Judge Helps Ensure That The More Ignorant Law Enforcement Officers Are, The More They'll Be Able To Get Away With
from the useful-idiots-on-the-front-line-of-the-Drug-War dept
So much for the Fourth Amendment. Even though a field test for marijuana returned false results twice and a SWAT team raid of Robert and Addie Harte's house turned up no drugs or paraphernalia, the cops involved have been let off the hook by a federal judge. Radley Balko runs down the details of the decision in his post entitled "Federal judge: Drinking tea, shopping at a gardening store is probable cause for a SWAT raid on your home."
The family was held at gunpoint for more than two hours while the police searched their home. Though they claimed to be looking for evidence of a major marijuana growing operation, they later stated that they knew within about 20 minutes that they wouldn’t find any such operation. So they switched to search for evidence of “personal use.” They found no evidence of any criminal activity.The incriminating leaves were nothing more than loose-leaf tea. The Hartes were not drug dealers, nor were they using marijuana. Nonetheless, the federal judge decided the whole thing -- from cops camping out in the parking lot of a gardening store to the two bogus field tests to the fruitless raid of the Harte's residence all complied with the Fourth Amendment.
The investigation leading to the raid began at least seven months earlier, when Robert Harte and his son went to a gardening store to purchase supplies to grow hydroponic tomatoes for a school project. A state trooper had been positioned in the store parking lot to collect the license plate numbers of customers, compile them into a spreadsheet, then send the spreadsheets to local sheriff’s departments for further investigation.
[...]
On several occasions, the Sheriff’s Department sent deputies out to sort through the family’s garbage. (The police don’t need a warrant to sift through your trash.) The deputies repeatedly found “saturated plant material” that they thought could possibly be marijuana. On two occasions, a drug testing field kit inexplicably indicated the presence of THC, the active drug in marijuana. It was on the basis of those tests and Harte’s patronage of a gardening store that the police obtained the warrant for the SWAT raid.
[Judge John W. Lungstrum] found that the police had probable cause for the search, and that the way the search was conducted did not constitute excessive force. He found that the Hartes had not been defamed by the raid or by the publicity surrounding it. He also ruled that the police were under no obligation to know that drug testing field kits are inaccurate, nor were they obligated to wait for the more accurate lab tests before conducting the SWAT raid.The Hartes' lawsuit is still alive… barely. The judge granted a motion for summary judgment in favor of the defendant law enforcement agency, but the case has not been dismissed.
Orin Kerr, writing for the Volokh Conspiracy, took issue with Balko's "provocative" headline, claiming Lungstrum's ruling said nothing of the sort.
Yes, there was a legal decision, but it had nothing to do with visiting gardening stores or the culpability of drinking tea. Instead, the issue in the case was when the police can rely on positive field tests for THC, the active ingredient in marijuana. The judge ruled that officers cannot be held personally liable for searching a home with a warrant based on two positive field tests for marijuana, a week apart, from plant materials found in the suspect’s discarded trash, at least when the officers did not know about the risks that the field tests results were false positivesThis basically says the same thing Balko's paragraph on the ruling does, only Kerr maintains that it does not show drinking tea and visiting gardening supply stores could lead to a SWAT team raid. The problem is that this is exactly what happened. So, while the judge's decision doesn't explicitly state officers are fully justified in using dubious field tests and inefficient garden store parking lot stakeouts as probable cause for search warrants, it absolutely does affirm that these elements are insufficient to show a Fourth Amendment violation.
Why? Because probable cause is whatever a cop says it is. This is an ongoing issue in states where marijuana has been partially legalized. In California, medical marijuana is legal. The cops can't seem to deal with this new reality. So, they find bogus reasons to raid houses, relying on multiple law enforcement-friendly exceptions to the Fourth Amendment to keep their busts intact… or at least minimize the number of times judges will find them culpable for violations. Cops say "upon information and belief" and magistrate judges nod in approval.
