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.