WaPo: 10th Circuit grants narrow victory to family raided by a SWAT team over loose leaf tea by Radley Balko. The case is Harte v. Bd. of Commissioners, 2017 U.S. App. LEXIS 13399 (10th Cir. July 25, 2017), over a raid because loose tea found in a trash pull with a false positive field test (which can happen 70% of the time) combined with a visit to a hydroponic store that made the police suspicious. It cost them $25,000 just to litigate getting the affidavit for the search warrant, which should have been a public record.
I can’t summarize this better than Mr. Balko:
Here’s how the court ruled:
● The court unanimously dismissed all claims against the state trooper who tipped off the Hartes to local police. The judges found that the trooper’s actions, while perhaps troubling in that they implicated people for shopping at a perfectly legal retail store, weren’t a violation of the Fourth Amendment.
● By a 2-to-1 margin, the court dismissed the Hartes’ claim that either the sheriff’s department or the county should be held liable for failing to properly train the police officers who conducted the investigation and the raid.
● The Hartes argued that given the weak evidence of wrongdoing and the utter lack of corroborating investigation, the SWAT tactics were an unreasonable use of force. Again by a 2-to-1 margin, the court found that while SWAT tactics themselves may have been an unreasonable use of force, in order to get past the qualified immunity afforded to police officers, the Hartes would have to show that not only were the tactics unreasonable, but also that there was clearly established law at the time stating that the officers’ tactics were unreasonable. One judge found both. One judge found that the raid was unreasonable but there was no clearly established law stating as much. Another found no clearly established law and so decided that she didn’t need to bother to determine the reasonableness of the raid itself. In the end, the Hartes’ claim was dismissed.
● The Hartes also argued that it was unreasonable for the deputies to hold them for two hours under armed guard when the deputies should have known within minutes that they had made a mistake. Here, one judge ruled that this was a violation of the Hartes’ Fourth Amendment rights. Another ruled that it wasn’t. And the third ruled that it was but that there was no clearly established law stating as much. Therefore, the Hartes’ claim was dismissed.
● The Hartes argued that the police violated their children’s rights in particular, by holding them under armed guard for two hours, despite finding no evidence of criminal wrongdoing. (A neighbor had approached and asked if she could take the children to school. She was denied by police.) Here, too, one judge ruled for the Hartes. One judge ruled that there was no violation — on the curious argument that the deputies weren’t pointing their guns at the children but rather were holding their guns near the children in a fashion ready for immediate use. This apparently makes all the difference. Finally, the third judge ruled that there is no clearly established law on the point, so she needn’t bother to determine whether holding the children under armed guard constituted excessive force.
● The Hartes also made several claims under Kansas state law. For the purposes of this post, I’d like to stick with their claims under the U.S. Constitution. But it’s worth noting that the court did allow some, but not all, of the Hartes’ state claims to move forward.
● The Hartes made numerous arguments that the search warrant itself was illegal, thus making the search of their home unreasonable. They cited, for example, the lack of corroborating investigation — the police did no surveillance, no background check, no controlled buy. A background check would have revealed that the Hartes had no criminal record. It likely would have revealed that they are retired CIA employees who had security clearances. The police also didn’t check the Hartes’ utility records to see if they were using inordinate amounts of water or electricity. (A check would have shown that they weren’t.) They pointed to the sloppiness of relying on the field tests and the fact that wet tea leaves of the variety Addie Harte used look and smell nothing like marijuana. Once again, on all of these claims, one judge ruled for the Hartes, while another ruled against them every time. The third judge ruled against the Hartes on every claim but one. She found that the Hartes had presented credible evidence that the officers may have lied about the field test results. So on their argument that the search warrant was invalid, the Hartes lost 2 to 1 on every claim but that one, which they won 2 to 1.
Then on Friday: WaPo: ‘We’ll never be the same’: How a hydroponic tomato garden inspired cops to raid a family’s home (“‘You take the Constitution, the Bill of Rights, all the rights you expect to have – when they come in like that, the only right you have is not to get shot if you cooperate,’ Harte told The Washington Post this week. ‘They open that door, your life is on the line.'”)
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)