Here's attorney Rick Horowitz on the subject.
In my area of the world, I get a lot of what defense attorneys call “medical marijuana cases,” and prosecutors – enrobed, or not – call drug-manufacturing, or drug-dealing, cases. Because the voters of the State of California voted to decriminalize marijuana use for people who obtained recommendations from medical doctors for the use of marijuana, and because doctors give out (really bad) legal advice along with the recommendations, and because the cops don’t want to try to go after doctors who recommend marijuana to anyone with $150 bucks (or whatever the current going rate is), because they have the money to fight back, we have a lot of folks growing marijuana in the highly-conservative right-wing center of California (the San Joaquin Valley) where it is most definitely not wanted by those in power. And so a cop will talk to a judge about a house he’s heard about with a bunch of marijuana plants, and say, “Based on my training, and experience, no one grows this many plants unless they are actually marijuana dealers hiding behind the medical marijuana laws stupidly passed by the electorate.”In this case, the probable cause was exceedingly thin. The Hartes went to a store where hydroponic gardening supplies could be purchased -- items that are used for legal gardening all the time. This simple fact was all that was needed for law enforcement to perform trash pulls. Items from the trash were tested and "found" to be marijuana, even though they weren't.
Boom! There’s your probable cause. The law be damned.
The only response offered by the sheriff's department for its field test failures is a shrug of indifference. If a cop tells a magistrate judge the tests are reliable, more often than not, a warrant will be issued, despite loads of evidence showing field tests to be notoriously unreliable. The officers simply say, "Huh. I've never heard of a failed test," and a federal judge forgives them for their ignorance and ineptitude.
Hilariously, the sheriff claimed these two failures on the same case are the only two times the department's field tests have been wrong, dating back to 1978.
The decision makes it clear the best thing cops can do to make bogus searches stick is to be wilfully ignorant of failure rates. They should do no research on the subject and should never question a positive test result. (They will likely remain skeptical of every negative result and re-test until the results confirm their biases.) Any information they might have that undermines probable cause should be discarded and wiped from memory. After all, the judicial branch has stated they're under no obligation to ensure statements made in warrant affidavits actually have any merit. Ignorance is bliss… or at the very least, good faith.
While Kerr is technically correct that a judge didn't say cops could go after anyone whose trash contains leaves if they also shop at gardening supply stores, the end result is basically the same thing. Kerr's view of the decision is summed up best by this comment on his post. (And credit where due, Kerr did point out that he enjoyed this comment.)
This is one more example of a case where the vast majority of people of good will review the facts and conclude there was an obvious and gross violation of justice while a pedant who is an expert in the 4th amendment assures us that "No, no, this is all very interesting, but..."If you want a technical view of the ruling, Kerr lays it out best. But the decision runs contrary to many people's view of the Fourth Amendment: that they should be free from unreasonable searches. The problem is, what's "unreasonable" to the public is very much considered to be "reasonable" to law enforcement and far too many judges. That explains the outrage at the outcome. The law can't protect innocent people from law enforcers. The remedies are too limited, and far too often, removed completely by judicial deference to law enforcement's definition of "reasonable." Scott Greenfield explains.
That the judge who signed off on the warrant accepted the results of the test as being sufficient to show probable cause, that the test produced sufficient positive results, even if totally false, to support the issuance of the warrant, made Lungstrum’s ruling perfectly legally reasonable. The Fourth Amendment says get a warrant, and they did. It requires probable cause, and they had it based on the field tests. The police enjoy qualified immunity unless they knew their application to contain material omissions about the test, and they shrug and say, “science.”At the end of it, we're supposed to take comfort in the fact that at least a warrant was obtained. This piece of paper, no matter how ignorantly or deceptively obtained, will shield law enforcement from much of the potential damage. But everything about this decision says cops are better off stupid and idealistic, rather than cognizant of the deficiencies of their tactics and methods. Judges don't expect law enforcement officers to know the laws they enforce and this only further encourages them to remain ignorant on other subjects as well.
