
Federal judge did not rule that drinking tea amounts to probable cause - selleck
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/12/30/no-a-federal-judge-did-not-rule-that-drinking-tea-and-shopping-at-a-gardening-store-amounts-to-probable-cause/
======
leepowers
I agree with Kerr's analysis of the legal issues at hand. He knows far more
about the law than I do, so I must defer to his expertise. He is technically
correct. And it's good to have an accurate analysis of current law.

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.

~~~
seandougall
Flawed and flimsy evidence of a nonviolent offense, no less.

Of course, we also prosecute marijuana offenses under narcotics law, despite
the fact that marijuana is not a narcotic. Go figure.

~~~
Shivetya
There is no justification for SWAT teams being used to chase down non violent
suspects. It is just part of the over militarization and RAMBO mentality of
too many police forces. When the cops kill more Americans than terrorist it
screams "you have a problem".

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...](http://www.ajc.com/news/news/georgians-shot-police-
unarmed-or-shot-back/nppPP/)

~~~
Gibbon1
I think there is an often overlooked proportionate argument. Which is not only
should punishments be proportional to the crime committed. But enforcement
efforts should be as well. Personally I don't see why the courts should shield
the cops from liability when they are obviously being sloppy. Seriously if
cops going to bust down someones door and point guns at them then they need to
dot their i's and cross their t's.

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.

------
grecy
> _The judge ruled that officers cannot be held personally liable for
> searching a home with a warrant based on two positive field tests for
> marijuana... at least when the officers did not know about the risks that
> the field tests results were false positives._

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?

~~~
x0x0
You're misunderstanding reality. The simple fact is that these tests are not
designed to detect drugs. They're designed to give the police a pretext to
search you, whenever they wish to do so, while pretending to obey the law. How
do we know this? If they were designed to detect drugs, the fact that they're
very poor at doing so would be seen as a problem. It isn't. Therefore, they're
designed for a different purpose.

See also breathalyzer, "drug detecting" dogs, field sobriety tests, visual
estimation (without radar) of traffic speed, etc.

~~~
fucking_tragedy
The article itself mentions the drug tests used in the field coming up as
positive for cocaine through just air exposure.

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...](https://www.themarshallproject.org/2015/04/02/jolly-ranchers-
sage-and-breath-mints#.DCY0Bm7lI)

------
bradleyjg
Keer's article is uncharacteristically misleading. He twice implies that the
police officers were at personal risk of having to pay damages. Though this is
a fiction that the courts gleefully embrace it is nonetheless a fiction.
Indemnification of police officers is universal, even in cases of willful
misconduct and even in cases where written law suggests otherwise.

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.

~~~
cglace
"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?

~~~
bradleyjg
I took an entire class on §1983 in law school, I'm not going to be able to do
justice to it in a comment. But the long and short of it is that there are a
series of judge made doctrines that put a giant thumb on the scale when you
sue a police officer for violating your constitutional rights.

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.

------
oneeyedpigeon
Imagine how much time and money would be saved if we didn't all have to spend
our hard-earned wages funding ridiculous witch-hunts like this. Officers
staking out a house and rifling through the owner's rubbish for a plant? It's
OK, though, because the plant was one kind of plant, not another kind.

~~~
mc808
I agree with your sentiment as far as marijuana is concerned (and really all
drugs), but the "it's just a plant" argument isn't solid in general. For
example, if the police had evidence of a surreptitious castor bean grow room,
and evidence of something being chemically extracted from the plant material,
I think that may be enough to justify a search warrant to determine what's
going on. Of course that evidence would have to come from someone capable of
telling the difference between castor beans, tea leaves, their ass, and their
elbow.

------
Johnny555
Well, that is kind of what the judge said by ruling that the police don't have
to understand the limitations of their tests. So if a test has a false
positive on tea, then when they want to bust a tea drinker, they only need to
pull out that test and claim they weren't aware of the limitations of the
test. They can keep a whole suite of tests in their suitcase, ready to pull
out the one that has the most likelihood of getting a positive result for the
suspect that they "know" did it.

I'm no pothead, but I think I could tell the difference between wet tea leaves
and pot just from the smell.

------
mgrennan
Mr. Kerr, your story is about the Law not Justice. The first story was about
Justice and how the couple didn't get any. Both are good.

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.

------
decisiveness
> There is no basis to conclude, then, that Deputy Burns or Deputy Blake
> should have known that the field test kits they were using tended to yield
> false positive results.

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?

------
dmatthewson
Here is "False Positives Equal False Justice" which analyzes the particular
drug field tests used, showing they have an enormous false positive rate.

