Presumed Guilty: It's How Police Get To Stage Those Fun Swat Raids On Families Actually Guilty Of Nothing
We need police to protect us from people who try to injure us or take our property or our lives.
But our rights are increasingly eroded and violated by police going after crimes that should not be crimes -- like choosing to grow certain kinds of plants -- and by presuming citizens "guilty" because, wild guess, they could be doing something illegal.
Radley Balko writes in the WaPo about the "wet tea leaves" drug raid -- a case in which a family had their home raided by a tactical team.
Evidence of their "guilt" as pot growers?
Oh, well, the fact that the husband shopped at a hydroponic gardening store. And wet loose tea leaves in the garbage that later (wrongly) tested positive for pot.
Yes, instead of protecting people from actual crime, the cops are rooting through people's trash to find their kitchen leavings, hoping to find them guilty...of something.
As Balko puts it about the thinking here on the gardening supplies:
It's important to emphasize that it was Harte's completely legal, completely innocuous purchase of gardening supplies to grow tomatoes and vegetables with his son that made him a suspect in the first place. Prior to that, he was unknown to the police. He had done nothing else to arouse suspicion. This is a major source of a lot of the outrage about this case. If Harte had never gone to that particular store, or had bought the supplies at Walmart, there's no trash pull, no alleged false positives on the field tests and no raid.Moreover, Harte was with his children, then ages 6 and 12, when he went to the store. I suppose that there are some marijuana growers out there who might take their young children with them when they buy growing supplies. But maybe, just maybe, the presence of Harte's kids suggests he wasn't the sort of criminal worthy of a tactical team.
But that isn't how this investigation was conducted. Everyone observed by the officer staking out this store had his or her license plate recorded and turned over to local police. There was no effort to distinguish innocent customers from criminal suspects. (If there was, it's hard to see what Harte did to put himself among the latter.) The officer was in the parking lot, so there was no effort to even make distinctions based on what the customers had purchased. Even here, Harte was seen carrying a "small bag," which presumably wouldn't be large enough hold equipment for a major operation. His mere presence at the store made him a target of investigation.
One more point here. Dep. Burns notes in his affidavit that he knows "from personal past experience," this hydroponic gardening store sells equipment that customers use to grow marijuana. I'm sure that's true. But so do Walmart and Home Depot. As we'll see later in this post, of the hundreds of names Sgt. Wingo collected, the entire "Operation Constant Gardener" 2012 operation turned up less than a half dozen marijuana "grows." And all but a couple of those were either inactive, or had less than 10 plants. You'd probably find just as high a proportion of marijuana offenders by taking down license plates at Bonnaroo, or at a Bernie Sanders rally.
And get this:
The Hartes had to pay $25,000 in legal fees just to get a court to order the sheriff to turn over the documents related to their case. As I noted in a previous post, because of the Hartes, the Kansas legislature has since revised the law, but the new version is only marginally better. The targets of these investigations can now obtain documents related to their case without a court order, but police agencies can still deny open records requests from media outlets, watchdog groups, or attorneys interested in researching patterns or practices of possible misconduct.
And what this was really about? Not pot farming but press release farming:
The 4/20 publicity stunt"Operation Constant Gardener" was essentially a publicity stunt by a slew of law enforcement agencies in Kansas and Missouri. Sheriff Denning, along with other law enforcement officials across the state, had pre-planned press conferences on the afternoon of April 20th, which of course is the unofficial holiday of pot smokers. The press conferences were to announce all the busts and arrests produced by the operation. The public information officer for the Johnson County Sheriff's Department had already pre-drafted a press release under the heading ""Law Enforcement Celebrates 420 with Multitude of Arrests."
As somebody called hoodoof posted at HackerNews:
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.
While outraged - practically anything which gives off light can be used to grow plants, let's arrest everyone at Home Depot for aiding and abetting - let us not forget the fixed law of cause and effect: Changing the law prior to the activity would not only have removed a statute from the books, but disarmed those who use breaking the law as an excuse to increase and abuse their powers.
If only the average pothead cared about the law a tenth as much as he did about getting high, this wouldn't be happening. Ask Peter Friedman.
But it's too much trouble.
