Balko or Kerr: Reading Tea Leaves

At Volokh Conspiracy, Orin Kerr takes Radley Balko to task for a material omission, a headline that neglects to include the salient legal details of a holding by District of Kansas Judge John W. Lungstrum.

Radley Balko is getting a lot of attention for his provocative post “Federal judge: Drinking tea, shopping at a gardening store is probable cause for a SWAT raid on your home.” It sounds crazy, right? Why would a federal judge think that drinking tea and shopping at a gardening store amounts to probable cause?

Fortunately, there was no such ruling.

Well, that’s technically true, as the decision was a grant of summary judgment to the defendants in a § 1983 case. The headline leaves out a critical detail, that the police field tested what “appeared to be wet marijuana plant material (leaves and stems)” found in the garbage of Adlynn and Robert Harte’s trash.  Not once, but twice, and both times it tested positive for THC. The Hartes, former CIA analysts, found themselves on the cops’ radar because Robert went to a hydroponics store that police believed to be frequented by pot growers.

Armed with this information, and based upon their “training and experience,” police obtained a search warrant and in went the SWAT team to nail the Hartes’ grow house. When it became obvious there was no grow house, they went for any evidence of pot use, because it would be a shame to waste a good warrant and SWAT raid. Still, they came up empty. As it turned out, the Hartes went to the hydroponics stores because they like to do some gardening, and the saturated plant material was Mrs. Hartes’ tea leaves.

All of this was noted by Radley in his post.

But, of course, they found nothing. Lab tests would later reveal that the “saturated plant material” was actually loose-leaf tea, which Addie Harte drinks on a regular basis. Why did the field tests come up positive for pot?  As I wrote back in February, it’s almost as if these tests come up positive whenever the police need them to. A partial list of substances that the tests have mistaken for illegal drugs would include sage, chocolate chip cookies, motor oil, spearmint, soap, tortilla dough, deodorant, billiard’s chalk, patchouli, flour, eucalyptus, breath mints, Jolly Ranchers and vitamins.

The conflict here derives from an inherent difference in perspective, both in how much of a slave one is to the court’s ruling, and whether one views the SWAT raid, the search warrant, the Fourth Amendment, from the point of view of innocent homeowners or police protecting society from the scourge of demon marijuana.  Judge Lungstrum’s ruling addressed the liability of the police for a raid that turned up nothing, but was performed with the benefit of a search warrant, which was obtained with the benefit of two positive drug tests. What more can one expect of the police?

The answer may well be found in whether one views the Fourth Amendment as a roadmap for the police in how to search and seize, or as a protection of individual privacy for innocent citizens from wrongful searches and seizures.

But it turned out to all be a mistake. The “plant material” was just loose-leaf tea. The field test results were false positives. The visit to the hydroponics store was to buy supplies for an indoor hydroponic vegetable garden.

With the benefit of hindsight, all the suspect did was drink tea and buy supplies to grow vegetables. That explains Balko’s headline.

Not only does that explain Radley’s headline, but the perspective of an innocent homeowner doing totally lawful things who became the victim of a SWAT raid. Among the facile mantras of those who defend aggressive police actions is that people can avoid being the target of the cops by not committing crimes. Well, that pretty much covers the Hartes, except it didn’t quite turn out that way.  But, of course, no reasonably sentient being buys such simplistic mantras, right?

Therein lies the conflict.  Judge Lungstrum held that the two false positive field tests provide “a hurdle that is all but impossible for plaintiffs to overcome.” Science. Except as Radley properly explains, it’s bad science. But it’s science-y enough for the law, and was used to get a search warrant, which cloaks the cops in immunity unless the warrant was obtained based on a material falsehood, whether affirmative or by omission.

Of course, the problem for innocent targets of a police search is that there is no ex post suppression hearing because there are no charges and nothing to suppress.  It’s one of the fundamental flaws with Orin’s contention that the ex parte application for a warrant shouldn’t be subject to serious ex ante review by the issuing magistrate. Sign off and let the parties fight it out later. Except there isn’t always a “later,” because not everyone is guilty. Judge Lungstrum explained:

While the court does not doubt that a judge would have wanted to know that the field test kits that Deputy Burns and Deputy Blake were using tended to yield false positive results “at a high rate,” there is simply no evidence that Deputy Burns or Deputy Blake had any knowledge of that information.

But there is no possible way for the Hartes to have poven otherwise, though one would surmise that a test fraught with convenient false positive results would be widely known because of the searches that produced no evidence of crime. But the cops claimed they had no idea, and the Hartes had no inside cop-snitch to say otherwise.

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.

So did Radley Balko’s headline create a furor that the decision failed to support?  If you’re a cop basking in the warm glow of qualified immunity based on a crap field test that is close enough to get a judge to sign off on a SWAT raid, the answer is “absolutely.” But if you’re the Hartes, the failure here is that the law, the Fourth Amendment, failed to protect them from the cops, all because they drank tea and grew hydroponic vegetables.  And regardless of the gymnastics required by the law, that’s all the Hartes did to find themselves at the business end of a SWAT rifle in their home.

22 thoughts on “Balko or Kerr: Reading Tea Leaves

  1. Keith

    So, armed with this knowledge, will Judge Lungstrom tell police that the next warrant won’t issue based on such an unreliable test as there’s not enough evidence to support probable cause? Or will he just assume they know what they are doing in those lab places?

    1. SHG Post author

      I would suspect the rationale to go something along the lines of, “we can’t require perfection of either the police or the tests they employ to save us from the plague of drugs…”

  2. Randall

    What do you reckon to be the main takeaway from a situation(s) like this, or, maybe the largest failing? Is it that the police should be held liable if certain searches comes up empty? That the issuing magistrate should be more skeptical of warrant applications that cross his desk?

