we were able to successfully get him off the roof. Another example, one in which in a sex crimes unit, there was a warrant. Detectives went to the door immediately, this was not a no-knock warrant, immediately heard a shot fired. We're not in a position to retreat. So the immediate decision was made to mitigate any ongoing threat by going through the door without knocking and announcing. And in that particular case, found the suspect had inflicted a fatal, self-inflicted gunshot one, but that wasn't, of course, known at the time that shot was fired. So I give you all of that background to bring you to this point. Captain Dave Peterson is going to walk you through the frequency and some additional detail around how no-knock warrants and warrants in general are executed. But I guess we're prepared to get into far more nuanced detail around the bill if the committee sees fit to pursue this. Generally, we agree that no-knock warrants should be restricted. They are heavily restricted and very rarely used in Vermont. Now, leave to your discretion whether it makes sense to memorialize that in statute. But I think we're in a... Our primary point is that it's a little more complicated than just saying, hey, these things are dangerous and we should put restrictions on them. It's very difficult to script all the possible iterations of what you might see when you get to a door with or without a search warrant and the types of exigency, danger, barricaded subjects, loss of evidence, et cetera, that could happen. I'm not familiar with any no-knock scenarios where it has been for evidence loss exclusively. Although I know that occasionally happens in federal cases. And the other example is... I would just leave you with before we turn it over to your discretion to Captain Peterson to fill in more detail is occasionally we are looking for suspects who have a long history of violence and are clearly at pose a risk if we were to not going to announce with a warrant to go in and get them. Probably the most top-of-mind regional example of that would be, again, a hypothetical example that if the Danimora suspects who are on the run, if a warrant was needed to go in and get one of them that that would have been an application for a no-knock warrant under those circumstances. And from time to time we run into those here in Vermont as well. But I will reiterate to the committee that the preference in terms of scripting how those operations unfold is to find a way to get to those kinds of dangerous suspects without having to go through a door where you don't know what's on the other side or that person has the opportunity to arm themselves or take some kind of a stand. So even for the law enforcement operations, the no-knock or the go through the door under exigent circumstances is not the preferred way to do it. It's just, unfortunately, the way sometimes we find ourselves stuck with that scenario because we can't control all the circumstances under which we encounter violent individuals. Thank you, Commissioner. Senator Baruch. Thank you, Commissioner Schirling. I'm just wondering when you look at the bill and I'm thinking here about specifically the 8122A1 and A2, to what extent does that seem to you to map the way we currently do it and to what extent does it deviate from the way we currently do it? Generally, it appears more restrictive in some of the language is, I can't exactly tell you where it's pulled from, but using words like imminently, for example, it would be difficult for a court to assess whether absent being at the door with the officer, whether something would be imminent or not. The existing framework is, you have to be able to reasonably articulate the probable cause that absent knocking, there will be an increased threat of injury or serious jeopardy that people going through the door. The example there would be, you have a suspect who says things like, I won't be taken alive. This is going to be the last stand at the OK corral. People say those kinds of things occasionally. And some of them mean them. So long story short, I think if the committee were to want to pursue it, we would we would offer some modified language to try to get to the right balance of safety and and and restriction. Thank you, Mr. Chair. I think Dick may have frozen. So I think Officer Peterson, you're next on the witness list. Good morning, everyone. Thanks for the opportunity to come and speak on this topic, just to introduce myself briefly for those that may not be aware. I've been with the Vermont State Police for over 20 years now. Currently, I serve as the special operations commander in that role. I oversee our specialized units, the traffic safety mission, as well as involved in planning and overseeing special events throughout the state of Vermont. In my career, I had the opportunity to serve across all three divisions within the state police. And my previous assignment was as a professional standards commander for the state police, which had an integral role in policy development within the organization. So that's a little bit of my background. I just want to hit on a couple of points related to this. Overwhelmingly, the Vermont State Police's practice when executing warrants is in a knock and announce fashion. As Commissioner Scherling mentioned, there is a heightened danger when it comes to execution of a no knock warrant. Quite frankly, any search warrant execution bears some level of