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Federal judge: Drinking tea, shopping at a gardening store is probable cause for a SWAT raid on your home

A partial list of substances that the tests have mistaken for illegal drugs would include sage, chocolate chip cookies, motor oil, spearmint, soap, tortilla dough, deodorant, billiard’s chalk, patchouli, flour, eucalyptus, breath mints, Jolly Ranchers and vitamins.

That research came as part of new report, False Positives Equal False Justice, by forensics expert John Kelly in collaboration with former FBI chief scientist and narcotics officer Dr. Frederick Whitehurst. In the report, the pair uncovered “a drug testing regime of fraudulent forensics used by police, prosecutors, and judges which abrogates every American’s constitutional rights,” as Kelly wrote in the executive summary.

Federal judge: Drinking tea, shopping at a gardening store is probable cause for a SWAT raid on your home

By Radley Balko December 28

In April 2012, a Kansas SWAT team raided the home of Robert and Addie Harte, their 7-year-old daughter and their 13-year-old son. The couple, both former CIA analysts, awoke to pounding at the door. When Robert Harte answered, SWAT agents flooded the home. He was told to lie on the floor. When Addie Harte came out to see what was going on, she saw her husband on his stomach as SWAT cop stood over him with a gun. The family was then held at gunpoint for more than two hours while the police searched their home. Though they claimed to be looking for evidence of a major marijuana growing operation, they later stated that they knew within about 20 minutes that they wouldn’t find any such operation. So they switched to search for evidence of “personal use.” They found no evidence of any criminal activity.

The investigation leading to the raid began at least seven months earlier, when Robert Harte and his son went to a gardening store to purchase supplies to grow hydroponic tomatoes for a school project. A state trooper had been positioned in the store parking lot to collect the license plate numbers of customers, compile them into a spreadsheet, then send the spreadsheets to local sheriff’s departments for further investigation. Yes, merely shopping at a gardening store could make you the target of a criminal drug investigation.

More than half a year later, the Johnson County Sheriff’s Department began investigating the Hartes as part of “Operation Constant Gardener,” basically a PR stunt in which the agency conducts multiple pot raids on April 20, or “4/20.” On several occasions, the Sheriff’s Department sent deputies out to sort through the family’s garbage. (The police don’t need a warrant to sift through your trash.) The deputies repeatedly found “saturated plant material” that they thought could possibly be marijuana. On two occasions, a drug testing field kit inexplicably indicated the presence of THC, the active drug in marijuana. It was on the basis of those tests and Harte’s patronage of a gardening store that the police obtained the warrant for the SWAT raid.

But, of course, they found nothing. Lab tests would later reveal that the “saturated plant material” was actually loose-leaf tea, which Addie Harte drinks on a regular basis. Why did the field tests come up positive for pot? As I wrote back in February, it’s almost as if these tests come up positive whenever the police need them to. A partial list of substances that the tests have mistaken for illegal drugs would include sage, chocolate chip cookies, motor oil, spearmint, soap, tortilla dough, deodorant, billiard’s chalk, patchouli, flour, eucalyptus, breath mints, Jolly Ranchers and vitamins. Back in 2009, the Marijuana Policy Project demonstrated how easily the tests could be manipulated to generate positive results :

As a lab-coated and rubber glove wearing researcher from the South Carolina Center for Biotechnology dumped a sample of oregano into a field test kit, Mintwood Media’s Adam Eidinger produced a positive test result for cocaine with another kit simply by exposing it to the atmosphere. “This is just air,” Eidinger said, opening up a test and waving it as the reagent turned orange, indicating a positive result.

The testing done at the press conference replicated that done earlier by the researchers, who found that a surprisingly large number of common substances generated false positive results for the presence of drugs. “While testing the specificity of the KN Reagent test kits with 42 non-marijuana substances, I observed that 70% of these tests rendered a false positive,” said Dr. Omar Bagasra, director of the Center for Biotechnology, who conducted the experiments.

That research came as part of new report, False Positives Equal False Justice, by forensics expert John Kelly in collaboration with former FBI chief scientist and narcotics officer Dr. Frederick Whitehurst. In the report, the pair uncovered “a drug testing regime of fraudulent forensics used by police, prosecutors, and judges which abrogates every American’s constitutional rights,” as Kelly wrote in the executive summary.

“Law enforcement officials, forensic drug analysts, and prosecutors knowingly employ the flawed Duquenois-Levine and KN Reagent tests as well as mere conclusory police reports to wrongfully prosecute and convict millions of individuals for anti-marijuana law violations,” Kelly wrote.

