5 ms·

Why the ‘wet tea leaves’ drug raid was outrageous

65 points by eric_h 11y ago

eric_h 11y ago
this is a good follow up to previous discussions of this case
krisdol 11y ago
"Robert Harte, along with hundreds of other people, became a suspect when Missouri State Highway Patrol Sgt. Jim Wingo saw Harte, his son and his daughter emerge in August 2011 from a hydroponic gardening store and wrote down the Hartes’ license plate number" How is this legal? I cannot believe that this is a satisfactory level of probably cause needed for the police to start digging through people's trash and raiding their homes. It's incredible. On that note, I don't believe for a second that there even was marijuana in the trash before they searched for it.
- abrodersen 11y ago
  This did not satisfy the probable cause. Police dug through the trash and conducted a field test, and the field test incorrectly tested positive for THC. The author criticized these field tests in the original piece as being wildly inaccurate and too easy to coerce into positive results.
  - jandrese 11y ago
    Those test kits are sometimes called probable cause kits, since they produce false positives so frequently. The conspiracy theory is that they're working exactly as desired and that more accurate kits would be counterproductive to their actual purpose.
    - guard-of-terra 11y ago
      Why would they do that? Why fake the test that will make you raid the empty house and look bad?
      - ceejayoz 11y ago
        Because in general the people they raid don't have the resources to spend $25k on a lawsuit to get the media attention. It's mostly risk-free, and they can find something illegal in most houses.
      - abrodersen 11y ago
        Besides bad PR, there are no repercussions, especially with this ruling that the police aren't liable. They can raid lots of homes and catch more drug makers, and they don't have to pay for any inconvenient injuries or deaths.
      - reverend_gonzo 11y ago
        They may have information through a confidential informant (that they don't want to give up) or a method that is not legal (and can't be used to get a warrant). So, instead, they use a field test that may often show a false positive, but is enough to get the warrant and get inside.
        jandrese 11y ago
        Confidential Informants like the cop writing down the license plates outside of the hydroponics shop?
      - chc 11y ago
        Police go on fishing expeditions all the time. Just because they don't actually have proof of the thing they were looking for doesn't mean they can't find anything to hang you. I once had a traffic stop evolve into the officer telling me I could either let him search my car or he'd call in a dog to give him probable cause. There really wasn't anything for him to find, but he doesn't have any reason not to play the odds.
        gingerrr 11y ago
        Luckily this particular practice is no longer legally sanctioned: https://en.wikipedia.org/wiki/Rodriguez_v._United_States https://en.wikipedia.org/wiki/Rodriguez_v._United_States
- zhemao 11y ago
  There wasn't any marijuana. What they thought was marijuana were actually tea leaves.
- deleted 11y ago
  [deleted]
- anon4 11y ago
  They are police. Of course it's legal. What are you, a hippie communist?
  - dang 11y ago
    > They are police. Of course it's legal. What are you, a hippie communist? Please stop posting unsubstantive comments to Hacker News.
- vec 11y ago
  It's completely legal for the police to make note of who enters a public storefront. It's also legal for the police to dig through your trash. Once it's placed on the curb to be picked up it's not your trash anymore, it's the city or county's trash, and they can do with it as they like. Evidence of illegal contraband in trash is almost by definition probable cause for a search warrant, and judges tend to be okay with handing out a few false positive warrants. Assuming that the police are professional and the citizens are cooperative, the damage is usually relatively minor. This seems to be less a case of rules failing and more a case of common sense breaking down. Wasting an officer's time someone's trash because you once saw them leave a gardening store isn't illegal, it's just a dumb waste of resources. And serving the resulting search warrant with a SWAT team is the kind of risk-averse cover-your-ass common sense violation that legal remedies tend to make worse instead of better.
guard-of-terra 11y ago
I think you've got to be a reptiloid to defend "federal judges" and the police. Of all the people in the world they're the least vulnerable from huma perspective. We should probably check whether Orin Kerr has scales for skin. Or exists.
- kelvin0 11y ago
  What exactly do you mean by 'reptiloid'?
  - guard-of-terra 11y ago
    A person that we can't even begin to understand. Philip Dick had an empathy test to detect androids - they did not show compassion towards cute animals in trouble. We have a similar problem here, if a person chooses to side with federal judges and the police versus public, we have an alarming creature on our hands.
    - krapp 11y ago
      Most people side with law enforcement at least some of the time, and many support the legal system and war on drugs on general principle. If that point of view is incomprehensible to you, then perhaps you're the one who needs a Voight-Kampff test.
  - livingparadox 11y ago
    Probably this: https://en.wikipedia.org/wiki/Reptilians https://en.wikipedia.org/wiki/Reptilians Disclaimer: I do not believe in these, but I think this is what was being referenced.
  - Gibbon1 11y ago
    Probably that there is something seriously sociopathic going on with police, prosecutors, and Judges that handle drug cases.
- deleted 11y ago
  [deleted]
kelvin0 11y ago
Nice, but going to a gun show and running guns across the border to Mexico does not seem to gather the same attention from law enforcement. http://journalistsresource.org/studies/government/criminal-justice/firearms-trafficking-u-s-mexico-border http://journalistsresource.org/studies/government/criminal-j... http://www.mcclatchydc.com/news/nation-world/world/article24746863.html http://www.mcclatchydc.com/news/nation-world/world/article24...
sp332 11y ago
