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The proof that police attempted to criminalize Botham Shem Jean

The Botham Jean killing shouldn’t have happened, but it did. The Dallas Police Department (DPD) began the investigation and then turned it over to the Texas Rangers (Rangers). The Main Stream Media (MSM) has tried to create a controversy regarding the investigation thus far and the search warrant. The attorney representing the family characterized the search warrant as a “drug search warrant.” He is either mistaken or an outright liar. I have drafted or reviewed approximately 1000 search warrant applications in Texas and Federal courts. Most of what I have to say is easily verified by referring to the Texas Code of Criminal Procedure (CCP) or any text discussing the rules of search and seizure either warrantless or under warrant. Here is the affidavit in support of the search warrant. Read it and then I’ll tell you what I know.

AFFIDAVIT FOR EVIDENTIARY SEARCH WARRANT STATE OF TEXAS COUNTY OF Dallas 1. There is in Dallas County, Texas, a suspected place and premises described and located as follows: Residential apartment located. at 1210 South Lamar Street, apartment number 1478, Dallas, Dallas County, Texas 75215. This residence is located inside an apartment complex named  Southside Flats. The apartment is on the fourth floor, with the front doorway situated in an interior hallway. Apartment door number 1478 is illuminated in. metal with several  additional lights in a vertical line to the left if facing the front door. The front door and door frame are olive in color.  There is at said suspected place and premises the following item(s) constituting evidence of a criminal offense: Fired Cartridge Casings, fired projectiles, firearms, ballistic vest, keys, trace evidence such as .blood, video surveillance system any’ contraband, such as narcotics, and other items that may have been used in criminal offenses are located in the above-described residence.
 Said suspected place and premises oversee and controlled by the following person: Botham Shem Jean. It is the belief of Affiant, and she hereby charges and accuses that: Within the residence located at 1210 South Lamar Street, apartment number 1478 in Dallas, Dallas County, Texas 75215 are fired cartridge casings, fired projectiles, firearms, ballistic vest, keys, trace evidence such as blood, video surveillance system, any contraband, such as narcotics, and other items that may have been used in criminal offense are located in the above-described residence.
These items may be of evidentiary value in the Officer Involved Shooting that occurred on September 6, 2018, at about 10:00 pm at 1210 South Lamar Street, apartment 1478, Dallas, Dallas County, Texas. This incident is being documented on [miles Police Department case number 198543 2018}. During this incident, an off-duty Dallas Police Officer, who was wearing a full Dallas Police uniform, was attempting to enter apartment number 1478, with a set of keys. An unknown male, inside the apartment, confronted the officer at the door. A neighbor stated he heard an exchange of words, immediately followed by at least two gunshots. The officer possibly believed the subject was an intruder, drew her service weapon and fired at the subject, striking him in the chest. The subject, who is identified as Botham Shem Jean, was transported to Baylor Hospital where he was pronounced deceased.
Detective Angela Arredondo contacted Botham Jean?s sister, Allisa Findley, and she confirmed that Subject Jean is the sole occupant of the apartment residence located at 1210 South Lamar Street, apartment number 1478. An Accurint Report for Law Enforcement lists Subject Jean?s home address as 1210 South Lamar Street, apartment number 1478 Affidavit for Evidentiary Search Warrant Page 1

in Dallas, Dallas–County, Texas. The Affiant, Detective Angela Arredondo, #7651, has reason to believe that fired Cartridge caSings, fired projectiles, firearms, ballistic vest, keys, trace evidence such as blood, ‘video Surveillance system, any contraband, such as narcotics, and other items that may ‘have been used in criminal offenses are in the above-described residence.
The crime scene has been secured and maintained as such by Dallas Police-Officers. 5. Affiant has probable cause for said belief by reason of the following facts:   Angela E. Arredondo, the Affiant, have been employed as a Police Officer with the Dallas Police Department for 20 years and I am currently assigned to the Special-Investigations Unit. On September’ 6, 2018, I, the Affiant, personally assisted in the investigation of the Officer Involved Shooting of Botham Shem Jean. Detective Angela Arredondo contacted Botham Jean’s sister, Allisa Findley, and she confirmed that Subject Jean is the sole occupant of the apartment residence located at 1210 South Lamar Street, apartment number 1478. An Accurint Report for Law Enforcement lists Mr.Jean’s home address as 1210 South Lamar Street, apartment number 1478, in Dallas, Dallas County, Texas. The Affiant, DetectiVe Angela Arredondo, #7651, has reason to believe that Fired Cartridge casings, fired projectiles, firearms, ballistic vest, keys, trace evidence such as blood, video surveillance system, any Contraband, such as narcotics, and other items that may have been used in criminal offenses are in the above-described residence. WHEREFORE, Affiant requests that the Court issue such a search warrant.

Dallas Police

The search conducted as a result of the Botham Jean shooting triggers rules governing searches without warrant and under warrant. The Fourth Amendment of the United States Constitution  sets out the basic requirements:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The key words are “unreasonable searches and seizures,” “probable cause,” “particularly describing the place, and person or things to be seized.” People like to bandy about the term, “illegal search and seizure.” A search and seizure becomes illegal once it is determined that it is unreasonable. U.S. Courts at both the State and Federal level have determined that certain searches are not unreasonable, provided the searches meet certain criteria.

In the Botham Jean incident the DPD responded to a shooting that took place in his apartment. The person making the report was a police officer. The police may enter a premises without warrant due an emergency. A person bleeding out, on the living room floor, constitutes such an emergency. DPD officers had a right to be on the premises. A second warrantless search concept is called the “plain view doctrine.” Once it is established that the police have a legal right to be there, then anything that they see can be seized. It must be “immediately apparent” that the item is evidence related to criminal conduct.

