Today a federal appeals court revived a lawsuit filed by Robert and Adlynn Harte, the Kansas couple whose Leawood home was raided in 2012 based on a visit to a garden store and discarded tea leaves that police claimed tested positive for marijuana. While all three members of the 10th Circuit panel agreed that a federal judge erred when he dismissed the Hartes' lawsuit in 2015, each wrote separately. Judge Carlos Lucero best sums up the fiasco that led to the lawsuit in a blistering rebuke of reckless police practices:
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.
As Lucero explains, the case began with Sgt. James Wingo of the Missouri State Highway Patrol, whose "pet project" involved staking out the Green Circle Garden Store in Kansas City, "keeping meticulous notes on all of the customers," often for "three or four hours a day." Robert Harte ended up on Wingo's list because he visited the store on August 9, 2011, with his two children. Harte was buying supplies to grow tomatoes and other vegetables in the basement as an educational project for his 13-year-old son.
More than seven months later, on March 20, 2012, Wingo shared Harte's name and information with Sgt. Thomas Reddin of the Johnson County Sheriff's Office (JCSO) in neighboring Kansas. Reddin was planning to raid local marijuana growers on April 20, the unofficial stoner's holiday, as part of a publicity stunt. "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," Lucero notes. "The pressure was on for JCSO officers to find probable cause by April 20."
They tried to do that by rooting through the Hartes' garbage on three separate occasions from April 3 to April 17. During the first "trash pull," Deputies Edward Blake and Mark Burns found wet green vegetable matter that they deemed of no interest. Burns found the same stuff when he returned to the Hartes' house a week later with Deputy Nate Denton, and suddenly it seemed suspicious. Burns, who testified that he had never seen loose tea before, said it looked like marijuana that had been soaked to extract THC. (A lab technician consulted months later disagreed, saying the leaves didn't "appear to be marijuana" to the unaided eye and didn't "look anything like marijuana leaves or stems" under a microscope.) Trusting his instincts, Burns decided to perform a field drug test, which indicated the presence of THC, marijuana's main psychoactive ingredient. Burns and Blake came back one more time a week later, just three days before a raid that had already been scheduled, and examined more of the wet leaves, which again tested positive for marijuana.
Or so Burns and Blake said. Whether they actually performed the field tests, which they neglected to photograph or otherwise document, is a matter of dispute. As Lucero points out, the circumstances gave them a strong motive to lie, since they were tasked with justifying an increasingly imminent search that for publicity reasons had to happen on April 20. But even if they did perform the tests and correctly interpreted the results, it would be weak evidence at best that the Hartes were growing marijuana in their home. The Lynn Peavey KN reagent test they supposedly used is notoriously unreliable. "One study," Lucero notes, "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 warns that its results "are only presumptive in nature" and should be confirmed by laboratory analysis.
The deputies ignored that recommendation. "Had the officers taken that extra step," Lucero observes, "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."
The police also failed to take several other elementary steps that would have cast doubt on their belief that the Hartes were cannabis kingpins. "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," Lucero writes. Nor did the cops bother to conduct a background check, which would have revealed that the Hartes had no criminal records and "were both former CIA employees with the highest level of security clearance." Instead the deputies obtained a search warrant based on nothing more than gardening supplies in a bag and wet tea leaves in the garbage.
In addition to criticizing the cops for their comically inadequate investigation, Lucero faults them for conducting "an excessive, SWAT-style raid" that gratuitously exposed the Hartes and their two young children to the trauma and risk of having seven armed men storm into their home early in the morning and forcibly confine them to their living room for two and a half hours while conducting an increasingly desperate search for nonexistent evidence of a marijuana grow. The officers took this aggressive approach even though there was no reason to think the Hartes posed a threat to them. "Even more concerning," Lucero says, "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." They even rebuffed a neighbor's offer to look after the children during the search.
"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," Lucero writes. "The Fourth Amendment does not condone this conduct, and neither can I."
Lucero got enough agreement from his colleagues to reinstate several claims that were dismissed in 2015, including unlawful search-and-seizure claims against Reddin, Burns, Blake, seven other deputies, Sheriff Frank Denning, and the Johnson County Board of Commissioners. "There was no probable cause at any step of the investigation," Lucero writes. "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." The 10th Circuit also is letting the Hartes try to prove their allegation that Burns, Blake, or both lied about the field tests, which would invalidate the warrant used to search the house, and several claims under state law, including trespass, assault, and false imprisonment.
Lucero cites two policy decisions that arguably make Denning and the county commissioners legally responsible for this debacle. One is "Sheriff Denning's decision to authorize the use of inconclusive field tests with a high false positive rate, and without the laboratory confirmation expressly required by the manufacturer's label, as the sole basis for probable cause." As I noted in a 2016 piece about faulty field tests, Denning is remarkably ignorant about that issue, or at least pretends to be. After four decades in law enforcement, he claimed the Harte case was the only time he had heard that false-positive results were possible.
Lucero also faults "the JCSO's investigatory policy under which the targets, deadline, and even success of the April 20 drug raid were pre-determined," which "placed enormous pressure on the deputies to find probable cause in time to make the raid publicity-worthy, thereby creating incentives for the deputies to cut corners and fabricate probable cause." The upshot, he says, was that "the Hartes' home was subject to an invasive search as a direct result of a JCSO publicity stunt that lacked any legitimate law enforcement rationale."