03.27.2016
policy

Ask a Weed Lawyer: Do Police Track People Who Buy at Weed Shops?

I always feel like somebody's watching meeee.

John Bussman is a criminal defense attorney in Orange County, California. He is an expert on marijuana law, a member of the NORML Legal Committee, and a longtime supporter of drug policy reform.

Q: Do police track people who attend cannabis conventions or shop at hydroponic stores?

You bet. Not to say that police maintain a vast, comprehensive database of anyone who has ever browsed the reggae section at a record store. It’s no secret, though, that law enforcement agencies regularly conduct surveillance and intelligence-gathering operations at places where cannabis enthusiasts are known to congregate

Simply observing a subject shopping at a hydro store would not, by itself, establish probable cause for police to obtain a search warrant for the subject’s house. It could, however, be one piece of the circumstantial puzzle that cops assemble during their investigation. Assemble enough puzzle pieces, and the picture starts to become whatever the police want to paint it to be.

Example: Undercover cops observe “Adam” making purchases at his local hydroponics store. Police conduct surveillance at Adam’s home. They notice excessive electrical usage or activity that they deem “suspicious.” Cops sort through his trash and discover marijuana clippings (or green matter that they mistake for marijuana clippings). Now they probably have enough evidence to obtain a warrant and to break down Adam’s door. 

Assemble enough puzzle pieces, and the picture starts to become whatever the police want to paint it to be.

That’s almost exactly what happened to the Harte family in 2012. Robert and Addie Harte are both former CIA analysts who live with their two children in suburban Johnson County, Kansas. Some time in 2011, Robert accompanied his young son to a gardening store to purchase supplies for a school science project. An undercover state trooper recorded Mr. Harte’s license plate and shared the number with local authorities for further investigation.

The Johnson County Sheriff’s Department collected trash from the Harte home and discovered some “saturated plant material.” For reasons unknown, the wet plant matter tested positive for THC in the deputies’ field testing kit.

Based on the purchases observed at a gardening store, the wet plant matter discovered in their trash, and the supposedly positive THC test, deputies obtained a search warrant to raid the Harte residence.

Image via Oregon DOT/Flickr

On April 20, 2012, agents from the Johnson County SWAT team forced their way into the Harte’s home at gunpoint. They held the family captive for hours while they searched the house for evidence of drug activity. None was found. The wet plant material that had been found in the trash? Loose leaf tea. It turns out, the field identification tests that had supposedly identified THC are notoriously unreliable and prone to false positives.

The Hartes sued the Sheriff’s Department over their ordeal, but a federal judge dismissed the case in December. He determined that agents did not use excessive force, and that the raid had been supported by adequate probable cause. 

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