Kopbusters trap cops in a narcotics raid

[Biff Starbuck]

I agree the claim of the use of FLIR being "illegal" shows a bit of a misunderstanding. If the court throws out evidence because the search was considered to have been on the basis of insufficient probable cause, that does not mean the cops "broke" the law. Courts can dismiss charges based on case law or interpretation of the laws and constitution. That is different than a determination the police broke a law created by the legislature, such as trespassing or perjury. The penalty for improperly obtaining evidence is throwing out the evidence and the "fruit of the poisoned tree." Manufacturing evidence would risk numerous criminal violations for fraud, tampering with evidence, perjury, abuse of authority, official oppression, and similar offenses.

As you guys have already pointed out, the key issue in this case has not come out. Kopbusters claims to have set up their sting so as to necessitate the police to lie on an affidavit or "illegally" use FLIR as the basis of a search warrant. In their allegations, Kopbusters are assuming they set up their test correctly to have the house only searched if the cops broke the law. However, hopefully most readers of JREF will be the types who want proof and not assumption. It is entirely possible the officers did use FLIR in their search warrant application, and it was approved by a prosecutor and judge unfamiliar with prior decisions. It is also possible the officers searched for some other reason. For example, a tip from a neighbor who saw suspicious activity.

If the officers obtained a search warrant in good faith, they will be well protected from criminal and even civil liability. The executive branch drafts it, and the legislative branch approves it. The courts are supposed to decide if the search is reasonable or not. This protects citizens from unreasonable searches and seizures, and protects cops and prosecutors who operate within the rules of the system.

On the other hand, if the officers lied on the application for a warrant, they could be in big trouble. The problem would be if they fabricated allegations or facts. Merely omitting the fact they used FLIR to find the house should not be illegal. Officers are not required to put all of their evidence in a search warrant application. Very often they do not, because normally a copy of the warrant and affidavit are given to the defendant or left at the location. Cops don't want to reveal too many of their witnesses, facts, or techniques. If the cops used FLIR, but then showed enough other evidence to show probable cause to search the house, not including the FLIR, the warrant would probably stand. For example, cops could use FLIR, and then drive down the pubic road in front of the house and see marijuana plants through a window, or extra plants in the back yard. The warrant could be based on this plain view of illegal activity, not the FLIR imagery.

 

[Toke]

What has happened in the last week?
Have the police shown off the search warrant.
Should they not leave a copy with the owner/renter of the house?

 

[gumboot]

The police must be evil. How do I know? Because the Kopbusters bust Kops. With a K. That makes them evil. Clue's in the name, people!

 

[Wavicle]

I agree the claim of the use of FLIR being "illegal" shows a bit of a misunderstanding.

http://en.wikipedia.org/wiki/Kyllo_v._United_States

Using a FLIR on some person's house without first obtaining a search warrant violates that person's constitution right to be free from unreasonable search.

If a Judge was unaware of Kyllo then he needs to be thrown off the bench. It is a very significant development in criminal jurisprudence and how police may conduct investigations.

No FLIR without a prior warrant describing the places to be searched, and justification for why such an invasion into the place is necessary.

 

[Biff Starbuck]

http://en.wikipedia.org/wiki/Kyllo_v._United_States

Using a FLIR on some person's house without first obtaining a search warrant violates that person's constitution right to be free from unreasonable search.

If a Judge was unaware of Kyllo then he needs to be thrown off the bench. It is a very significant development in criminal jurisprudence and how police may conduct investigations.

No FLIR without a prior warrant describing the places to be searched, and justification for why such an invasion into the place is necessary.

Within the confines of an involuntary, deliberate search of someone's residence, that is basically what the court said. However, the ruling does not necessarily apply to all use of FLIR.

You could also say there is a hard and fast rule that cops can't look around inside someone's house without a warrant. Except that is not true. First, many people actually consent to a search by law enforcement. Also, if an officer is inside the house for a legitimate reason, they can act on evidence of a crime that is in plain view. A police helicopter cannot fly low over the back yard of your house to look for marijuana seedlings, but if they are hovering at a low altitude looking for a burglary suspect, they do not have to ignor the plants they happen to see. Similarly, if an officer is using FLIR legally to look for a burglary suspect from a helicopter, and sees unusual warmth from a house, that does not have to be ignore either. In Kyllo, the Department of Interior special agents used FLIR specifically to look at a house they were suspicious of to gather more evidence. Prohibiting an intentional search with FLIR without a warrant does not prohibit seeing something or knowing what they legally saw without a warrant.

