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KopBusters Hoax Looks Like It Was a Hoax Itself:
A few weeks ago, I posted about what was supposed to be a new reality TV show, "KopBusters," that showcased police misconduct. The first show was about a fake drug house in Odessa, Texas, that the police allegedly raided without probable cause based on a bogus warrant. I then added an update, to the effect that "[s]ome of the details about the show and the first episode seem sort of fishy at this stage, so perhaps it is best to approach this story with a healthy skepticism."

  I thought it would be interesting to see if there were any new developments on the story, and it seems that recent developments point in the direction of the show being a misrepresentation and the claims of police misconduct being false. In particular, it seems that KopBusters staffers themselves made an anonymous tip to try to cause the police to get a warrant. (The show director has declined to say whether staffers sent in the tip -- a weird position perhaps best explained by the fact that making a false crime report is a crime. However, a Google cache of the show's message board shows a post, since edited, indicating that it did. Compare a contemporary reference to the pre-edited version here with the edited version here.)

  In light of these developments, the KopBusters show is now taking the view that the episode doesn't show police misconduct but rather "judge misconduct," on the theory that the anonymous tip shouldn't have amounted to probable cause and the judge shouldn't have signed the warrant. (See here, at the bottom.) The problem with this argument is that as explained here, the anonymous tip had a number of details that would help corroborate the story and help create probable cause. It's hard to know without actually reading the affidavit whether its facts actually amounted to probable cause, but an anonymous tip can create probable cause if it's sufficiently detailed and the police corroborate those details, see Illinois v. Gates, 462 U.S. 213 (1983). I would need to read the warrant affidavit to know if that happened here. But at the very least the claims of police misconduct appear to be false, and all we seem to have left are some debatable claims that a judge may have signed a warrant that may have been based on less than probable cause.

Related Posts (on one page):

  1. KopBusters Hoax Looks Like It Was a Hoax Itself:
  2. KopBusters Reality Show:
Prosecutorial Indiscretion:
Stupid stunts like this provide cover for police officers who do cut corners and abuse their authority. This whole mess appears to be more about the producers' egos and less about deterring police misconduct.
12.29.2008 1:17am
MIke& (mail):
But at the very least the claims of police misconduct appear to be false

I'm not so sure. My understanding of the KopBusters story was as follows: "Yeah, we called in the tip. But we didn't give enough details to establish PC. We know that the police would have inserted some other details in order to establish PC." That's why, when the police showed up, they demanded a copy of the warrant.

If that is indeed what happened, then there'd still be serious police misconduct.

I'd like to see the warrant. Which, so far as I know, police have not released.
12.29.2008 1:35am
OrinKerr:
Mike&,

First, the police have released the affidavit and warrant to both KopBusters and the media.

Second, KopBusters is refusing to answer whether they called in the tip.

Third, I believe the only remaining allegation of police misconduct from KopBusters is the claim that perhaps the police made up the tip that KopBusters is refusing to answer whether they called in.
12.29.2008 1:45am
Daryl Herbert (www):
Can the officers in question sue for slander? They were basically accused of fabricating a witness for a warrant (lying under oath to get their warrant).

That would "bust" KopBusters pretty good.

If that is indeed what happened, then there'd still be serious police misconduct.

No. If the police act in good faith on a warrant issued by a neutral magistrate, the warrant is good and the police are blameless. Establishing that the police acted in bad faith by giving a tip to a judge is going to be a very tough sell.
12.29.2008 2:30am
Anon21:
Daryl Herbert:
No. If the police act in good faith on a warrant issued by a neutral magistrate, the warrant is good and the police are blameless. Establishing that the police acted in bad faith by giving a tip to a judge is going to be a very tough sell.

What Mike&is construing as KopBusters' position is that the police fabricated details beyond the anonymous tip in order to increase the likelihood that a judge would find probable cause and issue a search warrant. Lying in a warrant affidavit would certainly be police misconduct. But, as Prof. Kerr points out, there's no evidence that that's what happened.

This is disappointing--I do believe that there's a substantial amount of low-level police misconduct surrounding procedural hurdles like probable cause for search warrants and properly interrogating suspects in compliance with Miranda but as Prosecutorial Indiscretion rightly points out, faked stunts like this only provide cover to the actual bad cops out there. I hope some nonprofit tries something along these lines in the future, but doesn't engage in lying or feeding police bad info in order to prove its point.
12.29.2008 2:58am
MIke& (mail):
First, the police have released the affidavit and warrant to both KopBusters and the media.