Radwaste at January 12, 2016 9:57 PM
One point that needs to be noted: The wet tea leaves were "pot" based on the policeman looking at them, when they were actually tested at a crime lab, they didn't have THC, and the crime lab said that they weren't pot. The policeman later testified that his experience in identifying pot came from watching YouTube videos. You only find this out by reading the whole article, and I've wondered if the media was intentionally burying that point, instead of making it the lead. As a result of the lawsuit, the police procedure was changed to require crime lab results, rather than "looking".
Steve at January 13, 2016 3:52 AM
I was under the impression that they used a field test kit to "test" the "suspicious plant matter" and that it indicated a false positive?
Of course, this is 8 fucking months after the trip to the garden center, while the cultivation cycle is on the order of 90 days. So, if they had been growing something, they would have already harvested their crop, probably a second crop, and would have been nearing the end of crop cycle 3.
If you've waited that long, you can wait a day or two for the lab to get back to you.
I R A Darth Aggie at January 13, 2016 6:21 AM
Bear in mind, that false positives from field test kits are not a bug, but a feature.
Read the whole story - all of the officers expressed themselves shocked! Shocked, I tell you! at the mere suggestion that a field test kit result could be incorrect. None of them had ever heard of such a thing - they all believed as an article of faith that their field test kits gave a true result 100% of the time.
Of course they did.
A field test kit that returns a high rate of false positives creates more probable cause for further enforcement activity - as we see here. At this point, it's not about right or wrong anymore, it's about overtime, budgets, asset forfeiture and banner headlines. Again, as we see here. It's in the interests of a police agency to have false positives - you should not be surprised that it's exactly what you get.
I would wager that a statistical analysis of commercially-available field test kits by rate-of-false-positives vs rate-of-reorder-by-police departments would yield interesting results. I'll bet that the most-popular field test kits - the ones they buy the most - are also the least-accurate, and that the accuracy always defaults to the highest rate of false positives.
IRA DA wrote:
'If you've waited that long, you can wait a day or two for the lab to get back to you.'
You don't understand - they don't want the lab to get back to them. Why would they? The lab might come back with an answer they didn't like or want - No drugs found - which would reduce their activity. See above. 'Evidence' confirming the case and ensuring overtime, budgets, AF and headlines is always accepted. Anything which might call that evidence into question - a better test, another sample, other evidence - is avoided as unwelcome.
Scientific tools like field test kits are crying out for rigorous independent testing for accuracy, by a private body like UL. And judges and prosecutors should be forced to demand the most accurate scientific evidence possible before authorizing enforcement activities. But it will never happen. The CJS Leviathan runs on this sort of thing, and relies on it for funding and continued employment. Why do you suppose it is that all rates of crime have been falling steadily for 30 years, and yet the number of police officers has not declined? They're finding and making work for themselves - as we see here.
llater,
llamas
llamas at January 13, 2016 8:36 AM
You don't understand
No, I understand all too well. Why didn't they just say they heard calls for help when they were sorting thru the trash, then kicked in the door, and found drugs that they dropped.
I guess they forgot to bring the plants with them...
Just like when the K9 signals after receiving the secret hand signal from the dog handler that "yes, please show me that you found something".
I R A Darth Aggie at January 13, 2016 9:29 AM
The problem is too many laws, rules and regulations. Oh, and the need to do something.
Dave B at January 13, 2016 10:48 AM
And then there's the all-purpose "I smelled marijuana"...
Cousin Dave at January 14, 2016 7:44 AM
IRA: "I was under the impression that they used a field test kit to 'test' the 'suspicious plant matter' and that it indicated a false positive?"
That's what they said they did. They had no evidence that it was actually done other than the cop's word. Personally I don't believe they ever used any test. As dishonest as they were about so many other things in the case I don't think they'd bother to run any test when it's easier just to lie.
IRA: "If you've waited that long, you can wait a day or two for the lab to get back to you."
They didn't have time to wait for lab results because part of their media grandstanding involved conducting their raids on a certain day - April 20 (i.e. 420)
Also, cops working on the case said that sending evidence pulled from someone's trash to a lab wasn't the department's policy, wasn't common practice, and had never been done in the past.
Tests used to screen for drugs - field tests and urine drug tests - are "presumptive positive". That means it pretty safe to assume that if the substance being tested for is present the test will be positive. And if the test is negative the substance being tested for is not present.
It does not mean that if the substance is not present the test will be negative. All kinds of different things will turn those tests positive. False positives are very common. False negatives are very uncommon.
Ken R at January 14, 2016 5:26 PM
Leave a comment