Friday, August 18, 2017
Wednesday, August 9, 2017
Drug overdoses continue to be the leading cause of death in Butler County. That's right Dick puff out that fat barrell chest of yours and show off your medals because you are a world class Dick, for sure.
Tenth Circuit Judge Carlos F. Lucero began his scathing opinion in Harte v. Board of Commissioners of County of Johnson, Kansas, --- F.3d ---- (2017) 2017 WL 3138494 with one of the most remarkable opening passages ever written by a Federal Circuit Court Judge:
“Law-abiding tea drinkers and gardeners beware: One visit to a garden store and
some loose tea leaves in your trash may subject you to an early-morning,
SWAT-style raid, complete with battering ram, bulletproof vests, and
assault rifles. Perhaps the officers will intentionally conduct the terrifying
raid while your children are home, and keep the entire family under armed
guard for two and a half hours while concerned residents of your quiet,
family-oriented neighborhood wonder what nefarious crime you have committed.
This is neither hyperbole nor metaphor—it is precisely what happened to the Harte
family in the case before us on appeal.”
In its per curiam decision but with each judge writing separately, the court affirmed in part and reversed in part the District Court’s granting of summary judgment and remanded the 1983 action and state law claims brought by the Harte family. For anyone out there who agrees with current Attorney General Jeff Sessions that good public policy is to double down on the failed War on Drugs this case is a frightening and tragic example of everything wrong with that approach and the real toll it has having on perfectly law abiding citizens.
Quoting again from Judge Lucero’s separate opinion, “The defendants in this case caused an unjustified governmental intrusion into the Hartes’ home based on nothing more than junk science, an incompetent investigation, and a publicity stunt. The Fourth Amendment does not condone this conduct, and neither can I.”
The facts of this case literally read like the script for a segment on Saturday Night Live and would almost be funny if the actions of law enforcement were not so inept and despicable. The case stems from the actions of an overzealous Missouri State Highway Patrol Sergeant James Wingo and his “pet project” to make a major bust on a major indoor marijuana growing operation on April 20 or in police jargon 420, a date that supporters of legalizing marijuana have traditionally held celebrations nationwide. To achieve this end Sgt. Wingo had spent the better half of a year surveilling local indoor gardening stores taking detailed notes on everyone patronizing the store, from the license plate of their vehicles, the age and sex of the customers and the list of totally legal products they purchased. Unfortunately for Robert Harte, a stay at home dad, chose this time frame to start an educational project with his 13-year-old son and grow tomatoes and other vegetables in their basement.
A series of bad decisions, bad police work and downright illegal conduct by Wingo and his comedy troup the Johnson County Sheriff’s Office (“JCSO) culminated with “Operation Constant Gardener,” which was the publicity stunt that Judge Lucero referred to. From the questionable probable cause for the search warrant (based in part on supposed false positive test of tea leaves in the Harte’s garbage as marijuana), the over the top militarized execution of that warrant and the actions of law enforcement in prolonging the unsuccessful search warrant by more than 2 ½ hours wherein law enforcement illegally expanded the scope of the search to try and gather evidence of any kind of legality so they could save face, all the time holding the Harte family, including children at gunpoint, perhaps the most egregious part of this whole fiasco was that despite the raid on the Harte’s residence did not find any illegality let alone a major grow operation, the list of law enforcement missteps and bad judgment was long.
Again quoting Judge Luceros's opinion:
"When Reddin was informed that the two-and-a-half-hour, seven-man raid yielded nothing but tomato plants, he was furious. “You’re lying to me,” he said to Deputy Larry Shoop when Shoop reported the news, later writing “SON-OF-A-BITCH!!!” in an email to Lieutenant Pfannenstiel, who responded, “Nothing?????????????????????????” After learning that the drug raids were not going well, Sheriff Frank Denning attempted to cancel the pre-planned press conference. But notice of the conference had already been sent, so Denning reluctantly proceeded. The subsequent news coverage, which featured pre-recorded video footage of Denning and marijuana plants purportedly confiscated during the raids, suggested a successful operation across Johnson County, even though no live plants had been seized that day. Notably absent from the news reports was any mention of the law-abiding family wrongfully targeted for their indoor tomato garden."