Cool. I haven't seen it. Have you read it?
12.29.2008 3:57am
Malvolio:
This is disappointing--I do believe that there's a substantial amount of low-level police misconduct
Hmmm, shouldn't this be good news? "Whew, at least some cops aren't corrupt!"

Otherwise, you are something like the global-warming types who seem enormously cheered by every bit of bad news. "Yippee, the polar bears are drowning! Proves I'm right!"
12.29.2008 4:08am
LM (mail):

The show director has declined to say whether staffers sent in the tip -- a weird position perhaps best explained by the fact that making a false crime report is a crime.

If the Producers get to make reality TV out of their own trial, this sounds like a win-win.
12.29.2008 5:42am
lonetown (mail):
I thought it odd at the time that their main purpose seemed less to bust crooked cops and more to get their friend out of jail.
12.29.2008 9:19am
Bruce:
This show sounds like it was created by Homer Simpson.

Homer: My new television show is making millions! It's a hit!

Marge: That's wonderful, dear! What's it about?

Homer: Well, all we do is call in phony tips to the police. Then when they bust the door down, we've got them on tape committing police misconduct! It's ratings gold!

Lisa: Dad, calling in a false tip is a crime.

Homer: D'oh!
12.29.2008 10:20am
Per Son:
^^ best post ever!

Kopbusters just feeds the trolls who say that police misconduct is extremely rare. It is also insanely stupid. If you really want to help victims of police misconduct, or victims in general, there are probably a lot more venues.

My guess is that Kopbusters is probably about stopping police brutality as much as Girls Gone Wild is about young female self expression.
12.29.2008 10:35am
Mr L (mail):
My understanding of the KopBusters story was as follows: "Yeah, we called in the tip. But we didn't give enough details to establish PC."

According to the article, the story they're peddling now is that the police 'should have known' it was a bad tip because they couldn't smell marijuana from the AC unit, which is stupid. As for establishing probable cause, I'm no lawyer but the reported details seem comparable to those in Illinois v Gates.

Daryl: Lawsuits are probably unnecessary, given the actual criminal charges potentially at play.
12.29.2008 10:45am
whit:

Kopbusters just feeds the trolls who say that police misconduct is extremely rare.


i don't know how you define "extremely rare", but it's ridiculous to say that such a claim equals being a troll.

i used to think police misconduct was pretty common UNTIL i became a cop. i am well aware it happens, have read serpico, and prince of the city, bla bla.

it also varies significantly from agency to agency. you can blame everything from lax hiring standards/preferences (DC comes to mind), to horrendous pay and a culture of corruption (new orleans), etc.
12.29.2008 11:20am
loki13 (mail):
Whit,

Are you sure you haven't seen personally seen HUNDREDS of examples of corruption in the MANY jurisdictions you have been in? Tell us more!
12.29.2008 11:53am
SFC B (mail) (www):
I don't care about police corruption or staged reality TV. What I want to know is who the heck is the insurance company that is covering Kopbusters' production? Can you imagine the liability if something were to have happened while serving this warrant? Suppose some crew member winds up shot? Between the network airing it, the production company, the producers, and the police involved someone's next-of-kin will be rich.
12.29.2008 12:24pm
Fidelity (mail) (www):
SFC B, Barry Cooper is funding and producing this whole thing, as far as I can tell, from the sale of his controversial DVD's about avoiding traffic stops and marijuana. Both DVDs are great, I would recommend anyone working in law to watch Mr. Cooper talk about profiling, illegal searches, and threatening people with crimes they can't be charged for - day to day activities for a drug cop in West Texas, apparently. Maybe if that's so, that's why the KopBuster program was made.

Orin Kerr, if you find that affidavit and warrant I'll send you $20 paypal. You even say in your OP that you need to read it.
12.29.2008 1:58pm
Per Son:
Whit:

My experience has been living in DC and Columbus, OH. I should also add that I spend lots of time representing law enforcement.

Do I believe that most cops are good people who want to stop bad guys? Yes.
12.29.2008 2:08pm
Anony Mouse:
From the KopBusters site, and here's the article they reference.

According to the Odessa American, Officer Garcia was the kop who swore on the warrant affidavit that Preacher Pierce gave him the anonymous letter. The Odessa American reports Preacher Pierce is denying any knowledge of the letter. We then learned the preacher is an Odessa Police Department Chaplain. Hmmmmmmm. Crazy things happen in small Texas towns. Go check this out and be certain to vote in their pole regarding KopBusters.
12.29.2008 3:14pm
LM (mail):
loki,

Do yourself a favor and lighten up.
12.29.2008 4:40pm
ScottB (mail):
Ok, loki13- I've got to ask you something. You have decided to hound Whit every time he posts. He is a police officer who cares enough to read about legal issues on his off time. He is in favor of the legalization of drugs. I've reviewed your past conversations with him, and haven't found him to have said anything crazy to you. He's probably far closer to the libertarian ideal of law enforcement than 90% of the cops you're going to meet. He's active on a libertarian weblog. Why do libertarians insist on creating arguments with people who basically agree with them?