There is one other issue that supports a police search of the premises. In order for evidence to be suppressed, somebody with standing to contest the search has to object. The only person with the ability to object was Botham Jean. He is unavailable for comment. As a practical matter, if the evidence was illegally obtained, then it could not be used against him. The evidence can be used against Guyger because she has no standing to object to the search of Jean’s apartment. DPD didn’t need a search warrant to search Jean’s apartment.

Old time cops refer to this as the “crime scene exception.” It works sometimes, but not for the reason they think. The armed robber cannot object to the police seizure of the video tape at the 7-11 he just robbed. The clerk or owner can object, but they aren’t being charged.

It can get more complicated at a residence. Can an overnight guest object? How about an occasional resident? A search warrant overcomes those objections. In issuing a search warrant a neutral detached  magistrate has determined that probable cause exists to search the described place and the items to be seized have been described with sufficient detail.

Searches under warrant are governed by Chapter 18 of the Texas Code of Criminal Procedure (CCP). Section 18.01 describes the requirements for a search warrant. Chapter 18.02 describes the grounds for issuance. 

The DPD investigator relied on 18.02 (10) typically called a “mere evidence” or evidentiary search warrant.” A drug search warrant is covered by 18.02 (7). The affiant described what the police  were looking for: 

The Affiant, DetectiVe Angela Arredondo, #7651, has reason to believe that Fired Cartridge casings, fired projectiles, firearms, ballistic vest, keys, trace evidence such as blood, video surveillance system, any Contraband, such as narcotics, and other items that may have been used in criminal offenses are in the above-described residence.

Drugs were just one item on the list. There is some gamesmanship going on here. Police, in conducting a search can look anywhere that the items named can be found. If the police were looking for a side-by-side refrigerator, they can look anywhere that might conceal a side-by-side refrigerator. That means they can not look under the bathroom sink or in the linen closet, both being to small to conceal the item. Drugs can be hidden anywhere. I suspect that the marijuana and paraphernalia were in plain view, so the police used what they had. The statement (below) that the police obtained a drug search warrant is false.

After the shooting, a search warrant was issued to search Jean’s home for narcotics. 

KXAS-TV

Mr. Barnes objects to Botham Jean’s apartment being characterized as a place of suspected criminal activity.  According to his Bio, Mr. Barnes is from Atlanta. I know that Atlanta is a tough town. I don’t know what  neighborhood Mr Barnes habituates. However, I think most folks can agree that the area surrounding a rapidly cooling corpse with two bullet holes in his chest, is a crime scene.

 The warrant states in plain language that the apartment of Botham Shem Jean was being treated as a place of suspected criminal activity.

Mo Barnes, Rolling Out

 There is one legal fiction that is confusing and I will admit to it being incongruous to me. CCP 18.01 (f) sets out the requirements for establishing probable cause. In my day, among those requirements was that a specific person is in charge of the place and items to be seized. It appears that now under CCP 18.01 (f) it is sufficient to specify that the person was a victim.

Said suspected place and premises oversee and controlled by the following person: Botham Shem Jean. 

At the time the warrant was written, Mr. Jean no longer controlled anything. He could have and should have been described as the victim. I don’t find this to be fatal to the affidavit or Mr. Jean’s reputation.

The press is making a big deal that multiple search warrants have been issued but only one has been revealed. Again the CCP controls. Chapter 18.01 (b) states that the affidavit is public record, if executed. An indication that a warrant has been executed is the “return.” An exception to the public record is allowed under CCP 18.011. A search warrant application may be sealed upon specific application by the state.

There are number of things at play here. First, we have two agencies DPD and the Rangers conducting the investigation. It may be that the Rangers applied for their search warrant applications to be sealed. Second, the original search warrant allowed for the seizure of Mr. Jean’s computer.  I suspect they also got his cellphone. A separate warrant is required to access the computer, yet another to access the cloud, and possibly a third to access information held by the Internet service provider. Duplicate the process for the cellphone. It could be months before the information is forthcoming.

I don’t know whether reporters are stupid or intentionally misleading in their narrative. I do know that they are not serving the best interests of the public. There is information available to them that would serve to explain how the process works, but that requires effort.

The final shot that the press takes issue with is the delay in arresting Officer Guyger. If I was in charge of the investigation, I probably wouldn’t have made an arrest. I am not sure Manslaughter is the best charge. I would want additional forensics prior to charging the officer. I am not giving her a bye.

Homicide is the killing of an person by a person. A person died from a shark attack in Wellfleet, Massachusetts. That is not a homicide, a person died but the shark is not a person. To the shark it was just lunch.

Most of the time homicides (murders) are pretty clear cut. Offing a guy for a fifty dollar crack debt, a romantic rival, or somebody that disrespected the offender may be justified in some quarters. Such acts do not fulfill the legal requirements to be considered justified.

Not all homicides are criminal. Botham Jean was the victim of a homicide. The question is, was it a homicide that is legally justified? An officer seemingly acting under color of law, is likely to claim legal justification. Given the circumstances, in this case, I have my doubts. In investigating a police shooting, the investigator has to overcome the legal justification defense. There is a lot of work on this investigation that still needs to be done.

I am sure by now that the Texas Rangers have located all the establishments within a ten mile radius of the crime scene that offer free coffee and half-price meals. It remains to be seen if they can find justice for Botham Jean.