Except the Hartes did nothing more than some veggie gardening and drink tea. All the twists of the law upon which summary judgment was granted against them not only failed to protect the sanctity of the home of two innocent people from a SWAT raid, and all that accompanies it, but provided no remedy after the accusations fell apart.
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Filed Under: 4th amendment, addie harte, gardening, probable cause, raids, robert harte, swat, warrant
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Narrow in scope? Not so much...
If the excuse they used to get the warrant was that they suspected a grow operation, the second they realized that there was no such thing on the premise they should have apologized and left.
That they instead switched to trying to find something, anything they could use indicates that they had no intention of leaving empty-handed, and it was only after two hours that they realized they weren't going to find anything.
Either they screwed up and ignored the limits on the warrant, or the judge screwed up in not setting any limits on the warrant, such that the police were allowed to look for basically anything they could use against the family.
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Drugs are bad, so we must support the zealous pursuit of evil drug dealing scum... and if we happen to screw over some innocent people we don't even have to say sorry. We followed all the the rules with a wink & a nod. We can even overlook that when there was no evidence of what we got the warrant for, we just expanded what we were looking for, because we KNEW they were bad people and if we just kept looking we'd find something to use to show how bad these people were. It is a pity that they happened to be innocent people, but to fight the evil drugs & get our press releases out... some people needs to pay the price.
One wonders how a Judge or one of these officers will feel when another agency finds their tea and the tests says its go time. One wonders if being on the otherside of the equation if they might feel that maybe just maybe real proof should be required, rather than making sure a deadline for a press conference might be missed.
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Re: which means its about fines and revenue
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RE: The ends justify the means
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IIRC it is immunity from prosecution, aka qualified immunity.
The general public will remain suspicious regardless of whether our esteemed leaders choose to prosecute their own kind.
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So pretty much anyone British is a suspect?
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Who's responsible for the tests?
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Re: Who's responsible for the tests?
Now that's is been officially brought to both the judge and the police department's attention that these tests are less than reliable, they shouldn't be able to state, with a straight face, that they had no idea.
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Re: Re: Who's responsible for the tests?
One would think so, until they claim that they have no duty to remember anything. It's probably not in their job descriptions that they must be capable of remembering what happened yesterday (harder for judges, but police officers could claim the only way to deal with the trauma of watching people buy equipment to grow tomatoes is to have amnesia).
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Re: Re: Who's responsible for the tests?
That's why the sheriff claimed, on the record, that these are the only two false positives since '78. What is that, maybe 1 in 10K? So now the cops can just say that the odds of a false positive are 0.01%, which would be close enough to perfect to make no difference... if it were true. But 'true' doesn't seem to be required for something to be a 'fact' anymore.
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Perhaps 10K tests since 1978 is too high an estimate. They used two just for this one sample, and this is a sheriff so we're talking about a whole county. It's almost certainly an extremely low estimate to say one/week, but I'll go with it. OK, ~40yr * ~50tests/yr gives us 2000 tests; only two failures means 1/1K or 0.1% false positive rate.
If the two tests were from the same batch, a manufacturing defect could explain two bad test kits being used in a row by the LEOs, but we can't address that w/o a lot more information. Just going w/ random chance with normal failure rate claimed by the sheriff, though, gives us a chance of 1 in 10K again (0.01%, P = 0.0001?).
The first two bad kits they've had in four decades occurring sequentially is possible, but not exactly probable*. (Although the problem is incredibly simplified, I'd go w/ 1 in 10K erring on the 'too likely' side of things.)
I'd like to read the instructions that come w/ the field test kits and see if they say "If the strip turns red, it's dope. If the strip remains white, it's really good dope."
_____
* - I'm getting worried I've got a host of prosecutor's fallacies in here, so it's definitely 'grain of salt' territory.
