Federal judge did not rule that drinking tea amounts to probable cause
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But Kerr misses the spirit of Balko's original article. Kerr is saying that the officers did not violate the rules of the game. Balko is saying the rules are absurd and the game needs to change. Both authors are correct.
Additionally, the original title reads: "Federal judge: Drinking tea, shopping at a gardening store is probable cause for a SWAT raid on your home". This is mostly correct. If the officers had not misidentified plant material, and if they had not been monitoring innocent shoppers, this incident would not have occurred. Only in the upside-down world of the drug war is it normal to send government agents armed to the hilt to invade a private residence and hold the occupants at gunpoint, all based on flawed and flimsy evidence.
Of course, we also prosecute marijuana offenses under narcotics law, despite the fact that marijuana is not a narcotic. Go figure.
In my personal experience, nothing's changed in Washington safety-wise. Only difference is that sometimes you'll catch the scent of a stinky plant someone's lit on fire.
As long as marijuana is illegal at the Federal level, it isn't legal in any state of the Union.
People can think it's legal. People, even law officers, can act as if it's legal. However, all it takes is one Federal case and all of a sudden the law against it actually matters, and on that day saying it's legal in your state won't amount to diddly squat.
State-level legalization efforts are like straw polls: A way to see which way the hot air is blowing. A way to see what the public as a whole thinks of marijuana laws. They are not, however, as binding as people seem to imagine.
1. Are you suggesting that states will start enforcing federal drug laws if a resident in a legal state is brought to court?
2. Are you aware that the DEA has done countless raids in California?
3. Do you think that this particular incident and the concerns it raises is a local law enforcement issue, or do you imagine that the DEA operates by going through people's trash for tea leaves?
Still, there is absolutely a need for reform on a federal level, even if it's just a law that provides an exception for states with a legalization regime. Otherwise I think you're mostly right. Prosecutorial discretion is the only thing that prevents the feds from swooping in at any given moment.
This article from the Atlanta Journal and Constitution shows just how out of control policing has become, http://www.ajc.com/news/news/georgians-shot-police-unarmed-o...
Personally I think a lot of Judges came of age during the Dirty Harry era. We won't see much change until death and senility removes them from office.
So then who is responsible when police are using equipment that is not reliable? Surely some un related third party performs tests on all the testing equipment, and it must be a accurate to a certain degree before it's approved for use...?
If that doesn't happen, why not?
See also breathalyzer, "drug detecting" dogs, field sobriety tests, visual estimation (without radar) of traffic speed, etc.
Here is another that confirms the same thing happens upon air exposure to certain methamphetamine and marijuana field tests[0].
Point is that this abysmal false positive rate is that it's too convenient and the incentives are too high when it comes to maintaining an inexpensive shield for officer error / instant probable cause compared to court costs.
[0] https://www.themarshallproject.org/2015/04/02/jolly-ranchers...
The other thing I would note is that qualified immunity and associated doctrines, which are near insurmountable obstacles to civil justice against police officers, are judge created law that can, and should, be sharply reined in by Congress.
Just curious, I know nothing about qualified immunity, what is it and why is it a problem?
Among many other things you must show that the right in question was "clearly established". But the courts have lately been requiring a case with a nearly identical fact pattern in order to find that a violation of a clearly established right. Worse yet, they have been taking the questions out of order and deciding that a right is not clearly established without deciding that there is a constitutional right in the first place. Which in turn means that that case can't be used as precedent for someone else.
I'm no pothead, but I think I could tell the difference between wet tea leaves and pot just from the smell.
What happened to "Protect and Serve". When did it become "Spy and Horas".
Why has judging become about convicting and not at all about justice. Why can the judge not say "I see ignorance and ambition" (as we all do). Think of it like manslaughter not murder. (Like you drive on bald tire, one blows, you run over a pedestrian. You didn't mean to kill them but you're still responsible.)
I smell a case where the couple could sue the drug testing company for not informing more about false positives. Or, if they do, the police for not reading them.
How does the deputies claiming they had "no knowledge", were "not aware" or have had "thousands" of other tests used with no issues absolve them? How is the burden of knowledge not squarely on their shoulders as they are the agents administering the tests and submitting them as evidence to the court?
http://www.cacj.org/documents/sf_crime_lab/studies__misc_mat...
The judge's ruling ( https://ecf.ksd.uscourts.gov/cgi-bin/show_public_doc?2013cv2... ) hinges on his statement on page 13 that "a reasonably trustworthy field test that returns a positive result for the presence of drugs is a sufficient basis, in and of itself, for probable cause."
Given the established accuracy of the field test used, no sane and honest person would ever claim it is "reasonably trustworthy", making the judge's claims moot.
I do appreciate the additional information about the situation that was covered in this article, though.
"There are only two possible reasons for a police department to be using a test like that [with a known 70% false positive rate]. The first is ignorance, but of a degree and nature that is quite scandalous. The second is to commit fraud upon the courts, by claiming to have evidence of drug possession where no drugs exist. In light of the FBI hair test scandal (https://www.washingtonpost.com/local/crime/fbi-overstated-fo...) I think the latter explanation is fairly likely."
[1]: https://ecf.ksd.uscourts.gov/cgi-bin/show_public_doc?2013cv2... (pdf)
"In fact, as plaintiffs point out in their submissions, Deputy Burns testified that, at the time he tested the plant material he discovered in plaintiffs’ trash, he had no knowledge that anything other than marijuana could test positive on a marijuana field test kit and that he was “not aware” of the possible occurrence of false positive test results. Deputy Blake’s testimony on those issues is substantially the same. Moreover, Sheriff Denning testified that, since he came to the Johnson County Sheriff’s Office in 1978, the Office has conducted “thousands” of field tests and the only false positive results of which he is aware are the results at issue in this case."
Apparently the judge is under the impression that this justifies his ruling, rather than damns both him and the entire police department.
I'd imagine most cops know what marijuana smells like and use the field test to back up their correct observations. I imagine they do very little testing of other random things to see what causes a false positive. We need better statistical education for the legal profession.
Actually, police and justice should be, but when they are not at least we should hope that journalists are.
So maybe technically the original title about the SWATing because you drink tea was not 10000% accurate. Does not matter. They were swatted because they drank tea and grow hydroponic stuff -- no need to invoke "insight"; this is just a fact; and this suffice largely in itself to illustrate there is a big problem in how police do their work.
He defends the court's ruling without challenging the fact that the court is relying on two known sources of misinformation while making its decision.
It is wrong -- and Kerr must know that -- to defend logic and conclusions when one knows the starting assumptions are wrong.
We are already there.
It's easy to bar an individual whose IQ is too low, but it's a trivial matter to fake having a lower IQ than you really do.
Obviously no recompense for the plaintiff in this case, but now that the cat's out of the bag ... if you really want a job that only wants to recruit idiots, you know how to get it.