The first thing cops should anticipate when raiding a medical marijuana dispensary is that there will be video. The second thing is that when the cops go around disabling the video, they’re going to miss a few cameras because they’re well hidden and, cops being cops, it’s just too much effort to do their job well.
Sucks if you’re one of the three Santa Ana cops who participated in the raid on Sky High Holistic. Especially if, after you thought nobody was watching, you started munching down on those delicious chocolate brownies. Yum.
A lawsuit, filed last week in Orange County Superior Court by three unidentified police officers and the Santa Ana Police Officers Association, seeks to prevent Santa Ana Police Department internal affairs investigators from using the video as they sort out what happened during the May 26 raid of Sky High Collective.
Lawyers for police and the dispensary said the video – which has been widely seen on television and several online news sites, could play a key role in the ongoing investigation into the officers’ actions.
The video is, in the scheme of great video these days, fairly pedestrian. See it for yourself, if you have a lot of time on your hands.
The incongruity of the “dynamic entry,” meaning that needlessly violent and destructive ramming of the doors and cops coming in with guns drawn, because they couldn’t have just knocked and politely asked all the people there buying pot to have a seat, is worth the trip. The video has plenty of other cool tidbits, like their treatment of a patron in a wheelchair and their disabling of cameras, because why should anyone get to see what public officials do in the performance of their duty.
But it’s snagging some edibles that really got the cops in hot water. And that’s what they are now fighting viciously to conceal with some truly fascinating arguments:
Among other things, their lawsuit argues that the officers thought they had disabled all of the security cameras at Sky High Holistic and therefore had a reasonable expectation of privacy. The cops complain that the dispensary never got their permission to record them as they searched the premises.
Of course, it’s not like the cops got the dispensary’s permission to break down its doors, point weapons at its patrons, destroy its video and eat its brownies. I wonder if they left money to cover the cost?
“All police personnel present had a reasonable expectation that their conversations were no longer being recorded and the undercover officers, feeling that they were safe to do so, removed their masks,” says the complaint, which was filed in Orange County Superior Court. “Without the illegal recordings, there would have been no internal investigation of any officer.”
A brilliant legal argument, if ever there was one. If the cops were caught, they wouldn’t have been caught. Damn straight. And people have the audacity to call suppression of evidence under the Fourth Amendment a technicality.
Under California law, “all parties to a confidential communication” must consent to being recorded, but that rule does not apply when “the parties to the communication may reasonably expect that the communication may be overheard or recorded.”
Among California’s many, ahem, quirks is that it’s a two-party consent state. One couldn’t, lawfully, call an on-duty police officer on the phone and record the conversation without the usual admonition that “this call is being recorded.” But this argument turns the concept on its head.
Matthew Pappas, a lawyer for Sky High, pointed to the irony of police seeking to shoot down the use of video as evidence in an investigation when they routinely use videos to investigate other crimes.
“It’s pretty pathetic for police to say if we don’t like something that it can’t be used as evidence,” Pappas said.
While certainly true, pathetic isn’t a legal argument. Rather, the argument is that Sky High didn’t engage in any affirmative act to record the secret snacking of officers, but rather maintained video surveillance of its facility, a fact clearly well known to the officers who went out of their way to disable the cameras.
The lawsuit argues that the video doesn’t paint a fair version of events. The suit also claims the video shouldn’t be used as evidence because, among other things, the police didn’t know they were on camera.
“All police personnel present had a reasonable expectation that their conversations were no longer being recorded and the undercover officers, feeling that they were safe to do so, removed their masks,” says the suit.
The position, ironically, is that having disabled the video, they had a reasonable expectation of privacy. The failure of the argument is that they did an incompetent job of disabling the cameras, having failed to disable all the cameras. In other words, it wasn’t Sky High’s actions that caused the officers to be videoed, but their own incompetence at destroying the evidence.
Pappas counters that the suit is baseless because the officers were aware the dispensary had video cameras and managed to disable most of them.
“They knew they were on video. … Just because they missed one camera doesn’t make it illegal.”
The cops’ incompetence at concealing their illegal conduct doesn’t make the video illegal. It makes them cops. Bummer.
While there’s a strong argument to be made that the police officers involved had a reasonable expectation of incompetence in the execution of the warrant, rude behavior and brownie eating, their complaint about their expectation of privacy is attributable to no one but themselves. All things considered, tough nuggies.
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Police officers…redefining chutzpah on a daily basis.
But seriously, what to do you think are the odds that the video will be suppressed? I have to imagine that they are not insignificant.
It’s an internal investigation, not a prosecution, so the incentives are different. But as far as the law is concerned, the argument that the video is illegal is total crap. What will be decided is another matter.