danger. Commonly, for instance, we see firearms present at a residence as often as we don't. So there are some baseline dangers that come with making any type of enforcement entry into a residence. Making that entry in a no knock fashion only heightens that potential danger by not giving notification to the occupants of who's coming into their house. The commissioner talked about our practices when it comes to applying for in the judicial review of no knock warrant applications. For the Vermont State Police, we rely on articulable case facts which get listed in our affidavit supporting the search warrant application to justify to a judicial review not only at this stage, not only judicial review, but also to the prosecutor's office, a no knock request. Furthermore, we call on our members to continue to assess the circumstances surrounding the investigation to determine even after a no knock warrant would be issued by a judicial review to assess if the execution of the warrant in that fashion is justified. Is it prudent for us to, for the investigative interest to continue to operate at that heightened risk level for the value that would be obtained through executing the warrant in that style? So I did a little bit of limited research through some of our digital files to see what I could find related to numbers of warrants in a no knock fashion. So my research dated back to the beginning of 2017 and goes through the end of 2021. In that time, I was able to identify two or three instances where the Vermont State Police had obtained a judicially authorized no knock warrant and actually executed the warrant in that fashion, meaning a non-announcement prior to making entry into the premises. I was able to also identify two instances where the Vermont State Police supported other agencies that had applied for and been granted a warrant with a no knock exception. And I was further able to identify instances where a no knock warrant was authorized. However, the warrant was ultimately executed in a knock and announce fashion. Obviously this research was done in a short setting. I can't say that it's comprehensive, but hopefully it provides some sort of quantitative information as to the commonality of this in the state of Vermont. Oh, it's very useful. Could you just say another word about the other agencies who sought and obtained no knock warrants? Would that be somebody like DCF or? Those would be other law enforcement agencies. So municipal agencies or sheriff departments or something like that. I see, okay. Senator White. So I wonder if you, thank you for the information. I wonder if you have any ability to tell us some of the circumstances around those two or three that were actually executed if they're, I'm trying to wrap my head around when it would seem necessary, because that's maybe three and five years by the state police and maybe another two or three in that period of time by other agencies. So it isn't very many, but could you give us some idea of the circumstances? Yeah, just to be clear Senator White, what I'm able to provide is apparent VSP involvement in these types of execution. It is in theory possible that other agencies are obtaining these and executing them without the involvement of the state police. But I would say that there's a fair amount of resource sharing that takes place across a law enforcement community in the state of Vermont. So I do think this is somewhat informative at least. In regards to your question about the actual instances of those two or three, I'd have to do a little bit more digging. I can certainly probably provide some information about what prompted the request to go through and what information was presented in this type of investigation, if that would be helpful. No, but they, it probably doesn't, again, I was gonna say warrant, but justify additional research, but they were granted by the court did see that there was enough reason there to grant them. That's correct. Okay, yeah, thank you. Other questions for Captain Peterson. Thank you, Captain, we appreciate it. We'll move to John Campbell for the state's attorneys. John, are you with us? Yes, I am, a little bit under the weather, but I'm here. So that's why I got my old DJ voice back, I guess. Senator Sears is, I think, internet issues. Oh, he's coming in on his iPad, so. There he is. Okay, so. Feel free, John. Okay, John Campbell, executive director of the state's attorneys and sheriffs here to testify. Actually, I'm here because Evan, Maiden who would have been here is over in the house test flying in another bill there. So I'm sort of filling in, but let me just start by saying, I think that really, and this has been said already, already is that the. Go ahead, John, I think Dick just had two devices running. You're correct, and I don't know how long it'll last. Evidently, every time the wind blows, my internet goes out. That's what I thought that Governor Shumlin said that we have perfect internet all throughout the entire state. Mission accomplished. Anyway, as has been said, one of the things really to know is that these are extremely infraquent. And in fact, I had asked our state's attorneys and we have a lot of newer state attorneys, but there's not, I still have not found one that they have heard that maybe one or two had been used, but not that the ones at least that have gotten back to me that they did not authorize or ask or sign on with the law enforcement agency that was asking