Denver Case Highlights the Potentially Deadly Hazards of Police Raids Based on Secondhand Information

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09-06-2025

On a Friday night in March 2023, Sean Horan called 911 to report that Michael Mendenhall, who runs a staffing agency out of a converted townhouse on Blake Street in Denver, had threatened him with a baseball bat. Based on nothing more than Horan's one-sided account of a confrontation at Mendenhall's townhouse, police officers arrested Mendenhall for felony menacing. To support that charge, Detective Nicholas Rocco-McKeel obtained a search warrant by repeating what another officer told him Horan had said. During the ensuing search of the townhouse, police seized the baseball bat as evidence.
Prosecutors dropped the case against Mendenhall less than a week later, and it is not hard to see why: Horan's account of what had happened was inconsistent and improbable. But police never returned the bat, which was a valuable collector's item because it was signed by players at the 2021 Major League Baseball All-Star Game in Denver. That purloined bat is at the center of a case that aims to overturn a controversial 1960 Supreme Court precedent allowing home searches based on hearsay. Mendenhall argues that the warrant authorizing the search of his property was invalid under the Fourth Amendment because it relied on thirdhand information rather than Rocco-McKeel's personal knowledge.
"The Fourth Amendment must be enforced in its entirety," says Anya Bidwell, a senior attorney at the Institute for Justice, which represents Mendenhall. Although "the Fourth Amendment bans reliance on second-hand information," she says, "the courts have read that requirement out of the Constitution. We're fighting to bring back the original understanding of this very important protection."
Issuing a warrant "is no trivial thing," a brief that Mendenhall recently filed with the U.S. Court of Appeals for the 10th Circuit notes. "Warrants authorize armed government agents to seize persons or comb through their most private spaces. Warrants authorize the government to employ violence to accomplish these goals. There is hardly ever a situation in which the individual is more powerless before the State than when its agents arrive armed with a warrant." Although no one was injured in Mendenhall's case, briefs supporting his appeal note that the consequences of hearsay-based warrants can be lethal, as illustrated by the 2020 death of Breonna Taylor.
The circumstances that led to the search of Mendenhall's townhouse suggest the hazards of allowing police invasions of private property based on secondhand information. Around 10 p.m. on March 10, 2023, according to Mendenhall's brief, he was "relaxing after work at the townhouse with a friend when he heard women screaming and a man yelling just outside his front door." Concerned for the women's safety, Mendenhall grabbed his commemorative bat and "opened the door to investigate." He saw "a strange and shabbily dressed man," later identified as Horan, sitting on the stoop of the townhouse with two dogs and "yelling at a group of women."
When Mendenhall asked Horan to leave, the brief says, Horan "refused and threatened to call the police." He followed through on that threat after Mendenhall went back inside. When four police officers arrived at the townhouse around 11 p.m., Horan, who lived about 50 miles away, told them he was taking a walk when he stopped to rest on Mendenhall's stoop. Although Horan was carrying a gun, he said he had felt threatened by Mendenhall and wanted to press charges.
"Rather than asking follow-up or clarifying questions," Mendenhall's brief says, "the officers went to Mr. Mendenhall's townhouse and arrested him as soon as he opened the door, securing him in handcuffs and taking him to a squad car across the street." The officers called Rocco-McKeel, telling him what Horan had said. Without talking to Mendenhall, the detective regurgitated that account in an affidavit that he submitted to Denver County Court Judge Renee A. Goble, who issued a search warrant at 12:34 a.m. on March 11.
Horan never testified before Goble, submitted an affidavit, or otherwise swore to the facts underlying the allegations against Mendenhall. And Rocco-McKeel, who wrote the affidavit, "neither observed any of the relevant facts nor personally spoke to Mr. Horan," the 10th Circuit brief notes. He "merely repeated what another officer said Mr. Horan had said."
All of that was fine under the Denver Police Department's operations manual, which says officers may "rely upon information received through an informant, rather than upon direct observation, to show probable cause" for a search warrant. It was also fine under Jones v. United States, a 1960 case in which the Supreme Court approved the search of an apartment based on an unnamed informant's report that the tenant was involved in drug dealing.
That decision, the Institute for Justice argues, is inconsistent with the text and history of the Fourth Amendment, which says "no warrants shall issue, but upon probable cause, supported by oath or affirmation." Until Jones, that requirement generally was understood to mean that warrants could be issued only based on the affiant's firsthand knowledge of the relevant facts, as opposed to the unsworn claims of another person who was never subjected to judicial scrutiny. That understanding, Mendenhall's brief argues, jibes with British and American common law, was reflected in a long series of court decisions, and "continued virtually without question for over 160 years."
In Jones, however, the Supreme Court disregarded the Fourth Amendment's Oath or Affirmation Clause, focusing instead on what was required to show probable cause. That decision "addressed neither the constitutional text nor the overwhelming weight of authority," Mendenhall's brief says. "Under a proper interpretation of the Fourth Amendment, Denver's express policy of permitting warrants to be issued without oath or affirmation supporting probable cause is unconstitutional. But for Jones, Denver would be liable to Mr. Mendenhall for its unreasonable search and seizure of his property."
