Rotten Tomato Raid by Pullman Police:
This is a good reason not to use grow lamps to grow tomatoes in your closet. [LvIP]
[Note to local officials: That water pipe in my office was a just prop for a recent law school event on the "Bong Hits 4 Jesus" case. Honest.]
Is it? Or is it a good reason not to live in Pullman, or Washington State, or the U.S.? Or maybe it's a good reason not to grow fruits or vegetables, or have an interest in agriculture?
Or maybe, just maybe, it's a good reason to end a ridiculous drug war.
But it isn't. The officers' alleged probable cause was that some people they had never met before said that they were in an apartment and saw a grow lamp in a closet and what they thought was the smell of burnt marijuana. Also, the people in the apartment were nervous. But no marijuana was actually reported to have been seen, and there was no evidence that the person who smelled marijuana actually knew what it smelled like (or that it was coming from inside the apartment). That's obviously not probable cause.
As I see it, the story here is that police officers and the judge who signed the warrant goofed; they don't seem to understand the Fourth Amendment's probable cause requirement.
Are you saying that if the police had found marijuana plants, under these facts, that a court would then dismiss the case? If so, I'd like to see a case where that's happened.
As I see it, the story here is that we, as a society, have come to expect them to goof in this manner, and have learned to live with it. What should be outrageous is becoming or has become a normal fact of life. As Balko says in the story:
"Then there is the long history of people wrongly raided for the crime of merely owning plant growing equipment or, even worse, merely shopping at stores that sell plant growing equipment that could be used to grow marijuana (of, for that matter, just about anything else). Here's just one example. Here's another."
"These military-ish raids on small-time marijuana offenders, and the mistaken raids that go with them, have been going on for 20 years."
It's one thing to say that this is a police goof, but how many goofs does it take before we see it as part and parcel of the way the drug war is conducted? What else does it mean to remark, as you did: "This is a good reason not to use grow lamps to grow tomatoes in your closet," if not that this kind of crap is all too feasible an outcome of home gardening? I also join in Duffy Pratt's skepticism that this good would be legally acknowledged had marijuana plants been found.
I certainly don't expect police to goof like this, and I don't think it has become a normal fact of life. Indeed, it's newsworthy enough that we're reading about it and discussing it.
Of course, part of that is because the police didn't find the evidence that they were looking for, which is relatively rare. My recollection is that as a general matter, police with a warrant will find evidence in the scope of the warrant about 90% of the time. One very interesting issue that I don't know the answer to is whether that percentage is higher or lower in narcotics cases than in other cases. Do you happen to know the answer?
As for 'my' remark that "this is a good reason not to use grow lamps to grow tomatoes in your closet," I really can't say what it means: It wasn't my remark.
"I certainly don't expect police to goof like this, and I don't think it has become a normal fact of life. Indeed, it's newsworthy enough that we're reading about it and discussing it."
As you acknowledge, part of the newsworthiness is due to the police's not having found (and then not subsequently having planted) the evidence they were looking for. I have no idea how common that is. Part of it is, in my opinion, due to Radley Balko's tirelessly drawing attention to a problem that I appraise, contrary to your point, to be all too common -- at this point basically normal in our society. I'm with Balko here: "military-ish raids on small-time marijuana offenders, and the mistaken raids that go with them, have been going on for 20 years", contrary to your opinion.
Sorry for having mistakenly attributed your conspirator's point to you. But I think the plain reading of your conspirator's remark is that this is an outcome that anyone watching drug war news with attention might have seen as all too likely. That is, we expect that ordinary citizens in a rented home or apartment doing home gardening in a closet with a grow lamp would live with the reasonable fear that it might bring a military-style raid upon them due to police who aren't too careful about probable cause. That is a fact of life in many places in the society we live in.
It seems like we're both trying to fill in an empirical pizture here, one that is pretty hard to get a handle on.
When peaceable Americans are attacked in their own homes by armed assailants, do they have a right to defend themselves?
Do peaceable American citizens really have a civic duty to go peaceably to prison? At what point does that obligation end?
Would the Civil War Against Americans escalate or end if Americans behaved as those in the Warsaw ghetto did?
it has nothing to do with the drug war as a whole, and whether it's a "good thing" (personally, i don't even think marijuana should be illegal).
from what i have read, they did not have probable cause. they, and the judge, had neither the training, nor the common sense apparently, to recognize that.
it is also irrelevant whether or not marijuana was found. what is relevant is - was there probable cause for a search warrant? the answer is - no
can you have probable cause and not have drugs? of course
can you NOT have probable cause, and yet there is drugs? yes
it's not a results based metric.
