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Tuesday, April 29, 2014

The Kirking Case: SWAT Tactics in a Low-Risk Minor Drug Bust

     In 2013, DEA agents in northern Illinois on the hunt for home marijuana growers regularly surveilled agricultural retailers where cannabis cultivators were known to purchase their botanical supplies. Agents would follow patrons home and the drug investigations would go from there.

     On September 17, 2013, a DEA agent sitting on Midwest Hydroganics in Crest Hill, Illinois followed a woman from the store to her home in nearby Shorewood. Angela Kirking, 46, had purchased a bag of organic fertilizer she carried out of the store in a green shopping bag. She had no previous arrests for drugs or any other crimes.

     The DEA agent, on suspicion Kirking was growing cannabis in her house, checked her electric bill for February through August 2013. The federal drug investigator discovered that Kirking's electric payments were higher than her neighbors' utility bills. Because people who cultivate cannabis in their homes use relatively large amounts of electricity to power their grow lights, the DEA agent became even more suspicious of Kirking.

      DEA agents, on October 6, 2013, conducted a so-called "investigative garbage pull" at the suspect's house. (In most states and under federal law, a person's trash may be seized without a warrant because it's considered abandoned property that carries no expectation of privacy.) The trash grabbing agent discovered several plant stems that smelled like cannabis.

     Armed with the suspect's relatively high electric bills and the discarded marijuana stems, the DEA agent in charge of Kirking's case acquired a warrant to search her house.

     On October 11, 2013, four DEA agents and five local police officers conducted a pre-dawn SWAT-style raid of Angela Kirking's home. The officers rousted the terrified woman out of bed and at gun-point demanded to know if there were any illegal substances in the dwelling.

     The heavily armed searchers found 9.3 grams of marijuana in one room and a "plant portion" on her patio. The drug cops also discovered three glass pipes, three scales, and two books on how to grow marijuana. The drug raiders also walked off with Kirking's computer and a zip drive.

     Because the raid didn't produce enough evidence to warrant a federal drug charge, a Will County prosecutor charged Kirking with two state misdemeanor drug offenses.

     Nine heavily armed police officers had conducted a pre-dawn, no-knock raid of a home occupied by a middle-aged woman with no history of crime. Moreover, the DEA investigator knew his suspect was not a player in an organized drug operation. In other words, the raiders knew they were not storming a drug lord's house. Predictably, the officers found no guns or a cache of drug money.

     In the Kirking case, an unarmed DEA agent could have knocked on this woman's door in the middle of the day, showed her the search warrant, and conducted a routine, orderly search of the premises. But pursuant to today's militaristic style of policing, that approach never crossed this agent's mind. Pre-dawn SWAT raids are a lot more fun. They are also a lot more dangerous--for the civilians involved. Had Kirking picked up a gun thinking the cops were criminal home invaders, she would have been killed,

     Kirking's attorney, Jeff Tomczak, is fighting to get the case thrown out of court. He argues that the DEA agent did not present enough probable cause to legally justify the issuance of the warrant. While this may or may not be the case, the bigger policing issue involves the unnecessary and dangerous employment of SWAT tactics to enforce minor, low-risk offenses.

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