Tenth Circuit Strips Qualified Immunity After Sheriff’s Office Raids Home Of Tea Growers

By Darren Smith, Weekend Contributor

There are some cases where probable cause is questioned and there are a few others that leave me shaking my head in disbelief of how ridiculous some officers can be.

The Tenth Circuit Court of Appeals recently handed down a stinging rebuke of the Johnson County Sheriff’s Office and its deputies some of whom, Plaintiffs claim, lied about a field test of a suspected Marijuana product, finding evidence of marijuana grow derived from purchasing tools at a gardening retailer somehow established probable cause sufficient to send in a SWAT team to execute a search warrant and detain a couple for several hours.

The leafy green vegetable matter in question was not marijuana but tea leaves.

It is a classic example of department officials promising to make a publicity garnering drug sweep and when arrests are not made, someone must be sent to jail at all costs. And as can often be the case with such maligned efforts the end result was a civil rights lawsuit in federal court.

The Tenth Circuit minced no words when it began its published opinion with the following:

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.

On August 9, 2011, Robert Harte and his two children visited the Green Circle Garden Center, a garden store, where they purchased one small bag of supplies. Harte was a stay-at-home dad, attempting to grow tomatoes and other vegetables in his basement as an educational project with his 13-year-old son. Unbeknownst to Harte, Sergeant James Wingo of the Missouri State Highway Patrol was parked nearby in an unmarked car, watching the store as part of a ‘pet project.’ Wingo would often spend three or four hours per day surveilling the garden store, keeping meticulous notes on all of the customers: their sex, age, vehicle description, license plate number, and what they purchased. On this particular day, Wingo observed Harte’s visit and recorded the details in his spreadsheet.

More than five months later, Thomas Reddin, a sergeant in the Johnson County Sheriff’s Office (“JCSO”), emailed Wingo about the possibility of conducting a joint operation on April 20, 2012. The idea stemmed from a multi-agency raid on indoor marijuana growers that was conducted on the same date the previous year. That raid, known as “Operation Constant Gardener,” was spearheaded by Wingo on the basis of several hundred tips he had amassed from his garden store surveillance. Wingo chose April 20 because he understood that date to be “Christmas Day” for marijuana users. Approximately thirty law enforcement agencies participated in the 2011 operation, including the JCSO. Although the operation yielded some success, it also resulted in the search of at least one home containing nothing but tomato plants, which became a running joke amongst the agencies.

When asked by Reddin about a second Operation Constant Gardener in 2012, Wingo replied that he “[didn’t] really have enough new contacts to justify a full throttle 420 operation.” He offered to share the names he did have, although he was not planning to participate in any raid himself. On March 20, 2012, Wingo sent Reddin a list of names, including Harte’s, from the garden store surveillance. Thus, over seven months after Harte made his single, innocent trip to a garden store with his children, he became a criminal suspect in the JCSO’s marijuana grow investigation.

Undeterred by the limited pool of suspects provided by Wingo, Reddin was determined to “at least mak[e] a day of it,” even if the Missouri Highway Patrol was not going to conduct a “full blown” operation. Despite not yet having probable cause for search warrants, and with only four weeks to investigate, the JCSO began planning a press conference to celebrate the success of their operation. The pressure was on for JCSO officers to find probable cause by April 20.

Robert Harte was and is married to Adlynn Harte. Mrs. Harte did not accompany her husband on his visit to the garden store, and we are told nothing about why she was a suspect. The “investigation” of the Hartes was nominal at best: Despite believing the Hartes had a marijuana grow operation somewhere in their home, the JCSO did not conduct surveillance, check utility records, look for fans or other alterations typically used to conceal grow operations, or notice the tomato garden readily visible through a front-facing basement window. There is also no evidence, aside from the apparent discovery of a traffic ticket, that anyone at the JCSO even conducted a background check on the Harte family. If they had, the record tells us that they would have learned that Robert and Adlynn Harte were both former CIA employees with the highest level of security clearance; Mrs. Harte worked as an attorney at Waddell and Reed Financial and was a graduate of the Leawood Citizens Police Academy; her brother was also an attorney, formerly for the Navy JAG Corps, and an ex-New York City police officer trainee; the Hartes had a son in seventh grade and a daughter in kindergarten; and they had no criminal record other than the aforementioned undesignated traffic ticket.

