Dueling narratives. The two articles make one wonder if the authors were covering the same legal case. They were. I have included links to both variations of the story.
If you have an interest in Supreme Court decisions and contemporary legal issues, I would urge you to bookmark the Volokh Conspiracy. Most of the contributors to the Volokh Conspiracy are law professors who tend to comment on items within their field of expertise. Professor Kerr, specializes in search and seizure and computer crimes law. He has argued cases before the United States Supreme Court and knows his way around a legal decision. Mr. Balko is a blogger with an anti-police bias that he makes no effort to hide. To be charitable to Mr. Balko, he may not have possessed the ability to identify the issues addressed in the judge’s ruling and thus jumped to the wrong conclusion.
There are a number of other blog sites out there other than the Volokh Conspiracy that will provide an honest analysis of legal issues that come before the various courts. They have the time and expertise to frame the issue, describe the history and detail the thought process that led to the decision. Typically, this is more helpful in understanding the conclusion the court reached than the dismissive comment, “the judges sold out.” Do yourselves a favor and find a law blog written by attorney’s.
Federal judge: Drinking tea, shopping at a gardening store is probable cause for a SWAT raid on your home Balko
Radley Balko December 28, 2015
“Why are SWAT officers running towards my door?” (Bigstock)
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… 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… 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. Yes, merely shopping at a gardening store could make you the target of a criminal drug investigation.
The Volokh ConspiracyOpinion
A federal judge did not rule that drinking tea and shopping at a gardening store amounts to probable cause Orin Kerr
Orin Kerr December 30, 2015
Balko is getting a lot of attention for his provocative post “Federal judge: Drinking tea, shopping at a gardening store is probable cause for a SWAT raid on your home.” It sounds crazy, right? Why would a federal judge think that drinking tea and shopping at a gardening store amounts to probable cause?
Fortunately, there was no such ruling.
There was a legal decision, but it had nothing to do with visiting gardening stores or the culpability of drinking tea. Instead, the issue in the case was when the police can rely on positive field tests for THC, the active ingredient in marijuana.
Balko is upset that the judge ignored a variety of issues, in order to reach his decision. As Kerr points out the plaintiffs never raised the issues that Balko identifies which makes it difficult for a judge to take them into consideration. Mr. Balko you are entitled to your opinion, but not your own facts.