The judges almost seemed apologetic that they had to affirm official immunity for some of the law enforcement agents in this Keystone Cops caper. For anyone who is concerned over the U.S. Attorney General’s agenda in reviving the War on Drugs and mass incarceration approach to law enforcement this case stands as a stark reminder to its futility and the real threat it poses to the constitutional rights of all American citizens.
Operation Constant Gardener sweep nets drugs, guns, stolen property
OLATHE, KS (KCTV) -
Several agencies across Kansas and Missouri took part in a sweep Friday, serving warrants and seizing marijuana as part of the second annual Operation Constant Gardener.
There are several stories on the significance of 4/20, April 20, in the marijuana counter-culture, but it has become a sort of unofficial holiday for the drug, and those who partake. Friday, several law enforcement agencies decided to celebrate too, with Operation Constant Gardner part two.
The campaign is an effort involving the Johnson and Cass County Sheriff's Offices, the Shawnee and Olathe Police Departments, as well as the Missouri Highway Patrol. Ten warrants on indoor growers were served and, so far, they netted 43 plants, one pound of processed marijuana, four guns, a stolen trailer and ATV, smoking and growing paraphernalia and $13,000 in cash. Additionally, officers also confiscated methamphetamines.
Johnson County Sheriff Frank Denning said the combination of marijuana and meth is becoming more prevalent.
"Marijuana is linked to these other crimes - you're seeing stolen weapons, you're seeing stolen property. We're seeing some other crimes that are associated with personal violence that occurs with it so marijuana may not be on everybody's radar but certainly from our crime lab's statistics, there's certainly a lot of it and it is illegal," he said.
Friday's operation is still ongoing so the confiscation numbers currently reported could go up.
Friday, August 4, 2017
While all very talented in their own right, the combination of John Sieger's songwriting, Paul Cebar's encyclopedic knowledge of and taste in music and its historical roots and Robyn Pluer's beautiful voice, was pure magic. Above everything else their music was joyous and fun. I spent a good part of that decade at their frequent shows at the Union Bar in Minneapolis and even drove to Milwaukee to catch one of their gigs after my brother developed a crush on Robyn.
But nothing that good ever seems to last and the band started to pull in different directions with John and his brother Mike eventually heading west to explore country tinged originals by John with his group Semi-Twang. Paul and Robyn stayed to form the Milwaukeans. I remember one particularly heated dust up at the Union Bar where it became apparent to me that the band's days were numbered. But time heals old wounds and now they were back and no worse for wear.
Friday, July 28, 2017
Well I'm goin' out west
Where the wind blows tall
'Cause Tony Franciosa
Used to date my ma
They got some money out there
They're giving it away
I'm gonna do what I want
And I'm gonna get paid
Do what I want
And I'm gonna get paid
Little brown sausages
Lying in the sand
I ain't no extra, baby
I'm a leading man
Well my parole officer
Will be proud of me
With my Olds 88
And the devil on a leash
My Olds 88
And the devil on a leash
Well I know karate, voodoo too
I'm gonna make myself available to you
I don't need no make up
I got real scars
I got hair on my chest
I look good without a shirt
Well I don't lose my composure
In a high speed chase
Well my friends think I'm ugly
I got a masculine face
I got some dragstrip courage
I can really drive a bed
I'm gonna change my name
To Hannibal or maybe
Change my name to Hannibal
Or may be just Rex
I'm gonna drive all night
Take some speed
I'm gonna wait for the sun
To shine down on me
I cut a hole in my roof
The shape of a heart
And I'm goin' out west
Where they'll appreciate me
Goin' out west
Goin' out west
Friday, June 16, 2017
Saturday, May 27, 2017
So sad to hear #GreggAllman passed. Here is my essay on him on that won a contest on #NoDepression: http://thegreatrollcall.blogspot.com/2015/08/gregg-allman-and-restorative-powers-of.html?spref=tw … …
Tuesday, May 16, 2017
Sunday, January 22, 2017
Indiana Court of Appeals Rules Militarized Search Warrant Unreasonable and Inevitable Discovery Exception Not Applicable to State Constitutional Law
The pushback continues. Add Indiana to the list of states where citizens are pushing back and courts are saying enough already with law enforcement's continued application of over the top military tactics and equipment in routine search warrant executions. Just last week in Watkins v. State, Ind.App.January 06, 2017--- N.E.3d ---- the Indiana Court of Appeals added its voice to the growing chorus or jurists who think law enforcement has lost its perspective on how much force is appropriate when conducting routine drug search warrants. For too long in this country law enforcement, flush with post-911 anti-terrorism money and programs where they can apply for used military equipment from the armed services, have been adopting the tactics and acquiring increasingly lethal implements of war. The problem then becomes they must justify the existence of the equipment with their use, on civilians, which is what they did in Watkins.