Instead, the entirety of the JCSO’s investigation of the Hartes consisted of three “trash pulls.” On April 3, 2012, Deputies Mark Burns and Edward Blake found wet green vegetation mixed in with the Hartes’ kitchen trash. They determined it was not suspicious. Burns found the same wet green vegetation when he returned to the Hartes’ home with Deputy Nate Denton on April 10, 2012. This time, with only ten days before JCSO’s planned press conference on the success of its April 20 raid, the previously innocuous vegetation was considered to be wet marijuana plant material. Burns asserts that he field tested the plant material found on April 10 using a Lynn Peavey KN reagent test kit, and that it was positive for marijuana. However, there is no record of that test because, although Burns thought it good practice to photograph the results of field tests and had done so in other situations in the past, he did not take pictures of the plant material or the KN reagent test results. The deputies needed one more positive trash pull before they could seek a warrant. So, on April 17—with only three days before the preplanned raid—Burns and Blake conducted one final trash pull from which they found the same green vegetation. They claim that vegetation field tested positive for marijuana, but once again, the officers did not photograph this crucial evidence.

With nothing more than Harte’s one trip to the garden store over eight months earlier and two allegedly positive field tests, the JCSO went straight for a search warrant. The directions for use of the test clearly provide “that these tests are only presumptive in nature” and “will give you probable cause to take the sample in to a qualified crime laboratory for definitive analysis.” Officers opted against sending the vegetation to a lab for confirmation, despite having the ability to do so. Had the officers taken that extra step, they would have saved the Hartes a traumatic and invasive experience and themselves the embarrassment of a botched investigation. The “marijuana,” officers would soon learn, was nothing more than loose-leaf Teavana tea.

As if the botched investigation were not enough, the JCSO subsequently executed an excessive, SWAT-style raid. The officers did not consider it a high-risk entry, yet Lieutenant Mike Pfannenstiel dispatched a team of seven officers to the Hartes’ home on the morning of April 20. Even more concerning, the officers timed the raid for when the Hartes’ children would be home but failed to create any safety plan in anticipation of risks to the children.

At approximately 7:30 a.m., the seven JCSO officers, clad in “black swat-type uniforms” and brandishing 9 millimeter Glocks, an AR-15 assault rifle, and a battering ram, approached the Hartes’ house. Harte heard pounding on the door and opened it to find an apparent tactical team ready to storm the house. Mrs. Harte recalled hearing “screaming and loud banging, so hard that the walls were rattling and it sounded as though our front door was coming off the hinges.” She ran down the stairs to find a team of officers flooding the foyer, shouting at her to put her hands behind her head, and Harte lying face-down and shirtless, an officer holding an assault rifle over him.

The Hartes were kept under armed guard on the family’s couch as the officers carried out a search of the home. In the first 15 to 20 minutes of their search, they discovered nothing more than what had been in plain view all along: a tomato garden. Yet, despite this strong evidence that the Hartes were not concealing a marijuana grow in their home, the officers continued their search for two and a half hours, even bringing in a drug-sniffing dog after over an hour of searching proved fruitless. Throughout this entire period, the Hartes were not permitted to leave, even though there were no charges against them. The officers went so far as to refuse a concerned neighbor’s request to remove the children from the home during the search.

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.

Plaintiffs argue three violations of their Fourth Amendment rights:

  1. Unlawful search, conducted pursuant to a false and misleading search-warrant affidavit
  2. Unlawful seizure
  3. The use of excessive force in carrying out the search.

The U.S. District Court granted summary judgment in favor of the government and its agents, granting qualified immunity. However, as any reputable tasseomancer will attest: what the District Court giveth, the Appeals Courts taketh away.

Harte, et al v. Board Comm’rs Cnty of Johnson, et al

By Darren Smith

Photo Credit: Wikimol

The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.

44 thoughts on “Tenth Circuit Strips Qualified Immunity After Sheriff’s Office Raids Home Of Tea Growers

  1. Oh my, that was so bad. Was this raid planned by Mel Brooks?

    What strikes me in this case was that it had to make it to Appeal. How many people would have had the finances to fight not just one court case, but take it all the way to the Tenth Circuit Court of Appeals? For most, justice would have been financially out of reach. I am curious as to why the District Court ruled against them in the first place, given the failure to send the test sample to the criminal lab for further testing. If there is any silver lining, I hope that the police department in question revises its protocols to ensure that the proper chain of events takes place before a raid.

    There seems to have been a series of unfortunate mistakes, or even malfeasance:

    These types of SWAT style raids are how people get hurt. Someone thinks its robbers and swings a bat at them, or shoots, or their dog runs forward growling and gets shot. I’m not in law enforcement, but this seemed an inappropriate application of this tactic.