for a no knock type of warrant. And it's also clear too that these are not, these can be dangerous situations when that is used. But I think it was interesting what Commissioner Sherling said is that Vermont police situations and what happens here is very different than what happens around the country. And that is absolutely true. I think we have a very progressive law enforcement community and the only time that you'll see, I believe that these occurring is when there are those exited circumstances. So in reviewing the bill, the concern that I have right off again, I understand that the purpose is the language that we're trying to bring in here, I think it is confusing. I think that this is certainly one that would be litigated. I think that Senator Benning pointed out a very good point is that if the evidence is gonna be suppressed or excluded from any type of court proceeding, this would eliminate the evidence being used in any court, not just in the criminal court or this criminal prosecution. The one thing that was discussed in my office was that the biggest concerns they often have beside the first one is of course of emitted bodily injury to a person. If there's a chance of somebody being hurt, then you wanna be able to get in there and say to that person. But the destruction of evidence is also important, especially in the child pornography cases. Evan, who actually used to prosecute those had said that it's frequent that you have one of these people who are very sophisticated when it comes to child porn, they have the ability with just a couple of hits of the computer switches or a computer buttons to destroy the evidence. And of course, these cases are very difficult to begin with and if you lose the evidence, it's gonna be very problematic, obviously. And there are children, the children of the victims here. So there's a concern that this may not, this may extend to causing problems with trying to prevent people from destruction of evidence. Again, I think if the committee is gonna go forward, what I'd like to do is to have a couple of the state's attorneys who actually have participated in that to come in and testify and let you know, give you more specifics. I think it would be problematic. And I think maybe the captain just mentioned this as far as that I'm looking at the statute over here, is that for the court to make the determination of like that, whether there's the imminent threat, that's gonna be pretty tough. A call to be made back in the courtroom or in his chambers or our changers because a lot of times the most times you're not gonna know until you get to the scene or unless you have had some knowledge about the person like this that had weapons. And those would be articulated anyway in the initial warrant. But as far as if you take everything away from the police officer on the scene, then I think that might be causing, that would cause some serious issues. But so overall, I think that there's an understanding of why this would you'd want to prevent people from just busting in people's houses, but that's what the fourth amendment's all about is that there's no one who should be subject to unreasonable search and seizure. And in the warrantless in these situations where they're getting the warrant, they're presenting the information to the courts and you would like to be able to prevent any possibility of an injury to anybody, but especially to somebody who might find themselves in a place that innocently in a location where they do execute one of these warrants. So, but I think you could work through that to get the language that would protect the exceptions we needed and yet still deal with the issue, get the issue. One of the quick one is that one of the terms here is that I believe you put that, our existing exception is for bodily harm, imminent bodily harm and I believe here in this it puts it as serious bodily injury, which is defined differently. And so it would not take into consideration, I don't think certain cases, especially in a domestic violence situations where the harm may not be rise to the level of serious bodily injury, which would be death or a major disfigurement, but it still be a bodily harm that would be something you'd want to prevent. So it's a little things like that that I think have to be worked through if you're going to go forward. Thanks, John, I just wonder Bruce, I'd prefer that you continue on because I may lose internet at any time. Okay, sure. Any questions for John Campbell? All right, thanks John. Matt Valerio, defender general. Welcome, Matt. Thanks for having me. This is, I'm always heartened when I can talk about a particular area of the law that I had a lot of experience with when I was in private practice and interestingly enough, I disagree with almost nothing that the prior witnesses have said about this subject. I've been practicing law for about 33, 34 years and in Vermont, I never, and I did a lot of drug defense when I was in private practice and obviously oversee what goes on in the appellate division of the Defender General's Office and I had never seen a no-knock warrant in all of those years in Vermont. This issue of no-knock warrants is a big issue nationally. This is a huge concern and a lot of it arises out of prosecution for drug offenses. They tend, there's oftentimes a racial bias and a targeting of indigent folks and people of color in other states. We just don't see these being used in