    1. SHG Post author

      It’s always great when someone takes a complex situation and seeks to reduce it to the point of absurdity by asking something like “What do you reckon to be the main takeaway.” It’s not like there shouldn’t be ten, one hundred, one million takeaways, because that could give someone a headache, and so it should always be reduced to a “main” takeaway so no head ever aches.

      1. Randall

        It’s less that and more an internet friend of mine had a particular interpretation of your post that differed from mine:

        “The post says over and over again that how you view the case depends on whether you view the 4th amendment from the POV of the cops or the innocent victim. But that’s wrong.

        Consider two different scenarios: 1) the test used to find drugs is 99.99999% accurate, but this was the 0.00001% where it was wrong; 2) the test is only 50% accurate, no better than if you just flipped a coin.

        From the POV of the innocent victim, those cases are identical. In both cases all they did was drink tea and their house got raided. But if the issue is whether the cops are liable they should be treated very differently.”


        “If the cops don’t find anything then there won’t be a suppression hearing. But you can still bring a 1983 action against the cops for violating your rights. Which is what happened here.

        Is Greenfield saying that cops ought to face strict liability for searches that don’t turn up anything? IMO that would create some very perverse incentives (“We didn’t find anything?” *drops dime bag*)

        If the standard is not strict liability then there will be cases where people do nothing and still get raided. So all the talk about looking at things from the innocent person’s POV is wrongheaded IMO. If you want to say that the cops should be liable in this case then you need a different argument.”

        My apologies if the length of the copy-paste is too long.

        1. SHG Post author

          The POV piece of my post addressed the glaring distinction in perspectives of Radley and Orin. It wasn’t a suggestion (either way) that there should be strict liability for searches that don’t turn up anything. There were numerous points along the spectrum of problems here where this could have been corrected, but this ultimately addresses Judge Lungstrum’s ruling, which was the typical deference to the field test and warrant, and unreasonable expectations of proof from the plaintiffs, with no recognition that the Hartes, the only people injured by all this, did absolutely nothing to bring this down on themselves.

          The court was extremely charitable to the police officers here.

  3. Sacho

    I missed you, Scott. Happy Current Year.

    I think scientists should take a more active and aggressive role identifying and critiquing police-used tools and kits. It really doesn’t help that the good-faith defense that the policemen didn’t know makes it look like everyone washing their hands of responaibility. It is not reasonable to use a tool and not know its effectiveness and confidence intervals, but seems like that’s par of the course in police work. 25% chance to be marijuana just dosn’t sound as sexy as “tested positive”.

  4. DaveL

    So, what precisely is the difference between allowing the SWAT team to raid somebody’s house because they drink tea, and allowing the SWAT team to raid somebody’s house because they have a bogus test that tells them tea is actually marijuana?

    1. SHG Post author

      Based upon training and experience, most tea drinkers are drug dealers, especially when they drink tea indoors in order to conceal their activities from law enforcement. And drug dealers are usually armed, you know.

  5. Patrick Maupin

    Orin’s rigorous analysis of exactly what happened, coupled with his unwillingness to concede that Radley’s headline fairly accurately described the outcome even if missing a few steps, shows a certain tone-deafness, or as you say, an “inherent difference in perspective”.

    “Fortunately, there was no such ruling.” completely misses the mark that for the Hartes or for anybody else in similar circumstances, Radley nailed the essence of the ruling.

    Orin’s tone-deafness isn’t really remediated by his update, which suggests the lead officer should be “reassigned” — apparently not because he’s mendacious, but because he needs more training to tell the difference between tea and marijuana.

    In fact, Orin’s update suggests that, if anything, he feels sorrier for the poor maligned judge who was just doing her job than he does for the Hartes, who aren’t getting paid to deal with any of this shit.

    On the one hand, Orin’s column probably isn’t making anybody any stupider about legal issues. On the other hand, it’s a great example of how to keep the public convinced that lawyers are evil, scheming bastards with no empathy.

  6. Mort

    It’s a damned good thing they didn’t fly from LA to Chicago, or had a single loaded magazine from a pistol on a table at the time of the raid… They might have had all their stuff seized.

    1. SHG Post author

      It’s a damn good think he didn’t stand up and argue with the cops, like an innocent person is often inclined to do. They don’t care for such behavior from drug growers, and tend to respond poorly.

  7. Jardinero1

    From the affidavit: “1/4 cup saturated marijuana plant material (leaves and stems)” that was “consistent” with that found the previous time.”

    That means that the cops found half a cup total of leaves in the trash over two weeks. If I were the judge, I might have asked, “Who the f*ck throws a quarter cup of unburned weed in the trash every week?”, before I signed off on the warrant. Just saying.

    1. David M.

      Oh sure, “Jardinero.” Hey, would this nym, plus his insufficiently dense question, get me a search warrant in Kansas?

      Asking for a friend.

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  9. Troutwaxer

    Maybe I’m commenting a little late on this, but I think there’s another aspect to this case, which is that the Hartes showed up on a cop’s radar specifically because they bought something from a hydroponics store and were immediately thought of as criminals. Thus the “criminal’s” tea was magically transformed into pot despite the fact that tea has a very strong, distinctive odor which is unmistakeable. Since tea has an unmistakeable odor, why test it unless you intend to lie?

    The real issue here is not “given a warrant in error,” but “lied to get the warrant,” so Balko didn’t address the “technical” legal issues Kerr is concerned with because Balko didn’t miss the forest for the trees.

  10. Libertarian Advocate

    As much as I despise the scent of patchouli – it literally makes me nauseous – I can’t imagine that there aren’t far better tests out there to distinguish it (or any other substance) from weed. One would think that the prison industrial complex would welcome a far more accurate technology. But maybe scaring the sh*t out of innocent people is just too much fun to pass up.

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