    Burns’ alleged field test is concerning because his failure to photograph was out of character. Granted, it is possible to have a false positive in any field lab test due to cross contamination. There is no way to tell if he had a false positive or made it up, and it is concerning that we can’t know. If he had photographed his result, then this would have at least supported his claim to have been sincere, and it would protect other officers in similar positions. If the field test indicates that a positive result should be followed up with an in house lab test, then that is what should be done.

    Also, did Wingo fail to give any notes to the Harte’s garden supply run to Reddin? They must have bought either hydroponic supplies or grow lights, or something similar, to raise suspicion of a marijuana grow. Police officers may not realize that gardeners grow orchids under grow lights, start seeds, or just garden indoors for fun or to combat the ravening hordes of rodents and snails. Did Wingo produce any sort of note as to what they purchased, or did he merely provide a list of names as probably suspects, setting Reddin up to be biased?

    Clearly the department needs some sort of safeguard to prevent bias from translating into such a string of bad decisions.

    In addition, the pre-booking of the news conference created the pressure to produce results that may have tempted various officers to cross the line, out of desperation. This happens in the lab so often that it is the exact reason why there are double blind studies. It is imperative that the analyst not know the identity of the samples he or she is dealing with, and what’s placebo, because human nature is so very strong to produce what you expect. And sometimes you’ll keep testing over and over again until you get the false positive or negative that finally confirms what your mind expects. (This is also why there are rules in the lab as to repeating assays, and the maxim “you get what you get”.) They even now automatically track the results that come out of any networked lab equipment to prevent repeat testing and throwing away of results the analyst doesn’t like.

    There is a lot that police departments can learn from private industry, whose rules were created out of lawsuits. Learn from others’ mistakes.

    I’m very sorry for the trauma suffered by the family, and most especially the children.

    • I just read the judgement and I was incorrect. The District Court did rule previously in favor of the Hartes on some of their counts, but against the unlawful search and seizure.

      From the Tenth Circuit Court of Appeals:

      “We AFFIRM the district court’s grant of summary judgment on all claims asserted against defendant Jim Wingo. We similarly AFFIRM as to the plaintiffs’ excessive force and Monell liability claims. However, we REVERSE the district court’s grant of summary judgment on the unlawful search and seizure claims asserted against the remaining defendants. On remand, plaintiffs’ claim under Franks v. Delaware, 438 U.S. 154 (1978), is limited to their theory that one or more of the remaining defendants lied about the results of the field tests conducted in April 2012 on the tea leaves collected from the plaintiffs’ trash. We further REVERSE the grant of summary judgment as to the four state-law claims raised on appeal. We REMAND these claims to the district court for further proceedings not inconsistent with these opinions.”

      Please also note that the reason why this family was entitled to justice was their Constitutional rights against unlawful search and seizure.

      Please take care not to undermine our Constitution…

      And I absolutely cringed reading the Court’s statements about Officer Burns’ credibility, “Viewed together, these facts are sufficient to permit a conclusion that the officers fabricated the “positive” field tests.”

      This may cast doubt on every case in which he provided material evidence.

    • Oh, and there is this: “One study 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. As demonstrated by this litigation, caffeine may now be added to that list.”

      Based on the above, either the field test is a child’s play chemistry set, or the officers are not following the SOP. A 70% false positive rate in any assay would never pass the FDA. At first I thought the assay was targeting one of the terpines or some other chemical component that could be shared by numerous essential oils, including those found in marijuana, but newspaper? Air? Was the flaw in the study itself, or is the assay really that inaccurate?

      You can get a false positive if you screw up donning sterile gloves. If the package gets contaminated, like if it’s in the trunk of a police cruiser where they store evidence, and you get it on your fingers, which transfers to the gloves, that can contaminate the sample and throw a false positive. Usually, kits have the sterile gloves inside the entire kit package, but I don’t know if that’s the case for forensic test kits like this. Or, it could be the the study researchers had trouble with cross contamination. If the study used a contract lab to get people to test the kits, some of those can have a terrible reputation for inaccuracy.

      Now that the cat’s out of the bag on a 70% false positive rate (!!!!) on that field test, you can assume they will now be snowed with legal headaches for anyone who was arrested based on probably cause from those kits.

    • Karen S – the police here were on loan from the Sheriff’s Dept of Reno 911! If you have ever seen them execute a raid, it is very similar.