Unfortunately, there have been a number of cases of mistaken evidence, wrong address, etc. where citizens defended themselves against what was apparently a criminal home invasion by thugs (read: undercover police dressed as thugs, who neglected to yell "police!" as they broke in.) and came out the losers in the ensuing uneven gunfight.
So it's hard to recommend self defense in such circumstances, but then again, what if the "undercover police dressed as thugs" are really thugs? Not any easy situation to make suggestions about!
And then, even if the police mistakenly break in your door, will the city pay for its repair? Right...
As for Mr. Lyman's comment invoking undercover unannounced entries, I'd love to know the actual stats, and how often those involve warrants with no mention of potentially armed suspects.
"Are you saying that if the police had found marijuana plants, under these facts, that a court would then dismiss the case? If so, I'd like to see a case where that's happened."
the answer to this question, of course, turns not on whether probable cause actually existed but whether the warrant, on its face, was so lacking in probable cause that no reasonable officer could have thought it valid. even under this forgiving standard, i would personally throw this case out, and i would think that many sitting judges would as well. having grow lights in the closet is certainly suspicious, especially if the place smells like weed and the tenants seem nervous, but such an unsubstantiated claim from an unknown source w/no track record is pretty weak. it's certainly as consistant with a falsely reported claim from someone with a grudge as it is with real criminal activity. you don't have to be skilled in legal analysis to know that people sometimes (often?) lie to hurt their enemies. of all people, cops probably get lied to the most, and so its pretty reasonable to assert that any normal cop would realize that this didn't rise to the level of probable cause.
it's sneaky, but a better practice, which would be perfectly legitimate from a constitutional standpoint, would have been to send some officers to the house, have them explain the complaints regarding the growlights, and then have them 'ask' for 'consent' to search. sadly, the tenants probably would have 'consented' even if the apartment did contain contraband. while the consent standard is pretty ridiculous, such a situation is at least better than having the cops bust into the place, guns blazing.
i don't think knock and talks are "sneaky".
even in washington, which has a ridiculous ferrier standard for knock and talks, they are quite useful.
assuming i was the tomato grower, i would have given consent, the cops would have seen that it was a tomato grow and i could be assured my name was "cleared"
a win/win situation.
on the one hand, knock and talks aren't sneaky in the sense that it is, after all, the officers' duty to investigate what seems to be a legitimate complaint. if the knock and talk were really nothing more than a 'friendly exchange of pleasantries,' then the very low level of obtrusiveness is almost certainly justified by the legitimate need to investigate the complaint.
on the other hand, most people probably believe that they must let the officers conduct the search, whether they are breaking the law or not. let's be realistic - if people knew their rights we wouldn't have cases where a suspect consents to have his car searched even though he's got a bunch of coke in the trunk. yet this seems to happen quite often.
if consent to search is a waiver of the right to be 'secure in one's person, house, etc.' against a search absent probable cause and a warrant, then it's difficult to see how such waivers meet the 'knowing and voluntary' zerbst standard applicable to waivers of other constitutional rights. first, the suspect is likely unaware of his right to refuse. second, having police show up at your door is inherently intimidating, and no doubt the police phrase their 'requests' in a way that makes it seem as if they have the authority to search regardless whether the suspect 'agrees' or not.
this being the case, it's not exactly a win/win situation, even where the suspect is not violating the law. assume you were the tomato grower, and the police have come and asked to search. you're intimidated, and not being schooled in the 4th Amendment, you think you must let them. so they enter your home, and rummage through your closet, no doubt looking around your bedroom, etc. this isn't exactly a pleasant experience, notwithstanding th fact that your name will be 'cleared' (cleared of what? you've never been formally accused). bedrooms and closets are pretty private places; i keep my laundry basket in my closet, and w/out getting specific, let's just say that i wouldn't want a stranger snooping around there if i knew i had the choice.
so, in a sense i think they're sneaky, because they often lead to what can be described as non-consentual consent searches.
i disagree. and my training in psychology confirms my disagreement. there are a # of reasons why people consent to searches when the search will find stuff that can be used against them. it has to do with the psychology of guilt and suspicion. also note that due to WA's ridiculous ferrier standard, the LEO must make it very clear to the person that they have the right to refuse - but that's WA (and HI etc.)
i would really like to know why you think most people don't think they have the right to refuse. where do you get this factoid from? or is it merely a (imo and ime false ) conclusion you draw based on the fact that so many DO consent, so that is your assumed reason?
you and i are different. i would WANT to let the cops know that i was NOT a grower, given that somebody had claimed i was, and would allow the consent search to show them that i, in fact, was growing tomatoes.
