Reader Michelle Dulak pointed me to this story:
A family whose high electric bill sent police on a futile hunt for indoor marijuana cultivation at their Carlsbad home is asking for an apology in writing.
The raid at the Ivy Street home of Beryl and Dina Dagy was one of 25 conducted Friday in North County and San Diego after a six-month investigation by the San Diego Integrated Narcotic Task Force into marijuana being grown in rented homes. Agents found marijuana in 20 of the raids and arrested 24 people.
Officers, however, found nothing to link the family to illegal drug activity during the search at the Dagys’ house, and they apologized to the Dagys at the time, Carlsbad police said Wednesday. . . .
This does sound troubling, even, I suspect, to those who see marijuana growing as a very serious crime. Note, though, that — as is often the case in such stories — there was at least some other evidence supporting the search warrant, though the story saves it for the second to last paragraph:
Dagy said the only reasons the agents gave her for the raid were the high electrical bills and the fact that a drug-sniffing dog had alerted at the home before the raid.
So we have abnormally high electrical bills (“1,161 kilowatts for January and 1,584 for February . . . the highest figure for the other four homes on the block was 467 for January and 462 for February”), plus the drug-sniffing dog seemingly confirming the likely presence of marijuana. Neither of these is by any means dispositive, and even together they aren’t enough to prove guilt beyond a reasonable doubt. But of course the standard for getting a search warrant isn’t proof beyond a reasonable doubt; it’s probable cause, which is necessarily a much lower threshold.
Apparently, the data that the police were using was indeed pretty reliable: “Dina Dagy was one of 25 conducted Friday in North County and San Diego after a six-month investigation by the San Diego Integrated Narcotic Task Force into marijuana being grown in rented homes. Agents found marijuana in 20 of the raids and arrested 24 people.” Probable cause is to be determined from the perspective of what the police knew beforehand, not based on the results of the search. Still, when you have this many data points, this tells us something about the ex ante probabilities, and it looks like the police methods are finding the right targets with 80% confidence. That’s more than plenty for probable cause, it seems to me.
I sympathize with the Dagys; but the “probable cause” standard means that the Fourth Amendment tolerates a considerable number of false positives when it comes to searches and arrests. “Beyond a reasonable doubt” might mean something vaguely like “better that twenty guilty people go free than one innocent person go to jail.” But the probable cause standard (probably more like 30-50% confidence than 95% confidence) is much more forgiving — it might be more like “better that one, or even a few, innocent people get erroneously searched than one guilty person go free” (recognizing that such formulations are always highly imprecise).
Again, if you think that marijuana growing shouldn’t be a crime at all, then such searches are obviously unjustified on those grounds. Likewise, if you think that it’s only a very minor offense, given the intrusiveness of this sort of search. But our legal system, reflecting what I suspect is the view of the majority, takes the view that marijuana cultivation is indeed a fairly serious crime. And if that’s so, then these sorts of searches, even based on foreseeably imperfect evidence, are quite permissible.
UPDATE: Reader Curt Wilson asks a follow-up question:
[W]hat procedures police need to go through to look at utility bills? Are these just considered public domain, or are there privacy issues here? Wouldn’t they need some kind of warrant just to get that information?
Under the Supreme Court’s Fourth Amendment cases, the police may get such information just through a subpoena to a utility company (or perhaps even just by asking the utility company), with no need for a warrant or probable cause. The utility company is treated like any other witness who may have relevant information in his possession: The government may subpoena the witness to get this information whenever there’s some reason to think that the subpoena will yield relevant (even indirectly relevant) information; it may also ask the witness to voluntarily turn over this information. Probable cause is not required.
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