How the Police Could Have Searched My Home at Any Time, and Probably Still Can: A Glance at Harte v. Johnson County

I’m currently making my way through some of the finer points of criminal law, specifically proper procedure in the investigation of crimes. The case of Harte v. Johnson is not new anymore, but it is not over either- the civil case against the county is still underway. I just learned about it this past week in school, and the details of what led to the suit are troublesome to me, to say the least.

This is not intended to be anti-cop or to further any social divides that already exist. It is just facts placed alongside my own incredulity at the actions taken in this case, none of which are unique.

The fourth amendment is intended to protect us from unreasonable searches and seizures of our property, our possessions, and our persons. What that actually means is heavily nuanced, as all things constitutional must be, thanks to 200 years of development in the case law and theory behind the text. However, it is sufficient here to say that it means that police cannot simply search or seize your property or your person without a warrant or without some other exception being in play, none of which are material to this case.

Getting a warrant requires taking known facts thought to be related to a crime to an indifferent judge along with an application to carry out a search, the details of which must be clear and narrowed to only places and items related to the crime to be investigated (though, police apparently have a lot of leeway in this regard, too). If the evidence presented, in the totality of the circumstances, gives probable cause that a crime has occurred (a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person’s belief that certain facts are probably true- whatever this means, since it remains a constant topic of litigation) and the application is properly tailored, a warrant will be granted.

Now take Harte v. Johnson County. The facts of the case are somewhat jarring to me, but otherwise quite ordinary, ending with a police raid of the Harte home in search of weed, which itself ended with nothing to show for it but a rattled family.

Robert Harte and his son began a project to create a hydroponic tomato garden in their home, and to that end Harte made a trip with his children to a store specializing in such equipment to get needed gear and supplies. This is familiar to me, as an indoor gardener myself who has a small greenhouse of various tea plants and a tank of isopods, both of which require research and shopping around for equipment related to weed grow operations and tomato gardens alike.

Unbeknownst to Harte, that store was under police surveillance, apparently due to its relationship with people trying to grow their own drugs. Customers were tracked, detailed lists with all of their features and observable purchases made- all perfectly legal per Katz v. United States. Harte, in his one visit, ended up on that list.

At this point in the investigation, it may have been prudent to do one of the many other checks that tend to lead police to suspect illicit activity of the sort this search targeted: utility use checks, a perusal of bank records (legal to obtain under the third party principal), a legal look through the obscured windows of the Harte residence (which would have revealed the tomato garden, in plain view), or even a background check (which would have revealed a family with a clean record, once granted the highest level of security clearance offered by the CIA).

Instead, they searched the Harte’s trash- legal per Greenwood v. California. Twice they searched, and twice they found vegetation residue which, when tested with a field kit, gave positive results for THC, the dreaded chemical in weed. These samples were never photographed or even sent to the main lab for analysis.

It is on this basis that the police sought a warrant, and on that basis that they were granted one. Then, on April 20, 2015 (a deliberately chosen day), they executed their warrant, found nothing, but found themselves with a nasty lawsuit with which to deal.

The vegetation was tea. Black tea. The same sort of tea found in my trash can, in addition to the several other varieties I consume each week, some of which look a whole lot more like weed than black tea. The field test was wrong, and they often are. Here are a few other things that same test frequently yields positive THC results for: coffee, mint leaves, soda, vanilla, and sage- all of which are not just in my trash, but I suspect a great many people’s trash regularly.

In short, the police sought, were granted, and executed a warrant based on two pieces of evidence: a single trip to a legal store, and tea leaves they did not bother to lab test. If that is all it takes, they could get a warrant for my home today, if they wanted.

Of course, this case is not going in the police’s favor. Every indicator points to a victory for the Hartes, probably (but not necessarily) followed by a nice payout for damages. This misses the real point, though. For one, it has taken over two years to reach this point. Two years of expensive, stressful litigation over an injustice only the police could have prevented had they not acted so recklessly.

However, more important is this: the Hartes were innocent, and no other crime was discovered in their home, but this is not always the case. An unlawful search, as the one in this case likely was since probable cause can hardly be satisfied, is not supposed to yield usable evidence of a crime in court, even if actual evidence is discovered. This rule, however, has all sorts of exceptions, the good faith exception being the most glaring: if the police thought their warrant was valid and found evidence of a crime, the found evidence may be usable in court. If the police watched me enter a store, then rifled through my trash for tea, got a warrant, and found no evidence of drug use but found any other criminal offense in my home, I may well go to jail for it, despite the shoddy pretense for investigation and potentially invalid warrant. Finding out for sure would require more litigation- so more time, money, and worry.

There are no drugs in my home, and as far as I know, nothing else that would warrant criminal charges. But it seems I could still be searched for my completely legal activities, and maybe go to jail if they happen to find anything stemming from a bad, but good faith, search.

The farther I get into my criminal law coursework, the more it seems the police have lots of ways to win, and that citizens trying to do their best are not all that protected from determined enough police.

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