Probable Cause Not So Probable Any More

I wrote not so long ago about the apparent irrelevance of the Fourth Amendment. It seems that when police do go to the trouble of getting a search warrant they can base it on nothing more than your electricity consumption-

When California narcotics agents armed with a search warrant recently arrived at the Carlsbad home of the Dagy family (Mom, Dad, three kids), they expected to find one of those indoor marijuana production facilities....As the below search warrant affidavit notes, a check of the Dagys utility records showed "excessive" electrical usage, consumption "very consistent with an indoor marijuana operation."

But electricity isn't all they had to go on-

In his affidavit, Detective Mark Reyes also noted the Dagy family's suspicious "trash dispensing pattern" and mentioned that a drug-sniffing dog, one Storm, "showed a positive alert" when he sniffed near the family's garage.

So what happened when they searched?

So imagine the surprise when about eight armed narcs raided the Dagy home on March 19 and found absolutely nothing. No evidence of pot anywhere, not even stashed in the children's toys. Seems that the coppers mistook the family's constant use of the dishwasher, washer/dryer, three computers, four ceiling fans, and other electronic devices as evidence of a felony drug operation.

Nothing drug related so one wonders how on earth the police came to want to search this house?

An unknown agent received a tip-off from an unknown source. So the police officer in question subpoenaed utility records for the address, he checked County and CPD records, Dept. of Motor Vehicles records, and carried out surveillance and consulted other police officers. All of of this established who lived there and what kind of car they drove. However, the electricity records were then apparently compared to those of the neighbouring homes.

Can the police obtain access to your utility bills because they think that someone else on your street might be a criminal? Apparently so- though there's no mention of him obtaining a court order to obtain those other records- and what basis he had to look at them. This expert on indoor marijuana production then had a 100% effective sniffer dog check the residence. And here I was thinking that only God was counted as being completely infallible! He also tried to get an aerial infra-red view of the home but weather stalled it. Next he conducted surveillance for two weeks and noted the family's highly suspicious practice of taking their trash out, not the night before collection, but on the morning it was due to be collected!

So there you have it- grounds for a warrant that boils down to an anonymous second hand tip off and above normal electricity use. Astonishingly they did not attempt a dynamic entry but actually phoned the resident to let her know they were there- and bear in mind this was a raid on a suspected drug dealer suspected of being armed.

The message was forwarded to Dina Dagy, who was in her son's second-grade class as a volunteer. She said she was told police were going to break the door down if she didn't open it for them.

She has received an apology from police but she is upset about the level of evidence gathered to obtain the warrant to search her home.

Professor Laurence Benner of the California Western School of Law in San Diego said that the court standard set for obtaining a search warrant is that an officer must have probable cause to believe something is at a certain location.

"The problem is that the Supreme Court has watered down what that standard means as a practical matter," Benner said.

Note this too-

In a 1959 case, Draper versus the United States, he said, the court held that probable cause existed where the facts and circumstances would lead a man "of reasonable caution" to believe that an offense had been committed.

"It would have to be more probable than not" that there was an offense, Benner said.

In 1983, he said, the court redefined probable cause in Illinois versus Gates so that less evidence is required to get a search warrant.

That decision says that a judge has to make a practical common sense decision to issue a warrant when, given all the circumstances, "there is a fair probability that contraband or evidence of a crime will be found in a particular place," Benner said.

How times have changed.