I agree that intentionally using FLIR to look for heat from a suspect's house without a warrant would be considered a search prohibited by the 4th amendment. That does not mean law enforcement officers would be criminally liable. The first problem with that is while there are laws against illegal wire taps, trespassing, computer hacking, and now even some video surveillance, legislation has not yet caught up with criminal laws to cover invading someone's privacy with FLIR. Given that most people don't worry if their neighbor sees if their roof is warm, I don't expect a big public push for such laws in the future.

As far as a criminal charge against officers for violating someone's 4th amendment rights under something like 18 USC 242 , that appears possible in theory. However, as far as I know, those prosecutions are pretty rare. Normally it takes something like the Rodney King case, or a murder where the US government does not have a criminal charge for murder.

I think a much more likely scenario would be a charge of perjury if someone lied on the application for the warrant.

I am curious though as to why we have not seen the affidavit or warrant yet from Kopbusters. That would be the smoking gun they are alleging. Maybe the officers were too surprised by the set-up to leave the copy at the house.

http://www.youtube.com/watch?v=EHmP_KtmcB4&feature=related

Ironically, that video made me realize the Kopbusters team could possibly be charged criminally with unlawful oral intercept, for recording the audio of those cops without their knowledge or consent. People have been charged for recording their own spouses in their home. Granted, I think it would politically be a very dumb thing to charge and smack of retaliation, but it could still happen.

 

[BenBurch]

Well, if a passive snoop is illegal, and if they still use it, then hell yes, bust the ********.

The agents of the law must be lawful beyond doubt.

This is not the first abuse by a long shot, however.

I still remember the case of the orchid fancier whose house was taken literally apart by the drug cops looking for contraband. The thing that was their probable cause was his buying of a very expensive light meter to control light color temperature for his plants. Of course, the DEA never heard of anybody taking that sort of care with an orchid...

And do you think they paid the first dime to restore the damage they did to this fellow?

 

[Roadtoad]

Well, if a passive snoop is illegal, and if they still use it, then hell yes, bust the ********.

The agents of the law must be lawful beyond doubt.

This is not the first abuse by a long shot, however.

I still remember the case of the orchid fancier whose house was taken literally apart by the drug cops looking for contraband. The thing that was their probable cause was his buying of a very expensive light meter to control light color temperature for his plants. Of course, the DEA never heard of anybody taking that sort of care with an orchid...

And do you think they paid the first dime to restore the damage they did to this fellow?

Of course not, Ben.

Let me tell you the tale of the Cheaper! stores here in Northern California.

Years ago, they were a chain of mini markets. At one point, the incurred the wrath of the State of California for selling milk cheaper than Safeway. They appealed, stating they were still making a profit, but the state forced them to hike their prices. (I called the state agency responsible for enforcing the law that screwed over Cheaper! Guess where the staff of said agency bought their milk...)

I don't remember the year, but I think it was the mid 80's when a robbery suspect is supposed to have run into a Cheaper! store on Stockton Blvd. here in Sacramento. The police chased him into the store, and proceeded to destroy the interior of the place, looking for this suspect. No one had seen the guy, and had anyone bothered to look at the video tape the store was using, they might have discovered he had gone elsewhere to hide.

IIRC, they did over $200,000 in damage to the store. Cheaper! wound up taking the Sacramento PD to court to try and recoup the loss. It went to the State Supreme Court, and was promptly tossed out. The police were just doing their job, according to the State's justices.

Ultimately, the Stockton Blvd. store wound up being closed. When they caught shoplifters, the police wouldn't come to the store. Nor would they help run off loiterers, and it eventually led to addtional problems. Cheaper! wound up shutting down their small groceries and opening the Cigarettes Cheaper! stores. The Groceries were sold off to several different companies, (Tower Mart took over several of them.)

There's more to the story, of course, but those are the low points that I recall. It's funny how the courts work on this sort of thing. Unless, of course, it's your business, or your home.

 

[Bikewer]

"Of course, the DEA never heard of anybody taking that sort of care with an orchid...'

