The Leawood, Kansas, couple whose home was raided in 2012 after sheriff's deputies claimed that loose tea found in their trash was marijuana will get another chance to argue that the SWAT-style operation violated their constitutional rights. This month the U.S. Court of Appeals for the 10th Circuit ruled that Adlynn and Robert Harte, who lost their case after a jury trial in 2017, were wrongly denied the opportunity to pursue several of their claims against the Johnson County sheriff's deputies who stormed into their home as part of a comically inept publicity stunt. The deputies detained the Hartes and their two children for more than two hours while they desperately searched for evidence of a nonexistent marijuana grow operation.
The Hartes' ordeal began with an innocent trip to a Kansas City garden supply store in August 2011. Sgt. James Wingo of the Missouri State Highway Patrol, who had staked out the Green Circle Garden Center in the hope of identifying hydroponic pot growers, saw Robert Harte enter the store and emerge with a small bag. Harte was planning to grow vegetables with his son as a science project, but to Wingo he looked like a cannabis kingpin. Wingo wrote down Harte's license plate number, looked up the name of the registered owner, and passed the information on to Sgt. Tom Reddin of the Johnson County, Kansas, Sheriff's Office, who was planning to conduct marijuana raids on April 20, the unofficial stoner holiday, to show that local authorities were aggressively waging the war on weed.
Johnson County's deputies did not begin to follow up on the tip from Wingo until early April, a couple of weeks before the big event, so they were in a hurry. Searching the Hartes' trash on April 3, Deputies Edward Blake and Mark Burns found "a small amount of wet, green vegetation," which they did not deem suspicious. A week later, Burns rummaged through the Hartes' trash again and found the same leaves, which he suddenly decided looked like "wet marijuana plant material." A drug field test supposedly confirmed Burns' suspicion, showing a positive result for THC. Burns, accompanied by Blake, returned once more on April 17, just three days before the already planned marijuana raid, and found more leaves, which again supposedly tested positive for THC.
"The deputies did not photograph any of the substances, nor did they send them to a crime lab for testing," Judge Joel Carson notes in this month's 10th Circuit decision. "If the deputies would have sent the wet vegetation to a crime lab for testing, they would have discovered that the wet vegetation was not marijuana but instead was Addie's loose-leaf tea. Rather than conducting further investigation, the deputies prepared a search warrant affidavit relying solely on the loose-leaf tea found in the garbage and Bob's shopping trip to a garden store eight months earlier." The deputies did not even bother looking into the Hartes' background, which included clean criminal records and stints as CIA employees with the highest level of security clearance.
Field tests for drugs are notoriously unreliable. In 2017, the last time the 10th Circuit considered this case, Judge Carlos Lucero cited a study that "found a 70% false positive rate using this field test, with positive results obtained from substances including vanilla, peppermint, ginger, eucalyptus, cinnamon leaf, basil, thyme, lemon grass, lavender, organic oregano, organic spearmint, organic clove, patchouli, ginseng, a strip of newspaper, and even air." The label on the test kit used by Burns warns that its results "are only presumptive in nature" and should be confirmed by laboratory analysis. Yet Sheriff Frank Denning, who authorized the search of the Hartes' home without laboratory confirmation of the field test results, claimed he had never heard such tests could generate false positives, despite four decades in law enforcement and despite the warning on the label.
Burns confessed that he had never seen loose tea before but thought, based on his training and experience, that it looked like marijuana leaves. A lab technician consulted after the raid disagreed, saying the leaves found in the Hartes' trash didn't "appear to be marijuana" to the unaided eye and didn't "look anything like marijuana leaves or stems" under a microscope.
On the day of the raid, Judge Carson notes, "Bob opened the front door" shortly before 7:30 a.m., "and the deputies flooded in the foyer. Bob ended up on the ground with an assault rifle pointed at or near him. The deputies ordered Addie and the couple's two young children to sit cross-legged against a wall. A deputy eventually allowed the family to move to the living room couch where an armed deputy kept watch over them."
It soon became clear that Johnson County's cops had screwed up. "After searching the home for about fifteen to twenty minutes," Carson writes, "the deputies found the hydroponic tomato garden that was readily visible from the exterior of the home through a front-facing basement window. And after ninety minutes of extensive searching, a couple of the deputies claimed to smell the 'faint odor of marijuana' at various places in the residence. A drug-detection dog showed up, but did not alert the officers to any other areas of the house requiring further searches. The dog's handler also did not smell marijuana."
That's not surprising, since the deputies found no marijuana or any other evidence of illegal activity, even after searching the house "from stem to stern." But the same deputies who did not know the difference between tea and marijuana also did not realize there could be a legal explanation for the purchase of hydroponic gardening equipment. Blake "testified that up to that point in time, he had never seen a layout of a hydroponic- grow operation similar to Plaintiffs' that was not being used to grow marijuana."
The Hartes' attempts to find out how they had come to be targeted for this humiliating and traumatizing home invasion were initially stymied by Denning's refusal to share the relevant records. His outrageous stonewalling ultimately led to reform of the state's public records law.
After the Hartes filed their federal lawsuit in 2013, a judge dismissed all of their claims, but a 10th Circuit panel overturned that ruling in 2017. The 10th Circuit's decision included three separate opinions reaching different conclusions based on different reasoning, and the district court had trouble sorting them out. During the ensuing trial, the Hartes were limited to a single federal claim, which hinged on whether the deputies had lied about the field tests. The jury decided that the Hartes had not proven that claim.
In its new decision, the 10th Circuit says the district court erred in limiting the Hartes to that one federal claim. The court has again remanded the case, saying the Hartes should be allowed to pursue three other claims: "(1) whether Defendants properly executed the warrant; (2) whether the deputies exceeded the scope of the warrant by searching for evidence of general criminal activity; and (3) whether the deputies prolonged Plaintiffs' detention, thus subjecting them to an illegal arrest."
In addition to those issues, there is the question of whether the defendants are entitled to "qualified immunity," which depends on whether the relevant case law was sufficiently clear at the time of the raid. So even if the deputies did violate the Hartes' Fourth Amendment rights, that does not necessarily mean they can be held responsible for doing so. Whatever the ultimate outcome, the Johnson County Sheriff's Department has been subjected to well-deserved scorn and ridicule for its lazy, unprofessional, ill-informed, and constitutionally oblivious tactics.
Judge Lucero summed up the case well in 2017. "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," he wrote. "There was no probable cause at any step of the investigation. Not at the garden shop, not at the gathering of the tea leaves, and certainly not at the analytical stage when the officers willfully ignored directions to submit any presumed results to a laboratory for analysis. Full stop."
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