"This is a good reason not to use grow lamps to grow tomatoes in your closet."

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.

The best part of the story is that the students kind of figured this might happen, because what they were doing so closely resembled growing marijurana:

Davis said he was speechless but not terribly surprised when police showed up at their apartment.
Barry had been growing the tomatoes since the beginning of the semester and they had joked that someday something like this would happen.
"I knew exactly what they were coming for," he said.

When it comes to the point where this is considered probable cause . . .

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.

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.

Guest,

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.

Guest J,

It seems like we're both trying to fill in an empirical pizture here, one that is pretty hard to get a handle on.

Allowing the government to call this war on Americans "the War on Drugs" is to allow government to determine the terms of the debate. It is not a war against inanimate substances, it is a civil war against American citizens who, whatever their other legal transgressions, have not assaulted anyone by ingesting drugs.

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?

I believe that one does have a legal right to defend oneself against a home invasion by armed assailants, whether they are police or not, unless the police announce themselves as such, and/or have a warrant. Of course, we read about many cases where police, warrant in hand, do an unannounced forcible entry. In such cases, they should not be surprised if they are met with force by the residents (and smart police are not surprised).

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...

to duffy pratt:

"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.

whit:

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.

The police claim of "the [suspects] appeared nervous ... [and] smelled like burnt marijuana" is pretty much boilerplate, in order to manufacture probable clause. Whenever someone is suspected of marijuana use, they inevitably appear nervous and the officer on the scene inevitably smells marijuana. Bang, probable cause.

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.

whit: I posted rashly. I have no doubt that a majority of officers are honest.

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.

Whit,
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.

David: i've never been involved in law enforcement nor criminal justice, and from the police i know in real life i tend to doubt their honesty as well, but nevertheless i do think that people actually 'consent' in most of these cases.

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.

(indeed, my impression is that claiming a confession in court without documentation would be absurd).

Jeff Novitsky, the IRS agent who has been heading the investigation into the crucial national security question of whether Barry Bonds used steroids, has on at least three occasions claimed -- in affidavits, meaning he was swearing to the facts -- that people made detailed confessions to him during the execution of search warrants. He had no recordings of these confessions, nor did he have any corroborating witnesses, nor did he transcribe these statements and have the individuals sign them. People later denied saying the things Novitsky attributed to them. (Indeed, some of those people continued to deny them even after they had pleaded guilty, and had no need to do so.) Novitzky continues to have his job.

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.

Real story, a bit off the subject, but..

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.

Final point (at least for awhile).

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.

what never ceases to amaze me is that people make assumptions without evidence. LAWYERS even!

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.

bruce, your claims about "retaliatory arrest" "pretextual stop" etc. is not supported by your narrative. you may FEEL that way, but you have provided no objective reason to believe these claims are correct.

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.

what rights?

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.

I don't know what to make of Whit's, "Well, sure, I see cops violating the constitution, but I haven't seen them lie" post. Except that it's instructive to note he thinks that violating the constitution is only "technically 'wrong'" rather than actually illegal.

"At least in my jurisdiction, and I suspect in all jurisdictions, grow light + marijuana smell = probable cause."

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

for pete's sake

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

fwiw, that is not my experience, either AS a cop, or dealing with cops.

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

but again, you are taking bruce's ASSUMPTIONS as facts

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.