[http://www.cacj.org/documents/sf_crime_lab/studies__misc_mat...](http://www.cacj.org/documents/sf_crime_lab/studies__misc_materials/falsepositives.pdf)

The judge's ruling ( [https://ecf.ksd.uscourts.gov/cgi-
bin/show_public_doc?2013cv2...](https://ecf.ksd.uscourts.gov/cgi-
bin/show_public_doc?2013cv2586-340) ) 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.

------
PhasmaFelis
"Federal judge did not rule that drinking tea amounts to probable cause." I
read the article, and yeah, he pretty much did.

~~~
eric_h
Yeah. This article seems really to just be saying that the reality was more
nuanced than the headline of the original article (which I stumbled upon and
posted here on Monday). But of course had you continued reading past the
headline of that article, you would have drawn the same conclusion.

I do appreciate the additional information about the situation that was
covered in this article, though.

------
greenyoda
The HN discussion of the original article being referred to by this one can be
found here:
[https://news.ycombinator.com/item?id=10803680](https://news.ycombinator.com/item?id=10803680)

~~~
lisper
And the top-rated comment there, by jimrandomh, is still the first and last
word on the matter as far as I'm concerned, even in light of the WashPo's
editorializing:

"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...](https://www.washingtonpost.com/local/crime/fbi-overstated-fo...)) I
think the latter explanation is fairly likely."

[https://news.ycombinator.com/item?id=10804016](https://news.ycombinator.com/item?id=10804016)

~~~
ksenzee
The key words there are "police department." I agree 100% that a police
_department_ should be held accountable for using a test that appears to be
about as useful as a Cracker Jack decoder ring. But this case was about the
officers' personal liability. As the article points out, the legal question
here was "Could a reasonable officer believe he had probable cause?" Whoever
chose this particular test should be held liable—not the people who got it off
the shelf and followed the directions on the box.

~~~
alricb
But I would note that the plaintiffs are suing the "Board of Commissioners of
the County of Johnson County, Kansas et al." [1], not officers Joe Blow and
Bob Smith.

[1]: [https://ecf.ksd.uscourts.gov/cgi-
bin/show_public_doc?2013cv2...](https://ecf.ksd.uscourts.gov/cgi-
bin/show_public_doc?2013cv2586-340) (pdf)

------
kevinpet
> 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.

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.

------
Zigurd
Some Volokh asshat excusing authoritarianism for... nuances. Yes, the effect
of the ruling was to make tea-drinking probable cause. Yes, when no-neck cops
sniff and poke at plant matter, they are likely to be wrong, and biased in
their wrongness. Yes, all these asshats should lose their careers in law and
law enforcement.

------
xorblurb
Journalists should be educated on effects of false positives even at low proba
(which is not even the case here) on random investigations.

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.

------
kelnos
Point completely missed: the officers should have known that the field test
they used had a high false-positive rate, and should have taken a sample back
to be tested by more reliable means. Either they're lying about being ignorant
of the fact that the test is unreliable, which should be grounds for throwing
those claims away when testing if the warrant showed probable cause, or they
actually were ignorant of the test's unreliability, in which case they (or the
person in their department who approved the test for use) are recklessly
incompetent.

~~~
such_a_casual
I completely agree. The federal judge did in fact rule that "drinking tea and
shopping at a gardening store amounts to probable cause" when he made this
ruling. First of all, there is no reason for these police to be relying on
field tests when conducting a SWAT raid which was planned and calculated weeks
in advance. Secondly, as you pointed out, the judge ruled that these police
are in no way responsible for ensuring that there's any reason to believe
these tests work at all. A user in the other thread pointed out that problems
with these tests have been known about for years. What evidence did these
police have these tests actually detect drugs, as opposed to air? What is to
prevent the police from using dowsing sticks to determine who should be
raided?

------
nv-vn
I don't think these details matter as much as the fact that these police
departments are wasting their time and resources conducting raids against
people who they suspect of owning marijuana. Surely they could put their time
and money to better use, for example training police officers not to react
violently/kill unarmed (mostly black) kids.

------
gohrt
Even with the Update at the end, Kerr misses the point. The police are (a)
using a tool that is generally known to be broken, (b) obviously lying.

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.

------
kevin_thibedeau
Isn't there a bigger issue that the police are tracking lawful customers of a
legal business and rooting through their trash with no probable cause.

------
DannoHung
I look forward to Police departments hiring adults with learning disabilities
so they can use qualified immunity to deliver grossly improper warrants.

~~~
yaur
[http://abcnews.go.com/US/court-oks-barring-high-iqs-
cops/](http://abcnews.go.com/US/court-oks-barring-high-iqs-cops/)

We are already there.

~~~
DiabloD3
That link returns 404.

~~~
yaur
[http://abcnews.go.com/US/court-oks-barring-high-iqs-
cops/sto...](http://abcnews.go.com/US/court-oks-barring-high-iqs-
cops/story?id=95836)

Bad copy/paste