I take it no one on the DEA reads Nero Wolfe.....

 

[adamruth]

Of course not, Ben.

Let me tell you the tale of the Cheaper! stores here in Northern California.

Reminds me of a poem:

You're gouging on your prices if you charge more than the rest.
But it's unfair competition if you think you can charge less.
The second point we'd like to make, to help avoid confusion,
Don't try to charge the same amount, that would be collusion.

 

[Kestrel]

What is the basis for assuming that a warm spot in a house detected by FLIR indicates a crime is being committed? It could in fact be a perfectly legitimate device such as a plasma TV.

 

[Ladewig]

What is the basis for assuming that a warm spot in a house detected by FLIR indicates a crime is being committed? It could in fact be a perfectly legitimate device such as a plasma TV.

They look for room-sized hot spots, especially ones with opaque plastic over the windows.

 

[Toke]

like a sauna?

 

[luchog]

What is the basis for assuming that a warm spot in a house detected by FLIR indicates a crime is being committed? It could in fact be a perfectly legitimate device such as a plasma TV.

The local aquarium society has a handful of stories about reefkeepers being harrassed and raided by local law enforcement and DEA agents; who flagged them for their purchases of multiple high-intensity metal halide lights*, and sudden spikes in their electricity bills when said lights were installed.

My wife once got a nasty letter from her landlady, about alleged "illegal activities", after a neighbor reported her having a "grow operation" in her living room, visibile from the large front window. The neighbor saw the large metal halide pendant light; but somehow failed to notice the considerably larger reef aquarium sitting eight inches below it.


* These lights are commonly used for indoor growing of various types of plants, and are equally necessary for keeping photosynthetic corals in a tropical reef aquarium. The lights are not usually flagged when purchased from aquarium supply shops. However, many aquarists prefer to purchase the ballasts, mounting hardware, and bulbs from local horticulture shops when ever possible; where purchases of such items are often watched and tracked by law enforcement. This is due to the fact that aquarium-industry retailers invariably tack on a 20-50% markup for identical (and still very expensive, even with out the markup) equipment when selling it to hobbyists; for the sole reason that they can, and people will pay it. This is pretty common practice throughout the various exotic pet communities.

 

[Ladewig]

like a sauna?

I'll agree with the OP. I don't think a large hot spot viewed from the exterior of a house qualifies as probable cause for any type of search warrant. On the other hand I would be exceptionally surprised if one of these raids were caused by a sauna.

ETA: to answer your question - theoretically yes.

 

[Kestrel]

The local aquarium society has a handful of stories about reefkeepers being harrassed and raided by local law enforcement and DEA agents; who flagged them for their purchases of multiple high-intensity metal halide lights*, and sudden spikes in their electricity bills when said lights were installed.

This was clearly a case of Reefer Madness.

 

[Biff Starbuck]

The local aquarium society has a handful of stories about reefkeepers being harrassed and raided by local law enforcement and DEA agents; who flagged them for their purchases of multiple high-intensity metal halide lights*, and sudden spikes in their electricity bills when said lights were installed.
.

Much was made about these kinds of cases related to Operation Green Merchant. If you search on Google, most of the results are from sites like High Times magazine and other pro-marijuana groups. The DEA itself describes it as:

Operation Green Merchant (1989)

In 1989, Operation Green Merchant was initiated to combat the increasing number of indoor marijuana grows. This investigation was aimed at traffickers in the Netherlands who were selling high-grade cannabis seeds through the international mail. Thousands of cultivators were arrested and over $20 million in assets were seized. One of the most important enforcement tools that developed from this operation was thermal imagery to confirm indoor marijuana operations. With the use of this new heat-seeking technology, seizures of indoor grows increased 175 percent in a few short years.​

However, some reports also describe the monitoring of horticultural supply stores, especially related to indoor growing, lamps, and hydroponics. I don't know how many tomato or reef growers were raided by cops, or if the rare case was turned into the stuff of urban legends. I would guess more frequently, this information was used as a potential lead or as a reason to use FLIR. Initially, courts upheld the use of FLIR as non-invasive so at the time it was not considered an improper tactic.