Vermont as a practical matter and I guess the only part that I would, and I wanna go through this a little bit, but what I don't want you to do and I think that John Campbell was sort of conflating a bit of an issue here. There's a difference between exigence and knock and announce when it comes to executing warrants and even getting warrants and I think the concerns that John Campbell have regarding this really have to do with the issue of exigency. I don't see this bill as taking away an officer's right to respond to exigent circumstances at all. This is more talking about what rights do the officers have to get a warrant in advance. Now we have to remember that Vermont's constitution in article 11 of chapter one provides more protections regarding the use of warrants to the public than the Fourth Amendment does under the US Constitution. And as a result, most of the search and seizure law in Vermont, if not all of it, is developed under our Vermont Constitution, article 11, as opposed to article four or the Fourth Amendment. And I'm suspecting that those protections that we have under Vermont, the Vermont Constitution are part of what prevent the use of no knock warrants in Vermont. Also, it's just a culture that we have in Vermont that these tend not to be necessary. So, I don't see no knock warrants in Vermont as being a particular problem, but I do understand those who support eliminating no knock warrants because of what they see nationally and the concerns that they have with some of the abuses that have taken place and the mistakes that have taken place, the loss of life, both for law enforcement and for the general public. And so I understand where this is coming from. In my review of the case law, you probably wouldn't be surprised that there's not a lot of case law in Vermont on no knock warrants because there aren't very many of them. And usually when there is, one of the better cases that I came across was a case called State versus Ogden. It's a 1993 case in Vermont. I still don't think that's a particularly old case, but a lot of the lawyers who worked for me would disagree. And that's at 161 Vermont, 336, again, a 1993 case. And it deals with the issues of no knock warrants and the defendant in that case alleged on appeal that there was an effective, effectively a no knock warrant because when the officers knocked, they didn't give him time to get to the door because he was sleeping. And after they knocked and announced, they came in and then there was a cultivation issue, I guess, involving pot. And that was what they were looking for. The thing that is good about this case is it sets forth the knock and announce issues that you see. Nationally, you see these cases where Rivera versus United States in 1991 Second Circuit case, if you don't know, Vermont is in the Second Circuit. And it indicated on a federal level that failure to knock and announce was acceptable, only were the officers had an objective, reasonable belief that there exists an imminent danger of bodily harm to persons inside or the destruction of critical evidence. But again, this is an exigency that would exclude the exclude or excuse, I'm sorry, the compliance with a knock and announce requirement. So under Rivera, it talks about a knock and announce requirement. Part of the argument that was going on in State versus Ogden is whether or not there even was a knock and announce requirement under Vermont law. And because they found that in that case the police did knock and announce even if the guy was asleep and didn't hear it, they never had to get to the issue of whether there even was a knock and announce requirement under Vermont law. But in looking at other case law, it did seem to suggest, of course, and this is something that's been litigated all over the country where these things are very common that exigency excludes the requirement to knock and announce. And usually it is because there is an imminent danger bodily harm to persons inside or destruction of critical evidence. And that to me is effectively the standard that you would have to apply to get a no knock warrant in the first instance. You would actually be able to articulate what these, you know, that there would be bodily harm or destruction of criminal evidence. The interesting thing about Vermont is it's governed by Rule 41 regarding application for warrants. So I want to go, I want to get back to the bill itself. I keep having things popping up on my screen here. Sorry about that. There it is. Under 8122, the no knock warrants, unless the affidavit submitted by, sorry, law enforcement shall not seek execute or participate in the execution of a no knock warrant. Unless the affidavit submitted by law enforcement demonstrates. And now I'm going to point out some problematic language from my point of view to the satisfaction of the court. Legally, I don't know what that means. You know, usually it says by clear and convincing evidence or by a preponderance of the evidence. The rule of law, the rule of law, the rule talks about by substantial evidence. I think that that needs to be cleaned up because if law to the satisfaction of the court doesn't really mean anything, it would have to me, if this was going to go forward, it would need to say something about what the standard of proof is. I would suggest that it mirror what rule 41 says, which is by substantial evidence or that you put in a burden of proof that is consistent with