I went and knocked down the door, and then I got high
Told those hippies to hit the floor, but then I got high
Now I’ve got the munchies and I know why (why man?)
Because I got high
Because I got high
Because I got high
LA DA DA DA DAAA
(me aping song lyrics is no Fubar limerick, but still)
Not bad. Not Fubar, but still.
Some cops, in a raid on some townies
Kicked back and got into the brownies.
They thought they were covered
But film was discovered
And now the whole case is the county’s.
There once were three cops from Santa Ann
Who conducted a raid with a plan
But on the way they got distracted
Being stoned while they acted
Then whined when the got caught by “The Man”
Perhaps the internal affairs investigation is how an undercover officer had a reasonable expectation that line deputies and detectives can properly disable the video system of a business they were casing.
I know you criticize the pot lawyer’s “pathetic” argument but I’m sure there’s not a long line of case precedent regarding supressing videos of police inside a private business using a Katz holding.
Huh?
Marc got into the brownies again.
Cops raiding a dispensary and then eating the pot brownies sounds like something out of a Cheech and Chong movie.
Suing to bar the use of relevant evidence because its damning, we’re getting closer to something out of the Twilight Zone, although its also straight out of reality.
So, the argument from the cops is “While doing our job and raiding a business, we thought we disabled the all cameras to prevent them capturing our illegal actions. Because of this, they had an expectation of privacy during their criminal actions, and thus the video should not be permitted.”
That might be the most ballsy argument I have ever heard…
If nothing else, you have to admire its ingenuity and chutzpah.
Every time I think about it I laugh. I want to meet the lawyer who put forth this argument, and buy him a beer.
> That might be the most ballsy argument I have ever heard…
Up there with the Menendez bothers…. who begged for mercy because they were orphans….
Please forgive an ignorant layperson’s question…
My knee jerk reaction is, there is no expectation of privacy for the police because it is based on the unnecessary and should be illegal destruction of private property. How is it legal for police conducting a search to intentionally [wantonly] destroy/disable private property like the video cameras?
Understand that just because the cops are raising the argument doesn’t make it valid. Ordinarily, anything the police do in public in the performance of their duty is fair game. Their point here is that it was inside, private, and they had disabled the cameras. Because they disabled the cameras, they had a reasonable expectation of privacy. Therefore, the video violated their rights.
If I understand your question, how can they claim a right to privacy to conceal their misconduct, one bit of law often clashes with another bit of law to come up with absurd arguments. This is such an argument.
I think Mark C was asking whether the police officers had any legal power to disable (that is, damage) the surveillance system?
That could be, and it’s a good question.
I wonder if they had their medical cards? And if so, whether or not they were expired.
They should have blazed up some wax right off the bat. That would have chilled them out right now to the point where they probably could have contemplateed on where the propieter place the other cameras.
It’s not all bad. Perhaps internal affairs will recommend that all future raids should be proceeded by pot smoking in the van before the raid. Who knows, but they might even be able to figure out that door knocking thing if they were properly stoned.
I remember testimony years ago about a raid where they banged on the door, and someone inside yelled, “it’s open, come on in,” but the broke it down with the battering ram anyway. On cross, the cop with the ram was asked why:
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The whole good cop/bad cop question can be disposed of much more decisively. We need not enumerate what proportion of cops appears to be good or listen to someone’s anecdote about his Uncle Charlie, an allegedly good cop. We need only consider the following: (1) a cop’s job is to enforce the laws, all of them; (2) many of the laws are manifestly unjust, and some are even cruel and wicked; (3) therefore every cop has agreed to act as an enforcer for laws that are manifestly unjust or even cruel and wicked. There are no good cops. ~Robert Higgs
Thanks for our morning dose of idiocy. Because the world isn’t stupid enough without crap like this.
Interesting argument! So this means if a thug breaks into a house, and tries (unsuccessfully) to dismantle the video surveillance and / or alarm system, nothing he then does afterwards should be used as evidence of the crime?
Only on Bizarro world, maybe…
Thankfully I have no experience with raids. Is it normal for police to disable security cameras when they conduct raids? That act alone screams “Hey, we’re about to do some bad things here” to me.
In the few cases I’ve had where police have raided places where there was video surveillance, they disabled everything and seized it as evidence. In this instance, I really don’t know, but it clearly smells as if they wanted to conceal their own conduct.
> clearly smells as if they wanted to conceal their own conduct.
No, really??? But but… that would be illegal….
This is why off-site streaming and backup is such a good idea; video evidence against cops has a habit of vanishing. [Laquan McDonald, for example.]
And some other intruders as well; many a video surveillance system left with the other bootie.