There's little that a suspect can do about it, especially if marijuana is found. Even if it isn't people are often nervous when confronted by aggressive police, and they generally can't prove that the officer didn't actually smell marijuana.
i can tell you from personal experience that easily over 90% of the time i have smelled marijuana, a subsequent search revealed - wait for it - marijuana.
again, i don't even think possession of marijuana should be a crime, but GIVEN that it is, cops should have the same authority to search (given probable cause) that they do for ANY other crime - whether that be a drug crime, a violent crime, or a property crime.
My concern is that the temptation exists, and that the suspect has little or no recourse against the officer falsely claiming to smell cannabis. Thus, I'm suspicious of the "smell" test for probable cause, for the same reason that I'm suspicious of anonymous tips. It may be enough to prompt investigation, but it shouldn't be treated as probable cause.
Also, the smells have a tendency both to drift and to cling to people/things. I know of at least one case where, after a suspect's house was searched and he was held, with no cannabis found, a subsequent raid on his next door neighbor uncovered a major growing operation.
can an officer make false claim? sure. he could also make false claim about miranda, confessions, and any other sort of thing.
I'll cop to being much more cynical than Gregory. I have seen too many cases where officers "smelled marijuana" and found something else. I'm a defense attorney. I can only assume that there are also plenty of cases where the cops "smelled marijuana," never found anything, never arrested anybody, so never filed any charges, and consequently I never heard about it.
Oh, and it's also amazing how many people who are not under the influence, but known to the police just happen to swerve over the fog line...when they know the police are following them.
Guest 3L,
If you think most judges would throw out this search warrant if marijuana had been found based on no officer reasonably believing there would be probable cause, you should become a PD.
Just for the record: I don't believe most cops are honest. When I say "honest" I don't mean that they commit armed robbery -- although, when you read stories like the one about the St. Louis cops who stole World Series tickets and merely got slapped on the wrist, you start to lose faith in that, too. I mean that they regularly perjure themselves. (Really, the people on the street who possess drugs don't all make "furtive movements." Contraband isn't always in "plain view.")
If he wants to be disillusioned, sure. But I'd prefer he become a judge.
first, my crim pro prof, who is staunchly liberal and a well recognized expert in the field, told us that while he initially thought 'the cops are lying - nobody gives consent' numerous video recordings of consent searches convinced him that, his bewilderment notwithstanding, people do consent to searches even when they know they will reveal evidence of a crime. of course, this amounts to 'my prof said so,' but he is an expert, and i tend to believe people when they make concessions that go against their normal agenda.
second, and perhaps more convincingly, i'd like to think that most judges take their role as 'neutral, detached magistrate' somewhat seriously, and while they may be willing to give some arguably questionable claims a less exacting level of scrutiny, they won't tolerate what they consider to be flat out lies. put another way, it's one thing to take the cop at his word when he tells you he smelled marijuana (because hey, maybe he did), but the claim 'no, really - he let me look in the trunk even though that's where he hid the dead hooker' is so incredible on it's face that i can't see a judge accepting it unless he actually believed it.
Without the risk to the officer of being caught is a lie, and without the recourse on the part of the suspect, lies of the "I smelled marijuana" and "he looked nervous/shifty" variety are more troublesome than the "I really did read him his rights" variety.
Guest 3L: I don't deny that people sometimes consent -- although from what I can tell, most of those times are situations when the police make it clear that they're going to conduct the search anyway. ("You can consent, or we'll harass you until we get a warrant, and we'll search anyway.") (People also consent for the same reason that they talk to police, even though every criminal defense lawyer will tell you the same thing: Shut. Up. Don't say a word beyond "I want a lawyer." Namely, they know that police will assume that lack of cooperation = guilt, and they think they can talk their way out of a situation.)
As for your neutral magistrate thing, check out the flimsy probable cause on many warrants. (Including, obviously, the one which was the impetus for this thread.) Judges see the same prosecutors and same cops on a regular basis; making a cop's job difficult just makes a judge's life less pleasant.
And based on my criminal law experience, people do consent to things all the time, even people with a lot of contact with the police. The the main reason seems to be that they think they can talk their way out of it. This is not as irrational as it seems, since police often do let low level criminals talk their way out of minor crimes (i.e., possession of a joint), primarily, I think, to keep them around as informants. The mistake that these guys make, of course, is assuming that they can talk their way out of the 25 lbs of marijuana in the trunk.
