Why the ‘wet tea leaves’ drug raid was outrageous – The Washington Post

Source: Why the ‘wet tea leaves’ drug raid was outrageous – The Washington Post, by Radley Balko

RE: Federal judge: Drinking tea, shopping at a gardening store is probable cause for a SWAT raid on your home – The Washington Post, by Radley Balko

From the Hartes’ perspective, the headline covers precisely what happened to them. They were raided by a tactical team. The only things they did to cause that raid were shop at a hydroponic gardening store and drink loose-leaf tea. Those two actions are why the police began to investigate them (in a half-hearted sort of way), conducted field tests on the tea for which the officers had little training, and procured a search warrant. Those two actions are why a local judge signed off on the search warrant. It’s why a raid team was sent to the Harte home. And after the fact, it’s why a federal judge determined that the police had probable cause for the search, that the use of a tactical team was reasonable under the Fourth Amendment, and that the police didn’t violate the rights of the Hartes or their children.

To be clear, I don’t think Judge Lunstrum’s ruling was wrong on the law, nor did I state or imply as much in the post. … It is the law itself that is the problem.

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. … Moreover, Harte was with his children, then ages 6 and 12, when he went to the store. … maybe, the presence of Harte’s kids suggests he wasn’t the sort of criminal worthy of a tactical team. … 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.

They could wait eight months after Robert Harte visited the gardening store to start investigating him, but they couldn’t wait a few more days for the crime lab results, or to do some corroborating investigation.

In his deposition, Burns admitted that he had received no formal training and had no personal experience in investigating THC extraction methods. When asked about the “law enforcement training and experience” he referred to in the search warrant affidavit, he admitted that this training consisted entirely of watching a few videos on YouTube. He said he watched these videos on his own time, and never reported or documented his viewing them. So the Hartes were raided by a SWAT team because some wet tea leaves the cops found in their trash literally looked like something a cop once saw on the Internet.

If a police officer is going to ask a judge to defer to the officer’s “training and experience” — which is essentially asking the judge to trust the officer’s observations and conclusions in the absence of other evidence — it doesn’t seem unreasonable to ask that the officer actually have accurate education and training about the tools he uses over the course of an investigation, particularly when ignorance about those tools could result in terrifying raids on innocent people — which can and have resulted in injury or death.

For example, why is it too much to ask that the field test which a drug cop is relying upon to obtain a warrant for an potentially violent tactical raid not have an error rate as high as 70 percent? The error rate for this test is especially high for “kitchen botanicals,” a bit of knowledge that would have been especially pertinent to know, given that the material was found in the Hartes’ kitchen trash. You could even argue that not knowing these things ought to be be considered reckless. Burns and Dep. Edward Blake (who conducted the other positive field test) testified that they had no idea it was even possible for a field test to return a false positive result.

Dep. Burns later admitted in depositions that despite the reference to his “training and experience” on the warrant affidavit, he actually had no formal training in the particular brand of field test he used in the Harte case. He said he just assumed one would “follow the directions.” But he didn’t even do that. … the manufacturer of the test explicitly cautions against relying solely on the field test to establish probable cause. … The Hartes’ memorandum opposing the defendant’s motion for summary judgment also suggests that both Burns and Reddin didn’t even understand how the test works. … Reddin was the supervisor of this investigation. The supervisor for a major drug operation wasn’t aware that the field tests his officers were using have high error rates

Worse yet, in the bizarro world of qualified immunity, the officers actually benefit from their ignorance about false positives. Lungstrum points this out in his opinion. 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.

There has to be a limit to this practice of giving police officers immunity for their ignorance.

Source: Why the ‘wet tea leaves’ drug raid was outrageous – The Washington Post, by Radley Balko