something that lawyers understand, clear and convincing evidence, substantive proponents of the evidence, whatever it is, but set to the satisfaction of the court doesn't really cut it from a legal standpoint. And then it goes on to say that before entering the premises is likely to create an imminent threat of serious bodily harm to the author or another person. I didn't know who to another person was referring to. These no-knock warrants when they are executed are dangerous to everybody. I know that law enforcement doesn't like to execute no-knock warrants because of the danger they see to themselves. They worry about also though the danger to third, kind of innocent third parties who might be in the premises, not necessarily in the end, and I'm sure the targets, even of the criminal investigation, there's a lot of liability that goes along with no-knock warrants. And for the most part, these can be avoided by just doing your normal-knock-and-announce warrants, and then if you get to the premises and there's an exigence where you perceive somebody who is in danger or you perceive that evidence is being destroyed as you're knocking on the door, then or you're getting ready to knock on the door, then you can go in and deal with it that way. I also picked up on the issue that Senator Benning did regarding in any court proceeding under B. I generally, these no-knock warrants are justified to protect law enforcement where there's a perceived threat. And these, they tend to be in kind of higher stakes, drug cases or kidnapping situations or that sort of thing, and that's reflected in Rule 41 of the rules of criminal procedure. These are a little bit more common under federal law enforcement situations, but of course anything that we pass that here at the state level would not impact those cases. I do think that by passing a bill that talks about these no-knock warrants being disfavored, that it is an important symbolic statement by Vermont that this isn't the type of enforcement that we want to see in Vermont, and that there are other ways to preserve evidence and the safety of bystanders without using no-knock warrants. I would suggest that probably in Vermont, many people have our armed, they have hunting rifles, they have firearms and the like, and at least it may not be as good for preserving evidence, but it's probably safer for law enforcement and everybody else. If someone comes to my house or I'm suggesting perhaps other people's houses in the middle of the night or and doesn't knock on the door and barges in, that probably increases their likelihood of being shot by a homeowner more than knocking and announcing who's there. That's, I think, why we don't use them in Vermont. It's a dangerous, dangerous situation. It is a tool that is available. And on the whole, and this is, I cannot disagree that it's a good statement to make that these are disfavored. However, I do think that the case law that is out there regarding exigence as an option to overcome a knock requirement is something that's pretty well understood and the standard that a failure to knock and announce is only acceptable where officers have a reasonable belief objectively that there's imminent danger of bodily harm to persons inside or the destruction of critical evidence is something that the system understands. You know, the system understands and I'm always leery of tinkering with something that the system understands and seems to be getting right. I do think, however, that in recognition of the abuses that have gone on elsewhere, that is not a bad thing to put something forward that recognizes those problems even if we aren't seeing them in Vermont. Thanks, Matt. You anticipated my question with those last few lines. So it's your thinking that even though they're rare and even though the system works fairly well with them that you would not to put words in your mouth, you said you could see why we would put forward a bill that would speak to those abuses we've seen elsewhere. Yes. Okay. Other questions for Matt, Senator White. Oh, I'm a little bit concerned, Matt, with actually with your last statement, although Senator Baruth just asked you about that. But I have no interest actually in making statements because there are things happening in other places. And I'm concerned that if we did this, what we would be doing is tinkering with a system that, as you say, works and how we would put language in here that would actually exactly reflect what is currently happening and not upset that apple card. Matt, you wanna answer that? No, if you have language that would exactly do that because this language doesn't. So if you have language that would exactly do that, then I'd be listening to it. I think that I would leave that to the proponents of the bill. I don't wanna put, you know, I could draft all kinds of things, but the folks who are trying to get at the issue, I'll leave that to Senator Ram and others. Okay, other questions for Matt Valerio? Matt, thank you for joining us. I always appreciate your insights. Thank you. So committee and remaining witnesses that are with us, we're at the end of our witness list. I know that Senator Sears wants the committee to discuss this. Obviously we can't do that without him present. So unless there's a strenuous objection, I suggest that we adjourn the committee, go off YouTube. And Peggy, can you take us off you?


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