This week in the Fourth Amendment: Cops, drugs and the Castle Doctrine

There have been a few notable Fourth Amendment stories in the news of late, both concerning police entering private homes in search of illicit drugs.

The first comes from Pennsylvania, where a couple are suing after police wrongly raided their home in search of marijuana. Yes. The drug is now legal for recreational use in eight states, but in states where it isn’t, police are still invading private homes to seize it.

And they’re still botching things.

A Buffalo Township couple is suing the township police and the Nationwide Insurance Co. after, their lawsuit says, hibiscus plants growing in their backyard were mistaken for marijuana plants.

In a lawsuit, Edward Cramer, 69, and his wife, Audrey Cramer, 66, claim that Buffalo Township police handcuffed them both and made them sit in the back of a police car for hours last month as police ransacked their house looking for marijuana.

But rather than running a pot-growing operation, the Cramers say they grow flowering hibiscus in their backyard.

The Cramers were not charged.

They filed a civil lawsuit Thursday in Butler County Court against Nationwide Mutual Insurance Co., Nationwide agent Jonathan Yeamans, Buffalo Township and three of its police officers.

Among the allegations are use of excessive force, false arrest, false imprisonment, intentional infliction of emotional distress and invasion of privacy.

“Nationwide is not in a position to discuss the matter at this time,” company spokesman David Gilligan wrote in an email.

Buffalo Township police did not immediately return a request for comment.

The wild card this time was the Nationwide insurance agent, who — according to the lawsuit — tipped off the cops.

The trouble started when a neighbor’s tree fell on the [Cramers’] property in September.

The lawsuit states that Yeamans came to the property on Oct. 5 to investigate the insurance claim.

But the suit claims that Yeamans surreptitiously shot photos of the flowering hibiscus growing in the Cramers’ backyard and sent them to police as evidence of a marijuana grow operation.

According to the complaint, Yeamans “intentionally photographed the flowering hibiscus plants in such a manner as not to reveal that they had flowers on them so that they would appear to resemble marijuana plants.”

Based on those photos, the suit claims, Buffalo Township police Officer Jeffrey Sneddon obtained a search warrant for the Cramers’ property. The suit says that Sneddon claimed to have expertise in identifying marijuana.

As we well know, while the courts seem fine relying on a police officer’s “training and experience” to grant warrants for invasive drug raids, use of that phrase in warrant applications is basically boilerplate and means very little.

Nationwide deserves some bad publicity for this. Was the agent acting on his own volition, or does the company train its agents to report customers for suspicious activity? If it’s the latter, what sort of training do they get? Because hibiscus leaves look nothing like marijuana leaves. And the flowers aren’t remotely similar. According to the lawsuit, after the raid the company sent the couple a letter threatening to withdraw coverage unless they stopped growing pot.

Meanwhile, Reason’s Jacob Sullum reports some better news from state courts in Florida and Michigan. In Florida, an appeals court considered the claim of a man who was woken up at 7 a.m. as police battered down his door in search of pot. Here’s Sullum:

Florida’s Second District Court of Appeal concluded last month that the deputies had violated a state law governing “knock and announce” searches. The law allows an officer with a search warrant to break into a house “if after due notice of the officer’s authority and purpose he or she is refused admittance.” Since [Juan] Falcon and his family were asleep at the time of the search, Judge Susan Rothstein-Youakim wrote for a unanimous three-judge panel, the 15 to 20 seconds that the SWAT team waited was not enough time to conclude that they had been “refused admittance.” In fact, Falcon and his teenaged daughter were on their way to the door when the deputies forced it open, tossing two flashbang grenades as they did so.

Rothstein-Youakim noted that police violate the knock-and-announce law when they “knock, announce their authority and purpose, and then enter with such haste that the occupant does not have a reasonable opportunity to respond.” Without such an opportunity, what is nominally a knock-and-announce search is in practice indistinguishable from a no-knock search, which requires a special warrant based on circumstances that make the usual approach dangerous.

Rothstein-Youakim noted that police had no reason to believe that Falcon, whose criminal record was limited to a DUI arrest, was armed or would offer resistance. “The deputies also had no reason to believe that Falcon knew that they were coming, that anyone inside the residence was at risk of harm, or that Falcon or his family might try to escape or destroy evidence,” she wrote. But they did know that Falcon had two teenaged children and that the family was apt to be asleep at that hour, magnifying the risk that Falcon would mistake the deputies for burglars or do something they would interpret as threatening.

It’s pretty rare that a court gets a knock-and-announce analysis correct. This one did. The Michigan case stemmed from two predawn raids of men the police suspected of possessing “marijuana butter.” The police showed up before dawn, without a warrant, and bullied the men into consenting to searches. Here’s Sullum again:

According to the Michigan Supreme Court, “[Todd] Van Doorne considered arming himself, as did [Michael] Frederick’s wife.” You can imagine what might have happened if either of them had picked up a gun in self-defense …

The officers, part of the Kent Area Narcotics Enforcement Team, did not have a warrant. They defended their visits as “knock and talk” interactions that do not require judicial approval. But as the Michigan Supreme Court noted last June, that exception to the warrant requirement is based on the premise that police are doing nothing more than any member of the public is implicitly invited to do. “The scope of the implied license to approach a house and knock is time-sensitive,” the court said, and does not include hours when a home’s residents are likely to be asleep. Hence the officers who woke up Frederick and Van Doorne were trespassing on private property in the hope of gathering incriminating evidence, much like the cops who brought a drug-sniffing dog to the doorstep of a marijuana grower’s house in Florida v. Jardines, the 2013 case in which the U.S. Supreme Court ruled that such an intrusion violates the Fourth Amendment.

Notably, both the majority and the dissenting justices in Jardines observed in passing that waking people up by knocking on their doors in the middle of the night is not something members of the general public are invited or expected to do. Having concluded that “the police were trespassing when they approached the defendants’ homes,” the Michigan Supreme Court instructed the Kent County Circuit Court to consider whether the evidence discovered by the subsequent, ostensibly consensual searches was nevertheless admissible. Last week Kent County Circuit Court Judge Dennis Leiber ruled that the evidence is so closely tied to the Fourth Amendment violations that it must be excluded, meaning that the cases against Frederick and Van Doorne cannot proceed.

For decades, the drug war has been eroding the “Castle Doctrine,” or the notion that the home should be a place of peace and sanctuary — and that such peace and sanctuary should be violated only under emergency, life-or-death conditions. The drug war has carved gaping exceptions to that doctrine, which dates back centuries to English common law. As with the other drug-war exceptions to the Fourth Amendment, the courts have been persuaded that pot and other drugs are such a threat to public safety that policing them is worth bringing state violence into private homes.

The fact that marijuana is now legal for recreational use in 16 percent of the states — while in the remaining states cops still exploit those exceptions to the Fourth Amendment to conduct violent raids in search of the very same drug — pretty persuasively demonstrates just how bogus and overblown the pot threat is, and always has been.

Here and there, we’re finally starting to see at least a little pushback, particularly at the state level. Let’s hope there’s more of it.

Link.

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