At the conclusion of the raids, the Sheriff’s Department held a press conference to tout their success. News reports emphasized that the raids had turned up drug activity “in good neighborhoods” in places like Leawood (where the Hartes live), and at the homes of “average Johnson County families.”

Once they had been cleared of any wrongdoing, the Hartes wanted to know what happened. Why had they been raided? What possible probable cause could the police have had for sending a SWAT team into their home first thing in the morning? But even that information would prove difficult to obtain. Under Kansas law, the sheriff’s department wasn’t obligated to turn over any information related to the raid — not to the Hartes, not to the media, not to anyone. The couple eventually had to hire an attorney to get a judge to order the sheriff to release the information. They spent more than $25,000 in legal fees just to learn why the sheriff had sent a SWAT team into their home. Once they finally had that information, the Hartes filed a lawsuit.

Last week, U.S. District Court Judge John W. Lungstrum dismissed every one of the Hartes’s claims. Lungstrum found that sending a SWAT team into a home first thing in the morning based on no more than a positive field test and spotting a suspect at a gardening store was not a violation of the Fourth Amendment. He found that the police had probable cause for the search, and that the way the search was conducted did not constitute excessive force. He found that the Hartes had not been defamed by the raid or by the publicity surrounding it. He also ruled that the police were under no obligation to know that drug testing field kits are inaccurate, nor were they obligated to wait for the more accurate lab tests before conducting the SWAT raid. The only way they’d have a claim would be if they could show that the police lied about the results, deliberately manipulated the tests or showed a reckless disregard for the truth — and he ruled that the Hartes had failed to do so.

Keep in mind that this was a ruling for summary judgment. This was not a trial. To dismiss the suit at this stage, Lungstrum needed to view the facts in a light most favorable to the Hartes. And yet he still found that at no point did the police violate the family’s constitutional rights.

The Hartes’s fight wasn’t completely in vain. The couple also made a political push to change Kansas law when it comes to police records and transparency. In May, the legislature passed a modest reform bill. Here’s what I wrote about the bill at the time:

But while the bill is a step in the right direction, it’s far from a resounding victory for transparency, and it leaves Kansas well behind the rest of the country on this issue. Whereas the current law seals all search warrant affidavits by default, the bill would codify the presumption that the records will be made available to the owner of the premises that was searched.

But there are a couple catches. Prosecutors can file a motion within five days of the search to keep the records sealed. There’s a justifiable reason for that — some searches may be part of an ongoing investigation, the details of which could be revealed in the affidavit for the warrant. The problem, of course, is that a prosecutor could just as easily file for a seal to protect himself, his office or the police officers involved from embarrassment. The onus would then be on the wrongly searched to hire an attorney to fight the seal.

The far more problematic part of the law is that, while it removes the presumption that all documents related to a fruitless search should be sealed, it unseals them only for the owners of the premises that was searched. These records will still be kept sealed from the public. (It seems clear from the law that the owners could then make the documents public themselves.) That provision makes it extremely difficult for, say, a media outlet to do a broad survey of how searches are conducted by a particular police agency. (Like this, for example.)

To do such a survey or investigation, a journalist would need to get permission from all of the people whose homes or businesses were searched, turning up no evidence of criminality. Without access to the documents, though, there is no way to know who those people are — or if they even exist. It makes it impossible to know if there is a problem, and impossible to identify the extent of the problem if one exists. It would be up to the people wrongly searched to come forward on their own.

I was in Kansas a few months ago and spoke to a number of people who were subjected to extraordinarily violent home raids and searches. They were terrified of going public. They talked to me only because I have written on these issues in the past and felt comfortable that I wouldn’t reveal their names.

The bill drew a sharp reaction from law enforcement circles. Prosecutors contended the bill would provide gritty details about criminal cases that the media would sensationalize.

Riley County Attorney Barry Wilkerson said the bill does more more to help the media than to help individuals.

“It’s not going to be the public that’s going to rush to the courthouse to get an affidavit. It’s going to be the media” . . .

The Hartes are also a white, financially sound couple who both happened to have worked for the CIA. Most people on the receiving end of these raids aren’t white, aren’t middle-class, didn’t once work for a federal intelligence agency and don’t have $25,000 to fund a fight in court. If even those advantages can’t help the Hartes win some accountability, you can imagine the long odds faced by the typical victim of a botched raid.

The Hartes’s attorney recently told KMBC that they will likely appeal Lungstrum’s decision. Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book "Rise of the Warrior Cop: The Militarization of America's Police Forces."