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.<p>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.<p>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 <i>mostly</i> 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.
> <i>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.</i><p>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...?<p>If that doesn't happen, why not?
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.<p>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.
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.
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.<p>I'm no pothead, but I think I could tell the difference between wet tea leaves and pot just from the smell.
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.<p>What happened to "Protect and Serve". When did it become "Spy and Horas".<p>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.)<p>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.
> 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.<p>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?
Here is "False Positives Equal False Justice" which analyzes the particular drug field tests used, showing they have an enormous false positive rate.<p><a href="http://www.cacj.org/documents/sf_crime_lab/studies__misc_materials/falsepositives.pdf" rel="nofollow">http://www.cacj.org/documents/sf_crime_lab/studies__misc_mat...</a><p>The judge's ruling ( <a href="https://ecf.ksd.uscourts.gov/cgi-bin/show_public_doc?2013cv2586-340" rel="nofollow">https://ecf.ksd.uscourts.gov/cgi-bin/show_public_doc?2013cv2...</a> ) 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."<p>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.
The HN discussion of the original article being referred to by this one can be found here: <a href="https://news.ycombinator.com/item?id=10803680" rel="nofollow">https://news.ycombinator.com/item?id=10803680</a>
> 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.<p>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.
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.
Journalists should be educated on effects of false positives even at low proba (which is not even the case here) on random investigations.<p>Actually, police and justice should be, but when they are not at least we should hope that journalists are.<p>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 <i>big</i> problem in how police do their work.
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.
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.
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.<p>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.<p>It is wrong -- and Kerr must know that -- to defend logic and conclusions when one knows the starting assumptions are wrong.
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.