    • Generally in areas where attorneys are reasonably available, getting one to take this kind of case on a contingency is relatively easy because attorneys fees are recoverable for even a partial victory.

  2. It seems to go with authority; it can never be wrong, do wrong, admit it’s wrong. We have the supreme example of that with the supreme leaders of this world: North Korea, Russia, ?, just about every politician in America. What some societies want more than anything is something rock solid, regardless of whether it’s right or wrong or left.

    • “It seems to go with authority; it can never be wrong, do wrong, admit it’s wrong” – welcome to the argument against Big Government. It is dangerous to keep giving too much power and control to the government, because it relies on a benign dictatorship, which is just not in our nature.

      • This is not unique to Big Government. You can’t argue with a millionaire or a billionaire. Authority feeds ego feeds intractability feeds fear. Most people in positions of authority are either afraid of what might happen to their authority if they admit a mistake(s) or their ego has conditioned them to believe that they are above and beyond making mistakes. Talk to a lawyer, politician, or most any private boss and you will encounter every obstruction to the truth when they make a mistake. Listen to any politician, better still listen to Trump. It could very well be that those to whom politicians are speaking are at fault. The voter/believer/follower/fanatic does not know how to deal with someone less than perfect, someone like them. There seems to be a necessary perfection in a leader that will be defended by the follower. Say it ain’t so Joe.

        • Absolute power corrupts, absolutely.

          No one fails to listen to reason like a government bureaucrat. My favorite story is as follows:’

          http://www.coyoteblog.com/coyote_blog/2013/03/another-california-coastal-commission-horror-story.html

          I don’t know why you single out Trump as being unreasonable or failing to admit fault. You will recall Hillary Clinton’s hilarious “you mean, did I clean it with a cloth” obfuscation?

          Everyone needs to stop judging through political goggles. If something would be abhorrent if “their side” did it, then it would be abhorrent if “the other side did it”. This is so hard to achieve in politics, however.

          That is why I so enjoy Professor Turley’s political commentary. He skewers everyone equally and fairly, including Trump. Justice is blind, and she’s got a sword, too.

          • Clinton learned from the best, Sweet William. She is included in the ‘politicians’ I mentioned. If you don’t understand why I included-not singled out-Trump, then you simply have not been paying attention. No politician on record has lied more often, refused to admit the truth more often, than Trump. Clinton is a scumbag of the first order. Trump is an instructor. He’s in a class of his own. Clinton lies and squirms to defend herself. Trump has absolutely no idea of whether he is lying or defending himself, or just tweeting out of self gratification. Trump couldn’t tell the truth if he tried.

  3. Another proof that “Little Brother” can be much more dangerous than “Big Brother” (with apologies to George Orwell)

    • It cost them 2.5 hours of discomfort. Ask Conrad Black or Lewis Libby what having the U.S. Attorney pursuing trumped up charges cost them.

  4. What was a Missouri Highway Patrolman doing in Kansas? Or did the victims drive to MO to go to the garden store? And why did the MO Highwayman deal with Kansas cops?

  5. Another good reason to not live in Kansas. I wonder why the cops just didn’t arrest everyone at the hydroponics shop and shut it down? And Wingo didn’t (doesn’t) have anything better to do than sit around parking lots for hours? I wonder how many donuts he eats ……

    Sheeeshhhh So this is what passes for law enforcement in the US of A ?

  6. Takes a long of determination and money to appeal a case to the Circuit Court level.

    Most people just give up and accept the Injustice.

    And the cops keep on violating our rights.

    In what universe do cops think that this behavior is either legal or moral?

    • Steve, It’s called probable cause. The police are overwhelmed with today’s drug culture. Give them a break. We all make mistakes. “Cast the first stone”

      • Mistakes yes, investigative zeal coupled with willfull stupidity and a blatant disregard for the law, no.

        We give cops huge power and great leeway. That comes with great responsibility. These cops earned their troubles through their disregard for the rights of the people they supposedly served and protected.

  7. `If the couple had not the background and resources to take this all the way through appeal we might never have heard of this. Had they somehow made the officers “fear for their lives,” they might be dead.

    • enigma – this is search by intimidation. The problem is they have some astute tomato growers on their hands. And now they look like idiots again. The appeals court really ripped them, besides stripping the limited immunity, which is going to REALLY smart.

    • Lewis Libby had a 7-digit legal bill on a process crime concerning something that was not very important. Conrad Black had his businesses destroyed and went to prison. That, sir, is the prosecutocracy at work with the connivance of our vile federal judiciary. This incident is piddling.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s