In February, U.S. District Judge Philip Brimmer predictably concluded that Jones barred Mendenhall's civil rights lawsuit against the city and county of Denver. Mendenhall's lawyers acknowledge that the 10th Circuit likewise is bound by that precedent.
Mendenhall "brought this case to overturn Jones and reestablish the vital role that the Oath or Affirmation Clause was intended to play in protecting the rights enshrined in our Constitution," the Institute for Justice says. "He concedes that this Court is bound by Jones and must affirm the district court's decision granting Denver's motion to dismiss. Mr. Mendenhall files this brief, however, both to preserve this issue for further review by the U.S. Supreme Court and in the hopes of persuading the members of this panel that they, too, should call on the Supreme Court to restore the constitutional protection that Jones improperly erased."
In a brief supporting Mendenhall's appeal, five law professors argue that "the text and Founding-era understanding of the Fourth Amendment require that a warrant be supported by admissible witness testimony." They add that "cases decided shortly after ratification confirm that hearsay is not a proper basis for issuing a warrant."
Two other briefs underline the hazards of hearsay-based warrants. The National Police Accountability Project and the Law Enforcement Action Partnership note that warrants based on secondhand information, typically from confidential sources who have incentives to lie or exaggerate, "routinely result in wrong house raids," which "present significant danger to residents of the home and officers executing the warrant," often resulting in "civilians and police being seriously injured or killed." That danger is starkly illustrated by the March 2020 raid that killed Breonna Taylor.
Louisville, Kentucky, police broke into Taylor's apartment late at night based on a search warrant obtained by Detective Joshua Jaynes, who claimed a U.S. postal inspector had informed him that her ex-boyfriend, a suspected drug dealer named Jamarcus Glover, had been receiving packages at her address, which Jaynes suggested might contain drugs or drug money. It turned out that Jaynes never spoke directly with the postal inspector, who said there was nothing suspicious about the packages. But that revelation came too late for Taylor, who died in a hail of bullets after her new boyfriend, Kenneth Walker, fired at the invading officers, whom he mistook for violent criminals.
Walker was initially charged with attempted murder of a police officer, but prosecutors dropped that case two months later, implicitly conceding that he had a strong self-defense claim. "No drugs, money, or contraband were found in Ms. Taylor's apartment during or after the raid," notes a brief that Walker submitted in support of Mendenhall's appeal. "Mr. Glover himself later confirmed that Ms. Taylor had no involvement in his drug trade, explaining that the only packages he ever had sent to her address contained clothes and shoes that we was afraid would be stolen if sent to the house where he stayed."
Taylor's senseless death "reflects not only a catastrophic failure of the warrant process, but also a foreseeable consequence of Jones," Walker's brief argues. "By allowing magistrates to issue warrants based on hearsay, Jones removed the requirement that a declarant appear in court, swear to the truth of their statement, and be subjected to questioning, and replaced it with a framework that lends itself to fabrication."
Thanks to Jones, "officers seeking a warrant but lacking probable cause—like Detective Jaynes—may now be motivated to enhance their own affidavits by inventing conversations with third-party declarants," the brief notes. "And, because Jones requires no oath or appearance from those declarants, the reviewing judge must rely entirely on the affiant's secondhand account of what a declarant allegedly said and why he/she should be believed. Not only does the magistrate have no opportunity to evaluate the declarant's demeanor, consistency, or basis of knowledge, but also, more fundamentally, the magistrate effectively has no way to verify whether the declarant even exists or ever even made the statements attributed to him/her. The result is a system in which wholly fabricated claims can serve as the basis for intrusions into our most private spaces."
That brief was joined by Anjanette Young, another victim of a raid based on secondhand information. On a Thursday evening in February 2019, a dozen Chicago police officers, acting on a tip from a confidential informant, burst into Young's apartment. Young, who was changing out of her work clothes, was caught "completely naked and exposed." She was handcuffed in that state, feeling utterly humiliated, for 10 minutes while the officers vainly searched her apartment for an armed felon. "It quickly became apparent that the information they had received from the informant was bad," the brief says. "They were at the wrong apartment."
Young "should never have had to endure the invasive and degrading raid that was conducted on her home," the brief adds. "When presented with a warrant application that relied entirely on an unverified tip from an informant, the magistrate judge who issued the warrant had a constitutional obligation to probe the basis for the officer affiant's assertions—e.g., by asking whether the informant's claims were corroborated and what, if anything, law enforcement had done to verify them. While it is unclear whether the magistrate ever spoke with the informant, the fact that he issued the warrant at all—given the apparent lack of any attempt by officers to verify the informant's tip—is highly suggestive of a lack of any meaningful consideration."
Jones encourages such lax oversight, the brief argues: "The magistrate judge is no longer able to meaningfully perform [his] constitutional role. Denied access to the declarant, the judge cannot assess his/her credibility firsthand. Instead, the affiant alone decides which facts to include and which to withhold, effectively filtering the evidence and shielding the judge from any information that might undermine the affiant's narrative….The Fourth Amendment demands more than this system of magisterial rubber-stamping that Jones has engendered."
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