I think Kerr's article was pretty good, but he does undersell the scope of the complaint. I thought the Hartes' were just trying to sue the officers personally for the bad policy. But their complaint was a lot bigger. From the judgement: Plaintiffs filed this action against various defendants alleging violations of 42 U.S.C. § 1983 for unlawful search, unreasonable execution of the search and excessive force in violation 2 of the Fourth and Fourteenth Amendments. Plaintiffs also assert a claim for municipal liability under Monell v. Department of Social Services, 436 U.S. 658 (1978). Finally, plaintiffs assert numerous state law claims against defendants, including trespass, assault, false arrest, abuse of process, intentional infliction of emotional distress and false light/invasion of privacy. This matter is presently before the court on defendants’ motions for summary judgment on all of plaintiffs’ claims. As explained in more detail below, defendants’ motions are granted in their entirety.
- codyb 11y ago
  The article stated they spent 25,000 on legal fees I believe. Their lawyers probably did the smart thing and tackled the issue on every front possible to see what would stick. As my dance instructor might have said... they seem to have taken a holistic approach (to their lawsuit | to dance) in an effort to achieve better results.
  - jdmichal 11y ago
    That $25ooo actually went only to a court order so that they could receive a copy of the documentation about the case leading up to the search. The cost of the case to the Harte family was not mentioned, and I'm hoping it was done on contingency. > After spending $25,000 to get a judge to order the Johnson County Sheriff’s Department to turn over documents related to the search and investigation leading up to it...
hoodoof 11y ago
All drug raids are outrageous. The stupid war on drugs is tearing society apart, criminalising citizens, filling jails, ripping apart families, wasting police and court resources, throwing away tax on enforcement, missing out on tax revenue and funnelling billions to organised crime. All because people want to get high, which is (for most drugs) a personal choice health issue.
- stoffie 11y ago
  Exactly! Even if there was actually marijuana, how can you justify a no-knock raid for a victimless crime like smoking weed? I bet those police guys would shit themselves and call it a day if they were to raid an actual criminal organization, with automatic weapons and grenades
- Vexs 11y ago
  I think there's a difference between crimanal drug usage and illegal drug usage. I mean, if it's a warehouse with massive ammounts of drugs in-out, then yes, a raid makes sense. There are criminals doing illegal things in there. However, a drug raid with the same tools preformed on an apartment is insane, it's going to be a group of people doing illegal things. I will confess an error in my thinking, in that it's really hard to legally define what I describe, if not impossible. But, as the bible says (paraphrased, and this is probably the first time I've ever quoted it..) "I would not destroy the city if there is a single innocent inside of it." If you can't make the law work, than maybe it shouldn't be there.
  - deciplex 11y ago
    > I mean, if it's a warehouse with massive ammounts of drugs in-out, then yes, a raid makes sense. There are criminals doing illegal things in there. Let's rephrase this a bit: > I mean, if it's a warehouse with criminals doing illegal things in there, then yes, a raid makes sense. Currently much of the drug trade is managed by criminals, and once you're breaking drug laws you might as well go ahead and break other laws e.g. human trafficking, extortion, etc. But that need not be the case, and it's not hard to imagine a warehouse with "massive ammounts [sic] of drugs in-out", where a raid would be totally unjustified and illegal.
ourcat 11y ago
TL;DR : Your freedom is an illusion.
bradleyjg 11y ago
An excellent reply and elaboration to the original article. Although I had my own qualms about Kerr's article (I commented here on HN when it was posted) having read his blog posts for ten years now I have a lot of respect for his erudition and even handedness. I look forward to his surreply which he promises to start working on in the comments section to the linked article.
- rqebmm 11y ago
  Man, I do love those few brief moments when the internet holds an actual debate. Too bad these poor people had to go through all the trouble for it.
jimrandomh 11y ago
This case centered around a field test, using a test kit which was highly prone to false positives and conducted by someone who wasn't trained how to use it. This was used to get a search warrant, which was executed by a SWAT team. A judge ruled that the police were not liable for relying on the faulty test. However, I think it's important to consider this in context. There have been multiple recent scandals in which US law enforcement was found to rely on supposedly-scientific evidence which was, in fact, nothing more or less than fraud upon the courts. (For example https://www.washingtonpost.com/local/crime/fbi-overstated-forensic-hair-matches-in-nearly-all-criminal-trials-for-decades/2015/04/18/39c8d8c6-e515-11e4-b510-962fcfabc310_story.html https://www.washingtonpost.com/local/crime/fbi-overstated-fo... and http://www.reuters.com/article/us-usa-crimelab-massachusetts-idUSBREA242FK20140305 http://www.reuters.com/article/us-usa-crimelab-massachusetts...). These scandals would have been easily prevented by the ordinary scientific practice of using control samples, so the fact that they weren't prevented indicates systematic bad practices. And there are widely-known deceptive practices still in use. For example, police bring "drug-sniffing" dogs with them, which bark whenever an officer cues them to, and courts accept this as though it were probable cause for a search.
anon4 11y ago
> They want to make 4/20 an annual drug raid event. So just make it like Halloween. Have the kids dress in police uniforms and go door to door with the actual officers searching every single house in the county. Have the adults give out marijuana-shaped candy. Say "pot or arrest" as you knock on the house. Have a competition at the end and declare the kid with the weightiest bag of "pot" the winner and give him/her a medal. Go all the way. It's good publicity you're after, not actual police work, after all.
hamiltonkibbe 11y ago
"As the law sees it, an officer can’t be recklessly indifferent to truth if he was never trained about, told about, or took the time to learn the truth in the first place." It's unfortunate that police are the only ones allowed to use the "ignorantia juris" defense.

