Two recent posts on the Volokh Conspiracy blog
described a controversy over a no-knock SWAT raid authorized by a search warrant based on evidence of a visit to a gardening store and the presence of used tea leaves—described in the application for the warrant as marijuana leaves and stems—in the family trash. The first post
criticized the court decision that prevented the victims from suing the police officers responsible, the second
defended the decision.
The relevant facts appear to be:
1. The raid was part of “ 'Operation Constant Gardener,' basically a PR stunt in which the agency conducts multiple pot raids on April 20, or '4/20.'"
2. The basis for claiming the tea was marijuana was a field test known to produce a high rate of false positives—to frequently say something is marijuana when it isn't.
3. There was plenty of time to have done a more reliable test.
The judge's ruling dismissed the family's suit on summary judgement, meaning that it held that even on the interpretation of the facts most favorable to the plaintiffs, they still had no case. The argument was that the police officers had no obligation to know whether or not the test for marijuana they were provided with was reliable, hence had no liability for holding a family at gunpoint for two hours while searching their house on the basis of a test known to be unreliable.
It is not an absurd argument. But what it points at is the failure of a different part of the relevant legal system.
The officer's affidavit
included the statement:
“1/4 cup saturated marijuana plant material (leaves and stems)”
The material was used tea leaves, not an exotic substance that an American police officer would never have seen. In order to identify it as marijuana material, the officer would have had to be familiar with what marijuana looked like. In the words of the lab that later examined the material, “It does not look anything like marijuana leaves or stems.”
I think that meets the legal standard for a statement that the officer knew or should have known was false. A false statement on a sworn affidavit is perjury, a felony. My guess is that a felony conviction would impose a larger cost on a police officer than a successful civil suit for an illegal search.
This is one out of a multitude of cases in which a no-knock raid turned out to have been authorized by a search warrant based on false information. No doubt in some such cases the officer responsible for the application had made a legitimate error, but it is hard to believe that was the case in all of them. I have not yet seen a single news story about a police officer convicted of obtaining a search warrant on a perjured affidavit.
All crimes are, legally speaking, offenses against the state, not the actual victim. It is the state that controls prosecution. If you commit a crime which the relevant authorities approve of, you are unlikely to be prosecuted. If the relevant authorities did not approve of the use of a test that would produce evidence for marijuana whether or not it was there and thus authorize searches in violation of the requirements of the Fourth Amendment, they would not be using it. In a sufficiently high profile case federal authorities might prosecute state or local authorities for something the latter approved of and the former did not, but that is very much the exception, not the rule.
One solution to the weakness of criminal law as a way of disciplining state actors is to use civil law instead, since under civil law it is the victim, not the state, that chooses whether to prosecute. The higher the standard the court imposes on such suits, the less practical that is.
Another Volokh Conspiracy post
on the case.