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

by Tim Cushing
Techdirt
Jan. 06, 2016

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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