65 points by eric_h 11y ago

this is a good follow up to previous discussions of this case

"Robert Harte, along with hundreds of other people, became a suspect when Missouri State Highway Patrol Sgt. Jim Wingo saw Harte, his son and his daughter emerge in August 2011 from a hydroponic gardening store and wrote down the Hartes’ license plate number" How is this legal? I cannot believe that this is a satisfactory level of probably cause needed for the police to start digging through people's trash and raiding their homes. It's incredible. On that note, I don't believe for a second that there even was marijuana in the trash before they searched for it.

abrodersen 11y ago
This did not satisfy the probable cause. Police dug through the trash and conducted a field test, and the field test incorrectly tested positive for THC. The author criticized these field tests in the original piece as being wildly inaccurate and too easy to coerce into positive results.
- jandrese 11y ago
  Those test kits are sometimes called probable cause kits, since they produce false positives so frequently. The conspiracy theory is that they're working exactly as desired and that more accurate kits would be counterproductive to their actual purpose.
  - guard-of-terra 11y ago
    Why would they do that? Why fake the test that will make you raid the empty house and look bad?
    - ceejayoz 11y ago
      Because in general the people they raid don't have the resources to spend $25k on a lawsuit to get the media attention. It's mostly risk-free, and they can find something illegal in most houses.
    - abrodersen 11y ago
      Besides bad PR, there are no repercussions, especially with this ruling that the police aren't liable. They can raid lots of homes and catch more drug makers, and they don't have to pay for any inconvenient injuries or deaths.
    - reverend_gonzo 11y ago
      They may have information through a confidential informant (that they don't want to give up) or a method that is not legal (and can't be used to get a warrant). So, instead, they use a field test that may often show a false positive, but is enough to get the warrant and get inside.
      - jandrese 11y ago
        Confidential Informants like the cop writing down the license plates outside of the hydroponics shop?
    - chc 11y ago
      Police go on fishing expeditions all the time. Just because they don't actually have proof of the thing they were looking for doesn't mean they can't find anything to hang you. I once had a traffic stop evolve into the officer telling me I could either let him search my car or he'd call in a dog to give him probable cause. There really wasn't anything for him to find, but he doesn't have any reason not to play the odds.
      - gingerrr 11y ago
        Luckily this particular practice is no longer legally sanctioned: https://en.wikipedia.org/wiki/Rodriguez_v._United_States https://en.wikipedia.org/wiki/Rodriguez_v._United_States
zhemao 11y ago
There wasn't any marijuana. What they thought was marijuana were actually tea leaves.
deleted 11y ago
[deleted]
anon4 11y ago
They are police. Of course it's legal. What are you, a hippie communist?
- dang 11y ago
  > They are police. Of course it's legal. What are you, a hippie communist? Please stop posting unsubstantive comments to Hacker News.
vec 11y ago
It's completely legal for the police to make note of who enters a public storefront. It's also legal for the police to dig through your trash. Once it's placed on the curb to be picked up it's not your trash anymore, it's the city or county's trash, and they can do with it as they like. Evidence of illegal contraband in trash is almost by definition probable cause for a search warrant, and judges tend to be okay with handing out a few false positive warrants. Assuming that the police are professional and the citizens are cooperative, the damage is usually relatively minor. This seems to be less a case of rules failing and more a case of common sense breaking down. Wasting an officer's time someone's trash because you once saw them leave a gardening store isn't illegal, it's just a dumb waste of resources. And serving the resulting search warrant with a SWAT team is the kind of risk-averse cover-your-ass common sense violation that legal remedies tend to make worse instead of better.