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Yes this happens - and not just for warrants. Iyt happens in actual cases too. It has to get really out of hand before anyone speaks out - as the case of Annie Dookhan shows.
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Apparently so!
I've got to wonder how any one bad apple can cause that much collateral damage without a lot of silent partners in crime. If I were a prosecutor, I'd be looking with glee at all the dirty cops I'm going to be spending the rest of my career putting in jail. "For all you officers and prosecutors who wanna get your arrest or conviction stats up, give it to Annie."
Fearless drug warriors, that's a Pyhrric Victory! What in the world are we doing worrying about illicit drugs when we've got hordes of crooked and/or incompetent cops and prosecutors roaming the halls of justice?!?
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Ignorance
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Re: Ignorance
Because the first part of that rule is just a device to make their job easier - as is the second.
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Judge dumber than the Cops
Sane way to handle is to simply legalize!
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Re: Judge dumber than the Cops
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Re: Judge dumber than the Cops
That's what Canada's new emperor Trudeau thought. Now we learn it's going to take a lot of negotiations with provinces and negating international treaties before it can happen. I wonder if I'll live to see it. What a bone-headed idea this was!
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And educated cops get fired.
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Re: And educated cops get fired.
Perhaps I missed something.
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Re: And educated cops get fired.
Stupid cop? "... he was fired after following a new law barring criminal charges ..." He wasn't charged. He was fired.
Note: TD is an opinion blog, not news and current events journalism.
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Welcome to the rabbit hole in wonderland they already are:
New York woman visited by police after researching pressure cookers online
Adam Gabbatt in New York
Thursday 1 August 2013 16.59 EDT
Long Island resident said her web search history and 'trying to learn how to cook lentils' prompted a visit from authorities but police say search was prompted by tipoff
A New York woman says her family's interest in the purchase of pressure cookers and backpacks led to a home visit by six police investigators demanding information about her job, her husband's ancestry and the preparation of quinoa.
Michele Catalano, who lives in Long Island, New York, said her web searches for pressure cookers, her husband's hunt for backpacks and her "news junkie" son's craving for information on the Boston bombings had combined somewhere in the internet ether to create a "perfect storm of terrorism profiling".
Members of what she described as a "joint terrorism task force" descended on Catalano's home on Wednesday.
The paragraphs above were excerpted from the The Guardian.
http://www.theguardian.com/world/2013/aug/01/new-york-police-terrorism-pressure-cooker
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I feel there is something missing here.
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Nonsense
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Speaking of probable cause...
What was the probable cause for this?
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No, I do not find it a stretch to think they would randomly terrorize people considering they are doing it already. Look at countries where the police act like jack booted thugs but the citizens have no right to defend themselves.
If the average citizen cannot get the law to defend him against the police then at least they can defend their homes against unlawful home invasions.
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One law for me and another for thee
I must also take issue with the claim that the raid did not defame the family. Under current culture, being the subject of a violent police raid and being held at gunpoint for hours on end is generally (though in my opinion, incorrectly) interpreted as proof the citizen was guilty of something. Yet the court claims that the police can thoroughly abuse a family, deny all wrongdoing in the abuse, and then expect everyone to believe the family was innocent?
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Actually quite tricky here...
The big issue here is: should a PD be held responsible for knowing how to use their own equipment?
It scares me that the police are using equipment for which they aren't properly trained, and SWAT is called out based on the resulting information, and that the courts have no issue with improperly trained officers having the authority to call out an armed unit.
Also: if the field tests were a week apart, why was there urgency in sending a SWAT when they could just wait for the lab results? The only urgency in this case seems to revolve around the PD and their desire to get something useful out of their investment in the investigation.
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Ahem... Women of the world heed my words! I work for the government, and I'm very bad in bed!
Now, all I should have to do is sit back and wait.
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Forget about the inaccurate weed tests for a moment...
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