Are your indoor tomato plants probable cause for an armed raid?

posted at 3:21 pm on April 1, 2013 by Mary Katharine Ham

One of the reasons I’m not keen on the drug war, particularly when its aim is to rustle up small-time marijuana growers and users, is that a lot of people are unnecessarily endangered in raids like this one. Not only does it sound like the Hartes were molested for no reason, imagine the fear and margin for error involved in an armed raid of a home with two young children in it. It’s not as if police SWAT teams have a particularly good record of restraint once they’re armed to the teeth and busting into a home. The stakes have been raised, the officers amped to expect a dangerous situation, and the results are too often tragic for homeowners, children, and dogs. (This paragraph, of course, cannot fail to include the fact that I respect law enforcement officers and the many risks they face to protect us, but that doesn’t mean we shouldn’t examine practices that make horrible mistakes more likely.)

The Hartes say they were targeted because they bought small amounts of indoor gardening supplies for tomatoes and squash. A raid on their home turned up nothing but veggies:

Two former CIA employees whose Kansas home was fruitlessly searched for marijuana during a two-state drug sweep claim they were illegally targeted, possibly because they had bought indoor growing supplies to raise vegetables.

Adlynn and Robert Harte sued this week to get more information about why sheriff’s deputies searched their home in the upscale Kanas City suburb of Leawood last April 20 as part of Operation Constant Gardener — a sweep conducted by agencies in Kansas and Missouri that netted marijuana plants, processed marijuana, guns, growing paraphernalia and cash from several other locations.

The details of the raid:

The suit filed in Johnson County District Court said the couple and their two children — a 7-year-old daughter and 13-year-old son — were “shocked and frightened” when deputies armed with assault rifles and wearing bullet proof vests pounded on the door of their home around 7:30 a.m. last April 20.

During the sweep, the court filing said, the Hartes were told they had been under surveillance for months, but the couple “know of no basis for conducting such surveillance, nor do they believe such surveillance would have produced any facts supporting the issuance of a search warrant.” The suit also said deputies “made rude comments” and implied their son was using marijuana.

A drug sniffing dog was brought in to help, but deputies ultimately left after providing a receipt stating, “No items taken.”

Radley Balko, formerly of Reason and now at Huffington Post, has a book coming out this summer on these kinds of incidents, often drug-war related. He’s doing a “Raid of the Day” feature leading up the book’s publication, to give you an idea of just how often things go wrong. You can pre-order “The Rise of the Warrior Cop,” here.

The drug war, and new technology used to fight it, often test the boundaries of police powers and our rights. Can infrared imaging be used to find possible grow houses? No, said SCOTUS in 2001. Can cops put a hidden GPS tracker on your car without a warrant? No, SCOTUS ruled in 2012. Is a drug dog alerting on one’s property probable cause? No, said SCOTUS this month, in a stereotype-busting alliance of the liberal and conservative wings of the Court:

The myth of a U.S. Supreme Court hopelessly divided along liberal/conservative lines took another hit today as Justices Antonin Scalia and Clarence Thomas split with their fellow conservatives to rule that police can’t use a drug-sniffing dog to establish probable cause for a search warrant.

The sniffing of the dog outside the homeowner’s door was itself an illegal search, the court ruled in an opinion written by Scalia, and thus it was prohibited under the Fourth Amendment guaranteeing citizens be secure in their homes and property…

Writing for the majority, Scalia said officers trespassed on Joelis Jardines when they approached his door with a drug-sniffing dog on a six-foot leash to investigate a tip Jardines was growing pot inside. The dog sat down, as he was trained to do in the presence of drug odors, and the officers used that evidence to obtain a search warrant.

Scalia said that while the Supreme Court has approved of some kinds of property searches, such as of open fields, “when it comes to the Fourth Amendment, the home is first among equals.” At the core of that amendment is “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion,” he wrote, citing an earlier decision.

English common law has long established the rights of salespeople, politicians, Seventh Day Adventists and even police to enter a person’s property and knock on their door, Scalia wrote in an opinion joined by Justices Ruth Bader Ginsberg, Sonia Sotomayor, Clarence Thomas and Elena Kagan. “But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else,” he said.

To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to—well, call the police.

In case you’re feeling a slight case of deja vu, it’s because the Court ruled quite differently and unanimously in February when it came to drug-sniffing dogs and vehicular searches, in a decision I think gives far too much leeway to cops.

While the Jardines ruling sounds like a decent limitation on police powers at first glance, some worry that by basing his opinion on trespass instead of privacy rights, Scalia missed an opportunity to protect citizens from invasion via all other sorts of technological surveillance. Reason‘s Steve Chapman compares Scalia’s reasoning in the infrared case (Kylo v. U.S.) to the dog-sniffing case (Florida v. Jardines):

“We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search—at least where (as here) the technology in question is not in general public use,” wrote Justice Antonin Scalia. You would think special sense-enhancing technology with four legs and a wet nose would likewise trample on privacy.

But for some reason Scalia, who wrote the court’s latest opinion as well, shied away from extending his impeccable logic. Instead, he said the dog-sniffing was out of line because it involved trespassing on private property. Once the officers ventured into the area owned by Jardines without his permission, the Fourth Amendment limited what they could do.

The trespass rationale worries Christopher Slobogin, who directs the Criminal Justice Program at Vanderbilt Law School. “If the next case involves a drug-sniffing dog smelling an apartment that abuts a public sidewalk, presumably Scalia would say there is no search because there is no trespass,” he says. “But the privacy invasion of the home would still be just as significant.” Plenty of urban residences are within a few feet of a sidewalk, making them vulnerable to an accusatory Labrador retriever.

Justice Elena Kagan agreed, in a concurring opinion. In her view, cops violate privacy rights “when they use trained canine assistants to reveal within the confines of the home what they could not otherwise have found there”—even if they do it from a public way.

Why does it matter? Because dogs are the least of the ways in which the government will eventually be able to monitor spaces that once afforded sanctuary to anyone who wants to be left the hell alone. Last year, the court said police needed a warrant to put a GPS tracking device on a man’s car because they “physically occupied private property”—the vehicle—”for the purpose of obtaining information.”

And, yes, this post has to do with food, too. When police powers interfere with fresh vegetables, you have crossed the line in my book, buddy.

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