guard-of-terra 11y ago

I think you've got to be a reptiloid to defend "federal judges" and the police. Of all the people in the world they're the least vulnerable from huma perspective. We should probably check whether Orin Kerr has scales for skin. Or exists.

kelvin0 11y ago
What exactly do you mean by 'reptiloid'?
- guard-of-terra 11y ago
  A person that we can't even begin to understand. Philip Dick had an empathy test to detect androids - they did not show compassion towards cute animals in trouble. We have a similar problem here, if a person chooses to side with federal judges and the police versus public, we have an alarming creature on our hands.
  - krapp 11y ago
    Most people side with law enforcement at least some of the time, and many support the legal system and war on drugs on general principle. If that point of view is incomprehensible to you, then perhaps you're the one who needs a Voight-Kampff test.
- livingparadox 11y ago
  Probably this: https://en.wikipedia.org/wiki/Reptilians https://en.wikipedia.org/wiki/Reptilians Disclaimer: I do not believe in these, but I think this is what was being referenced.
- Gibbon1 11y ago
  Probably that there is something seriously sociopathic going on with police, prosecutors, and Judges that handle drug cases.
deleted 11y ago
[deleted]

kelvin0 11y ago

Nice, but going to a gun show and running guns across the border to Mexico does not seem to gather the same attention from law enforcement. http://journalistsresource.org/studies/government/criminal-justice/firearms-trafficking-u-s-mexico-border http://journalistsresource.org/studies/government/criminal-j... http://www.mcclatchydc.com/news/nation-world/world/article24746863.html http://www.mcclatchydc.com/news/nation-world/world/article24...

sp332 11y ago

I think Kerr's article was pretty good, but he does undersell the scope of the complaint. I thought the Hartes' were just trying to sue the officers personally for the bad policy. But their complaint was a lot bigger. From the judgement: Plaintiffs filed this action against various defendants alleging violations of 42 U.S.C. § 1983 for unlawful search, unreasonable execution of the search and excessive force in violation 2 of the Fourth and Fourteenth Amendments. Plaintiffs also assert a claim for municipal liability under Monell v. Department of Social Services, 436 U.S. 658 (1978). Finally, plaintiffs assert numerous state law claims against defendants, including trespass, assault, false arrest, abuse of process, intentional infliction of emotional distress and false light/invasion of privacy. This matter is presently before the court on defendants’ motions for summary judgment on all of plaintiffs’ claims. As explained in more detail below, defendants’ motions are granted in their entirety.

codyb 11y ago
The article stated they spent 25,000 on legal fees I believe. Their lawyers probably did the smart thing and tackled the issue on every front possible to see what would stick. As my dance instructor might have said... they seem to have taken a holistic approach (to their lawsuit | to dance) in an effort to achieve better results.
- jdmichal 11y ago
  That $25ooo actually went only to a court order so that they could receive a copy of the documentation about the case leading up to the search. The cost of the case to the Harte family was not mentioned, and I'm hoping it was done on contingency. > After spending $25,000 to get a judge to order the Johnson County Sheriff’s Department to turn over documents related to the search and investigation leading up to it...

