As an unruly crowd besieged Minneapolis' Third Precinct headquarters last summer, officers on the other side of the city destroyed a cache of documents, including inactive case files, search warrants and records of confidential informants.
In a private police report, Minneapolis officer Logan Johansson disclosed that he and other investigators in the Second Precinct to the northeast decided to destroy the documents shortly after May 28 "in direct response to the abandonment of the Third Police Precinct in Minneapolis by city leadership."
If the Second Precinct fell, this sensitive information could wind up in the wrong hands, Johansson wrote. "The data contained in these files could put the lives of CIs or various other cooperating defendants at risk."
The decision to destroy the files is now at the center of a legal battle playing out in Hennepin County courts.
Public defender Elizabeth Karp says the officers acted without oversight and against policy when they destroyed critical evidence in the charges against her client, 36-year-old Walter Power. Power is charged with a felony for allegedly selling drugs. Police collected evidence against him based on search warrants that were destroyed by the officers and through cellphone data that has since been lost, according to Karp's motions that ask the judge to throw out the case.
Karp, who declined to comment beyond court documents, also asked Judge Todd Fellman to issue an order prohibiting police from "destroying or misplacing any more evidence related to this case."
"There is nothing to suggest the unrest that Minneapolis is experiencing will end any time soon," Karp wrote in court documents. "As such, this court must ensure the integrity of the judicial system remains intact and that all evidence used to build a criminal case ... is preserved."
Asked for comment Wednesday, Minneapolis police spokesman John Elder said the department is investigating. "We are conducting an internal investigation to understand what happened at the Second Precinct, how the decisions were made and whether there were broader issues with documents, records or files stored in our facilities during the riots," said Elder. "Any disciplinary decisions would be made through the normal process after an investigation."
Tara Niebeling, a spokeswoman for Mayor Jacob Frey's office, said he "strongly supports MPD's decision to conduct a thorough investigation into this matter and is committed to full transparency throughout the process."
Fellman has set a hearing on the motions for July 27.
The rioters never came for the Second Precinct that week. In the days following Floyd's killing, most violence was concentrated on the Third Precinct — across the Mississippi River and more than 5 miles south of the Second Precinct — and the Lake Street area and Fifth Precinct.
Some who breached the Third Precinct did steal items from the building. Police arrested Branden Michael Wolfe on June 3, 2020, wearing a police vest, duty belt and carrying a tactical baton. Wolfe later was convicted of helping to set the fire in the building, sentenced to more than three years in federal prison and ordered to help pay $12 million in restitution.
A month earlier on April 28, Minneapolis police executed a no-knock search warrant of Power's rented duplex unit on NE. California Street. They found almost 3,000 oxycodone doses, along with MDMA and marijuana, according to a criminal complaint. Power was charged with first-degree drug sale on May 4.
In order to get a judge to sign off on the search, the officers had cited evidence they'd already gathered through separate warrants to search other residences, cellphones and to collect GPS data. For the GPS data, the officers issued a warrant to Sprint, which sent updates on Power's longitude and latitude to the investigators.
In March, in a confidential document that since has been published as an exhibit in the Power case, Johansson informed the courts the warrants were among the documents the officers destroyed.
Two months later, when Hennepin County prosecutors asked for the GPS data, Johansson reported those records also were gone. The unit he worked for at the time has since been disbanded to "augment an ever-dwindling number of patrol officers."
An unidentified investigator who authorized them to destroy the files and had access to the GPS data is no longer with the department and has since left the state, wrote Johansson. "I no longer have access to [the data]." He included a list of longitude and latitude points in his report but acknowledged this was only what he could find in his e-mail, and it did "not necessarily represent the complete amount of data received initially from Sprint."
In court motions, Karp said courts have a duty to preserve warrants used to gather evidence. Since "much, if not all the facts relied upon" to search Power's home were destroyed, he can't know how the warrants were obtained or if the underlying searches were lawfully conducted, argued Karp. As a result, Power can't defend himself on the basis of his Fourth Amendment right to remain free from illegal search and seizure, she said.
"The main check on a violation of the Fourth Amendment is a defendant's right to challenge an unlawful search," wrote Karp. "Such a guarantee means nothing if the state is simply allowed to destroy the evidence."
Karp also asked the courts to identify an informant who helped lead police to Power.
Prosecutors are preparing to argue against Karp's motions in writing and in front of the judge later this month, said Lacey Severins, speaking for the Hennepin County Attorney's Office.
"While some information the defendant has requested may no longer be available, there are factual and legal matters in dispute over whether such evidence is material to the issues in this prosecution, and whether any actions taken by the police were done deliberately to adversely affect this defendant," said Severins in a statement.
Acting in bad faith?
Whether the judge agrees with Karp or the prosecution likely will depend on if the lost evidence could help prove Power's innocence and whether police acted in bad faith, said Christopher Slobogin, director of Vanderbilt Law School's criminal justice program.
Slobogin said the evidence may be relevant to Power's innocence because it goes to whether police violated his constitutional rights to be free from an illegal search. As far as good or bad faith, it depends on whether the judge believes Johansson, he said.
Karp argues police acted in bad faith because they destroyed the files with no order to do so from superiors.
Slobogin said that if he were the judge, he'd want to know why police couldn't remove the files from the precinct instead of destroying them.
"This is a very unusual situation, where the records are destroyed out of fear that outside parties could get access to them," said Slobogin.
Andy Mannix • 612-673-4036