I am now reminded of going to the local pharmacy to buy pseudoephedrine. In the US, it is generally no longer sold unless as part of a prescription or if the pharmacy copies the information off of a driver's license or other government ID card. I understand this is to prevent the sale of methamphetamine precursors, and would not mind if police looked into a person who showed up on the list buying hundreds of boxes per month. I am less comfortable with the prospect of being investigated myself if I buy two boxes to treat my allergies.

In the end I guess it goes to the concept of reasonableness and the balance of government powers to protect citizens not only from criminals, but from the government itself.

 

[ServiceSoon]

Reminds me of a poem:

You're gouging on your prices if you charge more than the rest.
But it's unfair competition if you think you can charge less.
The second point we'd like to make, to help avoid confusion,
Don't try to charge the same amount, that would be collusion.

Priceless!

 

[luchog]

However, some reports also describe the monitoring of horticultural supply stores, especially related to indoor growing, lamps, and hydroponics. I don't know how many tomato or reef growers were raided by cops, or if the rare case was turned into the stuff of urban legends. I would guess more frequently, this information was used as a potential lead or as a reason to use FLIR. Initially, courts upheld the use of FLIR as non-invasive so at the time it was not considered an improper tactic.

It wasn't urban legends. There was a huge controversy back in the '90s about the DEA and local law enforcement tracking electrical bills and indoor horticulture equipment purchases. I've known people who were personally flagged, and had law enforcment officers show up on their doorstep, because of the spikes in electricity usage and "suspicious" heat signatures after they installed metal halide lights for their tropical reef aquaria.

I am now reminded of going to the local pharmacy to buy pseudoephedrine. In the US, it is generally no longer sold unless as part of a prescription or if the pharmacy copies the information off of a driver's license or other government ID card. I understand this is to prevent the sale of methamphetamine precursors, and would not mind if police looked into a person who showed up on the list buying hundreds of boxes per month. I am less comfortable with the prospect of being investigated myself if I buy two boxes to treat my allergies.

That actually came in stages. The first stage was, in fact, flagging people who purchased exceptionally large amounts of pseudoephedrine-containing products. Once that was common, bathtub meth producers started paying other people, usually older children and teens, to buy small amounts for them. So they restricted it even farther.

But all of that completely ignores the fact that this practice hasn't made a significant impact on the availability of street methamphetamine. All it has done is reduced, not eliminated, the small-scale local production of "bathtub" meth, which isn't really a significant part of the illicit methamphetamine market. The majority of street meth comes from farming regions, where many of the precursor chemicals are widely and easily available as part of the agriculture industry; mostly located in Mexico, but also in major agricultural areas of the US (such as California and North Dakota).

 

[Bikewer]

Evidently in Mexico they have no problem obtaining industrial quantities of psuedphedrine an other chemicals for drug production.
There is still a fairly busy meth-production scene in our state, which had the dubious honor of being one of the busiest in the nation... We just had a home explosion and fire locally that was caused by a meth lab.

 

[Biff Starbuck]

The Odessa American newspaper shed some new light on the Kopbusters incident. http://www.oaoa.com/opinion/cooper_24727___article.html/drug_odessa.html

The false lead came in the form of an anonymous letter informing authorities that marijuana was being grown in an Odessa residence. Drug agents took the bait and obtained a search warrant for the house, only to be videotaped once they entered the residence as they discovered they had been scammed.

A point was made. It does seem sort of scary that an anonymous tip, with no eye-witness verification of any sort, could be used to get a search warrant. Police did say officers checked out the house to verify details that were mentioned in the anonymous letter. But, in theory, any law-abiding person could be set up in the same manner and find the cops barging into his or her home with little or no probable cause.

On the other hand, the tactics used by Cooper and Kopbusters to set up the scenario aren't very palatable. Nobody's owning up to writing the phony letter (that was funneled through a clergyman), but it doesn't take a super sleuth to suspect its origin. So there aren't a lot of style points being made on that side of the controversy.

I tend to agree with the editorial piece. It seems very probable Kopbusters sent the anonymous letter, and yet did not mention this in their description of the sting. But if police actually did weigh an anonymous letter so much in getting a search warrant, that is troubling too. In my experience, "poison pen" letters of anonymous complaints often have little basis in fact.

Even if the anonymous letter was used to get a warrant for using FLIR, and then a second warrant based on the FLIR heat signature allowed entry into the house, in my opinion, that is a pretty weak basis for a warrant.