hoodoof 11y ago

All drug raids are outrageous. The stupid war on drugs is tearing society apart, criminalising citizens, filling jails, ripping apart families, wasting police and court resources, throwing away tax on enforcement, missing out on tax revenue and funnelling billions to organised crime. All because people want to get high, which is (for most drugs) a personal choice health issue.

stoffie 11y ago
Exactly! Even if there was actually marijuana, how can you justify a no-knock raid for a victimless crime like smoking weed? I bet those police guys would shit themselves and call it a day if they were to raid an actual criminal organization, with automatic weapons and grenades
Vexs 11y ago
I think there's a difference between crimanal drug usage and illegal drug usage. I mean, if it's a warehouse with massive ammounts of drugs in-out, then yes, a raid makes sense. There are criminals doing illegal things in there. However, a drug raid with the same tools preformed on an apartment is insane, it's going to be a group of people doing illegal things. I will confess an error in my thinking, in that it's really hard to legally define what I describe, if not impossible. But, as the bible says (paraphrased, and this is probably the first time I've ever quoted it..) "I would not destroy the city if there is a single innocent inside of it." If you can't make the law work, than maybe it shouldn't be there.
- deciplex 11y ago
  > I mean, if it's a warehouse with massive ammounts of drugs in-out, then yes, a raid makes sense. There are criminals doing illegal things in there. Let's rephrase this a bit: > I mean, if it's a warehouse with criminals doing illegal things in there, then yes, a raid makes sense. Currently much of the drug trade is managed by criminals, and once you're breaking drug laws you might as well go ahead and break other laws e.g. human trafficking, extortion, etc. But that need not be the case, and it's not hard to imagine a warehouse with "massive ammounts [sic] of drugs in-out", where a raid would be totally unjustified and illegal.

ourcat 11y ago

TL;DR : Your freedom is an illusion.

bradleyjg 11y ago

An excellent reply and elaboration to the original article. Although I had my own qualms about Kerr's article (I commented here on HN when it was posted) having read his blog posts for ten years now I have a lot of respect for his erudition and even handedness. I look forward to his surreply which he promises to start working on in the comments section to the linked article.

rqebmm 11y ago
Man, I do love those few brief moments when the internet holds an actual debate. Too bad these poor people had to go through all the trouble for it.

jimrandomh 11y ago

This case centered around a field test, using a test kit which was highly prone to false positives and conducted by someone who wasn't trained how to use it. This was used to get a search warrant, which was executed by a SWAT team. A judge ruled that the police were not liable for relying on the faulty test. However, I think it's important to consider this in context. There have been multiple recent scandals in which US law enforcement was found to rely on supposedly-scientific evidence which was, in fact, nothing more or less than fraud upon the courts. (For example https://www.washingtonpost.com/local/crime/fbi-overstated-forensic-hair-matches-in-nearly-all-criminal-trials-for-decades/2015/04/18/39c8d8c6-e515-11e4-b510-962fcfabc310_story.html https://www.washingtonpost.com/local/crime/fbi-overstated-fo... and http://www.reuters.com/article/us-usa-crimelab-massachusetts-idUSBREA242FK20140305 http://www.reuters.com/article/us-usa-crimelab-massachusetts...). These scandals would have been easily prevented by the ordinary scientific practice of using control samples, so the fact that they weren't prevented indicates systematic bad practices. And there are widely-known deceptive practices still in use. For example, police bring "drug-sniffing" dogs with them, which bark whenever an officer cues them to, and courts accept this as though it were probable cause for a search.

anon4 11y ago

> They want to make 4/20 an annual drug raid event. So just make it like Halloween. Have the kids dress in police uniforms and go door to door with the actual officers searching every single house in the county. Have the adults give out marijuana-shaped candy. Say "pot or arrest" as you knock on the house. Have a competition at the end and declare the kid with the weightiest bag of "pot" the winner and give him/her a medal. Go all the way. It's good publicity you're after, not actual police work, after all.

hamiltonkibbe 11y ago

"As the law sees it, an officer can’t be recklessly indifferent to truth if he was never trained about, told about, or took the time to learn the truth in the first place." It's unfortunate that police are the only ones allowed to use the "ignorantia juris" defense.