I was pulled over by the Colo. State Patrol at approx. 3 a.m.
CSP: Do you know why I pulled you over?
Me: No.
CSP: You failed to signal to turn left at the intersection.
Me: That was a left turn only lane, I signalled to get in it, and I was the only car on the road at this time in the morning.
CSP: Nevertheless, the law requires that you signal. Have you been drinking?
Me: A couple of beers approx. four hours ago.
CSP: Would you please get out of the car (said in a command voice).
Me: Am I required to? I would prefer not to.
Both: Repeated.
CSP: If you don't get out of the car right now, I will be forced to arrest you. Based on my observations, experience, and training, you are drunk. Will you please step out of the car.
Both: Repeated.
Me: You will just have to arrest me.
At which time, I exited the car, was handcuffed, taken to the nearest police station approx. 5 miles away, and given a breath test after he stated that if I didn't voluntarily submit, he would take me to the clinic, where the police would hold me down and they would physically take a blood test. I blew below .001% BAC, approx. 10% of the level for DUI at the time. I had to walk home then, approx. 5 miles at 20 degrees, with all my warm clothes in my car or at home.
So, what did I see in such a short time?
- A pretextual traffic stop - I have followed CSP through that same light more than once, and they don't have their turn blinkers on then either.
- A demand to get out of my car, phrased as a request in order to avoid "arresting" me before probable cause had been developed via the upcoming roadside sobriety check.
- A retalitory arrest based on obviously false evidence (his statement that the arrest was "based on [his] observations, experience, and training"), my actual crime having been that I had refused to exit my car upon command.
- Illegal threats about the alternatives to taking the breath test (which I would have ultimately taken anyway, given the Colo. Implied Consent law).
- Retalitory conduct in refusing to drive me back to either my car or my house, after I had passed the breath test - esp. given the weather and time of day.
What is scarier than that it happened, is that it happened to a sober 50 year old attorney.
For decades, I believed that while many cops cut corners, the CSP was professional. Well, what I discovered that night was the professional means that he had all the right answers, except that, of course, they were lies. The previous time this sort of thing had happened (by big city cops), they didn't have the "based on my observations, experience, and training" line ready.
My point in going a bit OT is that some, if not many (I appologize for the generality to the honest police reading this) do cut corners and cut corners on what appears to be a routine basis.
I was also somewhat shocked by the fact that eight officers apparently entered the dwelling with guns drawn. Why? When did the average pothead (by far, the most likely group growing their own weed) become violent? Tweakers yes. Maybe even crack heads. So, if they had raided a meth lab with guns drawn, that may have been reasonable. But tweakers and crack heads typically don't grow their own pot - it takes too much time and energy, and they would rather steal it or steal to buy it.
Just to share an experience I've had with officers and the "based on my training and experience." They were arresting this guy and telling him to get out of the car. He was trying to put it in park, but with the cops yelling at him (and having numerous guns pointed at him) he was fumbling (it's an automatic). At an evidentiary hearing the officer says that based on his training and experience the guy was trying to get it in reverse (the cops had blocked off a dead-end street. The guy lived down the dead end street and so obviously knew it was dead-end).
I asked the guy if in his 20 years of experience he had ever had a suspect get an automatic in park without going through reverse. He STILL didn't back down.
as this liberal professor conceded (when confronted with evidence), people DO consent WHEN they are guilty
ALL THE TIME
the answers have to do with the psychology.
basically, this thread has devolved into a bunch of defense lawyers claiming (essentially) that cops lie all the time, and that the system is totally skewed against all these people framed by dishonest police.
i can say that based on my experience, i have never seen a cop lie, manufacture evidence, or say they smelled marijuana when none was present.
i HAVE seen (so called) "rips" where cops will search without probable cause. in those cases, when they found drugs, etc. they would either dispose of the drugs in the suspect's presence, or submit them as a case report for information (not prosecution). that may be technically "wrong", but it is far different from claiming consent when none existed, lying about evidence, etc.
i'm not saying it doesn't happen. of course it does. i am saying that i have seen more honesty among law enforcement than i have seen anywhere else.
also note that refusal to take field sobriety tests (at least in more than one jurisdiction i have worked in) ADDS to probable cause for DUI.
i can state, based on over 200 DUI arrests, that almost every single time somebody refused FST's, and then took a chemical test (blood, breath, etc.) that they were in fact impaired.
sober people almost always consent to FST's. because they know they will (almost certainly) pass them.