The facts in Watkins were that police officers used military-style assault tactics to execute a search warrant on defendant's home. The pre-raid surveillance failed to identify a nine month of baby in the residence despite baby seat and other child items in their line of sight. Although the police did announce their presence, 2 seconds before using battering ram on door and then tossing flash bang grenade into front room that contained only nine-month old baby in playpen.
The Indiana Court of Appeals held the manner in which the warrant was carried out was unreasonable under totality of circumstances, and thus violated the state constitutional prohibition on unreasonable searches and seizures, even though there was a considerable degree of suspicion based on information from confidential informant regarding drugs and gun in home; extent of law enforcement needs for military-style assault was low and degree of intrusion was unreasonably high, particularly in light of deployment of flash bang grenade very close to baby. However the mere recitation of the facts does not quite capture the flavor of the police officers mentality in the case. Perhaps the following exchanges from the trial transcript helps:
"...when asked if he recalled the criminal history of the occupants, he answered: “No I don't, I mean I think there was some sort of drug history and a violent act but I can't say for sure.” Id. at 51. He testified that he did not toss the flash bang into the residence but that “whoever is charged with ensuring that they deploy [a distraction] device is also charged with ensuring that they deploy it into a safe area” and that “you wouldn't want to throw it on any children, you wouldn't want to throw it if there was a meth lab, flammable's [sic], bond [sic] making materials, different things like that, so it is the job of the operator that's actually deploying the device to do the quick peek to check.” Id. at 63. He also acknowledged that the flash bang could catch a carpet on fire." Watkins at *4.
"Officer Taylor testified that he had been with SWAT for eight years and that before he deploys a flash bang and as the door is breached “there's a quick peek, a lot of things were [sic] looking for, people, kids, elderly, smells, and then it gets placed there at the threshold.” Id. at 66–67. When asked if he believed that he complied with the safety protocol, Officer Taylor testified: “Yes, even more so than our standards are.” Id. at 73. He also stated that the SWAT team carries a fire extinguisher." Emphasis added by this writer.
The state then argued that the evidence should still come in despite the unreasonable search in violation of the Indiana state constitution under the inevitable discovery doctrine.
The court wrote "...the inevitable discovery exception has not been adopted as a matter of Indiana constitutional law. Ammons v. State, 770 N.E.2d 927, 935 (Ind.Ct.App.2002), trans. denied. The Indiana Supreme Court has held that “our state constitution mandates that the evidence found as a result of [an unconstitutional] search be suppressed.” Brown v. State, 653 N.E.2d 77, 80 (Ind.1995). See also Grier v. State, 868 N.E.2d 443, 445 (Ind.2007) (“Evidence obtained as a result of an unconstitutional search must be suppressed.”). Despite the State's request, we are not inclined to adopt the inevitable discovery rule as part of Indiana constitutional law in light of the Indiana Supreme Court's firm language. See Gyamfi v. State, 15 N.E.3d 1131, 1138 (Ind.Ct.App.2014) (declining to adopt the inevitable discovery rule as part of Indiana constitutional law in light of the Indiana Supreme Court's firm language in Brown ), reh'g denied; Ammons, 770 N.E.2d at 935." Watkins, Supra at *9.
Clearly there is a growing disconnect between the public's and law enforcement's views as to reasonable force and the judicial branch is using the general unreasonableness in the way a search warrant is executed as a check upon executive branch excess (i.e. excessive use of force by law enforcement).