I am a cop too, and my own views have been heavily influenced by libertarian thinking. But I often encounter this hostility myself, and I can't help but think that libertarians are pushing away potential converts. I would think that libertarians would be thrilled to have police officers reading libertarian thought. Don't you agree, loki13? Lighten up on Whit. He's one of the good guys.
12.30.2008 6:05am
whit:
scott, props.

btw, i have noticed the same thing. the reason.com website blog is a great example of this.

i guess it goes like this. libertarians hate authority (don't we all). cops represent authority. therefore, cops suck.

or something...
12.31.2008 1:44pm
DW (mail) (www):
I don't think the existence of an anon tip is sufficient to get the police off the hook here. It's an accepted fact that some semblance of believability is necessary to verify an tip, so it's reasonable to expect the police to undertake some effort towards validation. Treating them as naive children incapable of following reasonable process and absolving them of guilt if the judiciary doesn't stopgap them isn't reasonable.

Perhaps there are no surveillance or validation steps possible for the police without a warrant, in which case they should be expected to garner one for non-invasive investigation. Perhaps they should have been expected to simply knock and request access, or look into uncovered windows to the extent they're allowed by law.

The linked oaoo.com post reveals that the anonymous letter details that there is a house at a certain location which has a nearby car with removed plates, tinfoil covered windows, and certain attributed which no reasonable person could consider suspicious (a chimney and an air-conditioning unit). The verification steps taken by the police merely ascertain that these facts are true, which doesn't strike me as useful in determining that there's any probable cause. I can look out my window and provide you with similar levels of detail about any of my neighbor's houses. Would that thereby elevate my letter to sufficient reason to invade their homes? I don't think a reasonable person would believe so.

If the person they determined was the renter of the home had some history of drug trafficking offenses or even connections to drug traffickers that might be a different story. However the connection merely seems to be that the person in indeed from Ohio. How is the useful information in believing that there's probable belief a crime is in progress?

The fact that the letter was supposedly delivered by a person with some credibility but that person denies being the recipient of the letter or providing it to police is a huge red flag in my opinion. That's a demonstrable falsehood on the part of the police and certainly counters the claim that there is nothing more than judicial laxness here.

The police have a finite quantity of time to enforce the law and have to prioritize their efforts based on severity of potential crime and quality of information. I don't think there's any credible position that their pursuit of this matter represents a useful use of their resources. That a private person with an axe to grind might have attempted to direct them in a bad direction isn't terribly useful in my opinion.

Barry Cooper could just as easily have been a local busybody who reports every occurrence of a neighbor failing to scoop their dog's poop, a disgruntled teen anonymously lashing out at a teacher who she felt had wronged her, a gang member trying to gain advantage over a rival, or any other private citizen who might have legitimate if unfounded concerns. We do not expect as rigorous a standard from these individuals, nor do we fund them with our tax dollars or need them to balance their efforts in this area with other priorities. Giving the police force added leeway because Cooper might not have been as diligent and reasonable as we'd like him to be isn't sensible.
1.1.2009 2:44pm
whit:

I don't think the existence of an anon tip is sufficient to get the police off the hook here. It's an accepted fact that some semblance of believability is necessary to verify an tip, so it's reasonable to expect the police to undertake some effort towards validation. Treating them as naive children incapable of following reasonable process and absolving them of guilt if the judiciary doesn't stopgap them isn't reasonable.



in many jurisdictions, aguilar-spineli test applies.

imo, aguilar-spineli is a reasonable way to weigh credibility, basis of knowledge, probable cause, etc.

i've done (written or been involved) in dozens of warrants for a home. an anonymous tip has never been anywhere near enough to justify a search warrant. nor should it be.

like ALL pc questions, it's a totality of the circumstances test.

fwiw, i've never done or been involved in a search warrant for a grow that did not result in - a grow.
1.1.2009 3:28pm
Oren:

fwiw, i've never done or been involved in a search warrant for a grow that did not result in - a grow.

Duh. That's not the point -- the point is that the 4A requires you to leave those grows alone.
1.2.2009 5:25pm

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