All I can say is that you must not live in NYC.
sober people almost always consent to FST's. because they know they will (almost certainly) pass them.
Why bother with your rights if you have nothing to hide, right?
fwiw, FST's are not a miranda issue (since they are not testimonial evidence), and if a cop has reasonable suspicion that you are impaired, and you in fact AREN'T then why NOT take the FST's?
i've taken FST's (in college). i had consumed one beer. i passed.
why is there such an adversial attitude? oh wait. i forgot. lawyers are supposed to be adversarial. :)
and the stats don't lie. people who are not impaired by liquor almost always consent to FST's. why? because they know they will pass, and they want to allay suspicion.
nobody said you don't have the right to refuse to do FST's. you absolutely do. and your decision NOT to do FST's CAN add to probable cause, for the reasons mentioned.
you suspect wrong.
also note two things.
1) the fact that cops did not find marijuana, but instead found the tomato grow op does NOT mean that there was not marijuana present at the time the informant claimed to smell marijuana. it means that when the search was conducted, there was no marijuana. this is a distinction that nobody, to my knowledge, has recognized.
2)i would laugh in the face of any cop who tried to get a warrant based on an informant claiming there was a grow lamp and the SMELL of marijuana. that's absurd. a cop, willing to testify and provide a signed statement that he smelled marijuana is entirely different than some anon informant (who presumably has not attended controlled burns either) making the claim
"fwiw, FST's are not a miranda issue (since they are not testimonial evidence), and if a cop has reasonable suspicion that you are impaired, and you in fact AREN'T then why NOT take the FST's?"
This statement and others you have made in this thread seem to have underlying them a sort of "if you've done nothing wrong you have nothing to worry about" sensibility. I think this is a very wrongheaded and unethical way to think about things. One shouldn't have to take a FST if there is no good reason for the officer to suspect that you are drunk. While you (or I, I might mention) would probably just take the test to get it over with that doesn't mean we should take it or should have to take it.
Especially in a situation like Bruce Hayden's story, it is ridiculous that the driver's unwillingness to take the FST was, in and of itself, reason to bring the officer into the station. To present another example, if there is no evidence that you have committed a crime, why should you need to provide a DNA sample to rule yourself out?
1) nobody said anybody HAS to take FST's.
what i said is that one's unwillingness to take FST's can be seen as PART of probable cause.
2)the issue is not "drunk". it is "impaired by liquor
3)there is no evidence that bruce's unwilligness to take the FST's was "in and itself" the reason he was brought to the station
arrests are made based on totality of the circumstances. the officer had a driving pattern, presumably indicia of impairment (bloodshot eyes, odor of liquor), admissions of consumption of liquor, and refusal to take FST's
i haven't read the report (nor have you), so the assumption that it was merely his unwillingness to take FST's that resulted in his arrest is certainly not supported by anything but conjecture on your part
and again, NOBODY is saying you have to take FST's. i am saying that somebody NOT taking FST's can add to probable cause
Now, obviously this is a generalization but I have had several experiences like this. On the other hand, I have had many many delightful and helpful interactions with officers, as well, they just happened to occur when I acquiesced to their wishes or approached them without them contacting or flagging me down.
most cops would prefer that a sober person TAKE the frigging FST so they can clear the innocent, just as much as they wish to arrest the guilty. cause it's a waste of everybody's time to arrest somebody who is not in fact impaired by liquor
but again, assumptions are everywhere in your post, and amazingly enough all the assumptions are such that the cops are seen in the worst possible light, and the arrestee in the best possible light. bias much?
again, the issue is totality of the circ's and we don't KNOW what the totality is, but assuming that he was arrested merely because he refused FST's is not supported, which was my point
it is an assumption that the cop arrested him in retaliation for not stepping from the car/taking the FST's
the issue is one that biased people commonly express - assuming motive, when there is no evidence.
assuming bruce is telling the truth, it is clear that
1) he refused to step from the car
2) he was arrested
it does not follow that (2) was in retaliation for (1), but that is what you are assuming. and contrary to what you don't want to "seem" to be doing, what you ARE doing is making assumptions that paint one side in a bad light, and without evidence.
again, arrests are made based on a totality of circ's. the fact that somebody does X, and is subsequently arrested does not mean that they were arrested in retaliation for X
and perception is also a big part. you may have PERCEIVED an action as retaliatory, when in fact it wasn't.
this is similar to how people can assume all sorts of motives based on THEIR biases (see: racial profiling, etc.)
again, i am all about evidence, and as a lawyer - so should you.