Judge Rules Home Raid over Tea Counts as Probable Cause

“This is not what justice in the United States is supposed to be.” – Addie Harte

Back in March of 2014, Mark Horne posted about how the Harte family was terrorized by police in a raid. The raid was based on the husband buying material at a hydroponics store, and the discovery of used wet tea leaves in the family garbage. The hydroponics equipment was perfectly legal and was purchased for a father-son science project. The tea was “field tested,” which is notorious for false positives. They never bothered to send it to a lab for a real test. (By the way, I thought marijuana was smoked. Why would someone soak it and then throw it away?)

The basis of the warrant was treated as a secret. The Harte family had to pay a lawyer to demand answers.

When they found out the flimsy basis for the raid, they sued the police for not having probable cause.

A judge has thrown out their lawsuit. Reason Magazine reports,

It turned out that the genesis of the search was a tip from a Missouri state trooper who saw Robert Harte leave a Kansas City hydroponics store on August 9, 2011, carrying a bag. Inside the bag were supplies for a horticultural project involving tomato, squash, and melon plants that Harte thought would be edifying for the kids. Since people often buy indoor gardening supplies for such perfectly legal purposes, that purchase itself was not enough for probable cause. But eight months later, sheriff’s deputies rummaging through the Hartes’ trash came across wet “plant material” that the Hartes think must have been some of the loose tea that Adlynn favors. Although a field test supposedly identified the material as marijuana, a laboratory test (conducted after the raid) showed that result was erroneous.

The Hartes argued that police should have known better than to trust field tests, which are notoriously inaccurate. Experiments by Claflin University biotechnologist Omar Bagasra found that one commonly used field test, the NIK NarcoPouch 908, misidentified many legal plant products as marijuana, including spearmint, peppermint, basil, oregano, patchouli, vanilla, cinnamon leaf, lemon grass, bergamot, lavendar, ginseng, anise, gingko, eucalyptus, rose, cloves, ginger, frankincense, vine flower, chicory flower, olive flower, cypress, and St. John’s wort. Several of those are common ingredients in herbal tea. In their complaint, the Hartes say the test used to incriminate them has a false-positive rate of 70 percent. They also note that the test is not supposed to be performed on “saturated or liquid samples.”

But according to Judge Lungstrum, the innocent act of visiting a hydroponics store, combined with the result of a test that is accurate only 30 percent of the time (even assuming it is performed correctly), adds up to probable cause for a search. Which makes you wonder: What the hell is probable cause? The phrase, which the Fourth Amendment prescribes as the basis for a search warrant, has never been precisely defined, but the Supreme Court has said it need amount to no more than a “substantial chance” or a “fair probability” that evidence of a crime will be discovered. It’s clear that a probability substantially lower than 50 percent will do, which is why courts continue to treat highly unreliable indicators such as drug field tests and dog alerts as sufficient to justify a search.

The article notes that the sheriff has changed department policy to send suspect leaves to the lab to get accurately tested. But that was before he’d been told by the courts that there was nothing wrong with the raid. What’s to keep him from going back to using field tests?