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 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.

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.

[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 positives

This 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.”

Boom! There’s your probable cause. The law be damned.

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.

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.”

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.

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.

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Comments on “Judge Helps Ensure That The More Ignorant Law Enforcement Officers Are, The More They'll Be Able To Get Away With”

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That One Guy (profile) says:

Narrow in scope? Not so much...

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.

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.

That Anonymous Coward (profile) says:

The ends justify the means.
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.

Anonymous Coward says:

Re: Re: RE: The ends justify the means

IIRC it is immunity from prosecution, aka qualified immunity.

You are confusing the legal doctrine of ignoring egregious behaviour of law enforcement with the social doctrine that says law enforcers are infallible and therefore immune to even the suspicion of wrongdoing.

Trails (profile) says:

Who's responsible for the tests?

Isn’t the police dept as a whole responsible for ensuring their field tests are reliable? I get maybe not holding individual cops responsible in this instance (the switch from looking for a grow op to looking for personal use notwithstanding), but the dept should have a responsibility to ensure their forensic tests are accurate. Otherwise, tests which are notorious for false positives become probable cause factories.

jilocasin (profile) says:

Re: Who's responsible for the tests?

Hopefully these particular local cops have just used up their Ignore the 4th amendment for this reason card.

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.

Anonymous Coward says:

Re: 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.”

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).

Anonymous Coward says:

Re: Re: Who's responsible for the tests?

… these tests are less than reliable …

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.

Anonymous Coward says:

Re: Re: Re: Who's responsible for the tests?

If a scientist were conducting the analysis, they would use several different methods of measurement and include a control group. I doubt this level of integrity is afforded to the peon class of ordinary citizens. In addition, this level of testing is not needed for the elite ruling class because they have immunity and pretty much do whatever they please. In conclusion, it appears that no one is in charge of insuring the integrity of the testing. The only thing they seem to care about is ensuring the perp pays the bill for their inaccurate testing.

Anonymous Coward says:

Re: Re: Re:2 Who's responsible for the tests?

In addition, this level of testing is not needed for the elite ruling class because they have immunity and pretty much do whatever they please.

Affluenza is a legitimate defense in court, and I’m appalled at your bigoted attitude towards these poor suffering people who are afflicted with such a horrendous and debilitating medical condition.

Anonymous Coward says:

Re: Re: Re: Who's responsible for the tests?

OK, this got me thinking (not something I like, but now & again you gotta do what you gotta do regardless of how unpleasant it is). My probability & combinatorics is rusty, but:

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.

Anonymous Coward says:

Re: Re: Re:3 Who's responsible for the tests?

Indeed, but I was also thinking along the lines of the odds of getting two defective kits in a row, versus the odds of the cops just declaring all tests to be positive and simply running the kits on “known good” samples from the evidence locker to show whatever result they want.

tqk (profile) says:

Re: Re: Who's responsible for the tests?

It has to get really out of hand before anyone speaks out …

Apparently so!

… as many as 40,000 people could have been falsely convicted as a result of Dookhan’s actions. … defendants whose convictions on drug charges were based on evidence potentially tainted by disgraced former state chemist Annie Dookhan can pursue retrials …

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?!?

Anonymous Coward says:

Re: Re:

If I had a paramilitary force break down my door the first one through would have been dead, followed by myself shortly after of course. But That’s what it takes to defend my home and family so be it. The alternative would be to submit and watch my family get felt up and abused by jack booted thugs. So no contest there.

Personanongrata says:

Re: Re:

Shopping at a garden center for drug dealers , next they’ll be hunting down anyone who buys a pressure cooker

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.


MarcAnthony (profile) says:

Re: Speaking of probable cause...

This is my question, as well. By staking out a gardening center’s every customer for plate info, are they not already technically engaged in a mass warrantless search/seizure? Considering how many people garden as a hobby, it’s a baseless presumption that a consumer at such a shop must be up to something illegal, and having the government tracking citizen whereabouts without a bona fide reason is not the intent of the 4th amendment.

Anonymous Coward says:

Re: Speaking of probable cause...

Yeah, if they can do this, doesn’t it mean that LEOs would also have unlimited access to ALPR databases without a warrant? If they can record and use plate numbers in one location, there’s no reason they’d be prevented from doing so in what is effectively many (or all) locations at once.

Anonymous Coward says:

This right here is why I advocate people’s right to own guns. The law protects the police and other state supported organizations that treat the law as nonexistent when it comes to their victims. How much worse do you think it would be if people had no ability to defend themselves, and the police knew that there was no chance anyone could ever hold them to account if those in blue chose to go off on a crime spree against the citizenry.

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.

Anonymous Coward says:

One law for me and another for thee

As prosecutors are so fond of saying, the defendant knew or reasonably should have known that the test was prone to false positives. After all, if they do not know the false positive rate, they likely also do not know the false negative rate, which means that their ignorance could be causing them to let real criminals go free because they did not run the test enough times, or did not handle the ingredients properly, or failed to follow usage instructions. Once we couch this in terms of how many guilty people they are letting go free, then they have an incentive to learn how to use the tool.

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?

Anonymous Coward says:

Actually quite tricky here...

The discussion thread seems to have gone slightly off-topic to discuss the details not directly applicable to the case.

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.

Anonymous Coward says:

I just realized that the worse the Intelligence Services do their jobs, the more money and power are thrown at them. The less a Law Enforcement Officer knows about the law, the the more immune he becomes to the law. I’m seeing a pattern, and I gotta try something.

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.

Anonymous Coward says:

Forget about the inaccurate weed tests for a moment...

Can we go back to that bit about the police compiling a database of every customer who visits the gardening supply store so they can dig through all their trash cans later? That seems like a rather huge 4th amendment violation to me. How the heck is that legal? Could that store sue the police for harassing all their customers?

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