Drug War

Federal Appeals Court Castigates Kansas Cops for Pot Raid Triggered by Tea

One judge notes that police raided a family's home "based on nothing more than junk science, an incompetent investigation, and a publicity stunt."

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Teavana

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."

NEXT: There's no First Amendment right to engage in anti-Israel boycotts -- but there is a right to call for such boycotts [NOTE UPDATE]

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  1. Any idea who, if anyone, could suffer any penalties from this screw-up?

    1. No one will. This is how they do shit in Kansas.

    2. The union won’t allow that.

    3. Any idea who, if anyone, could suffer any penalties from this screw-up?

      The local taxpayers, who will be on the hook for whatever settlement eventually gets negotiated. Even if by some fantastic chance the defendants are judged to be personally liable, I’m guessing they’ll try to get the county/city/cop union insurance policy to cover it.

      I’m stupid enough to live in Cook County, but not retarded enough to live in the city of Chicago. I forget the exact number, but the city routinely spends tens of millions a year just on bad-cop settlement payments. That’s not even counting all the other non-cop-related lawsuits. You’d think it would be a clear signal to someone that if you keep getting sued and losing, maybe you need to change what you’re doing in the first place.

      1. And apologies to Fist, who said the same thing before I did, but what am I supposed to do, read all the comments before I shoot my mouth off?

  2. All that bullshit over nothing. Yet if I were a resident of their jurisdiction I’ll bet those same cops would be too fucking lazy to find the perp and get my shit back if I reported a robbery.

    1. Yeah, but that shit’s hard. Might even have to do some actual work.

      1. A friend of mine got robbed some years ago in the county where I live. As one of the perps nicked an artery in the process of gaining entry to the house, he ended up spraying blood everywhere. So of course nearly 20 cops showed up to check it out. When it was later assigned to a detective, nothing happened. My friend did some investigating on his own and pretty much figured out who did it. When he relayed that info to the detective (after waiting two weeks forth guy to come back from vacation, as it was elk season), he was told they were aware of the suspects in question , but didn’t;t want to do anything about them at the moment due to some bullshit regarding a bigger investigation.

        Nothing ever came of any of it. This is largely what I need cops for, and they are worthless.

  3. even chearing this courts decision on, as a general layperson, what is the point in the face of qualified immunity? Even burning the face off a toddler only cost some jobs, no punishment. And how can the Hartes prove they lied about the drug tests? which would be absolutely necessary in supporting the trespass, assault, and false imprisonment claims, and blocking the immunity defense.

    1. The reason POWs escaped in World War II wasn’t because of the slim hope they had of getting back to Allied territory, it was to harass the Germans, make them expend manpower hunting for these POWs instead of shooting at their fellow soldiers.

      I’m thinking the longer these assholes spend testifying in court, the less time they have to reconnoiter the local Home Depot for buyers of compost.

    2. I will guess that the Hartes may not need to prove the cops lied about the drug tests,that all they need do is raise so much doubt that the shoe is on the cops’ feet, that if the cops can’t bring any proof to the table other than cops saying so, when those same cops have been shown by all the other evidence to be sloppy, lazy, abusive, and generally incompetent; then I think, the Hartes will have proven their point.

      Remember, criminal prosecution requires proof beyond a reasonable doubt, but this will be a civil suit, requiring only a preponderance of the evidence, ie 51% likely.

      The cops deserve to be charged criminally and fired, but that will never happen. This civil suit is going to cost the city a lot.

      1. Scarecrow: “Remember, criminal prosecution requires proof beyond a reasonable doubt, but this will be a civil suit, requiring only a preponderance of the evidence, ie 51% likely.”

        I doubt you’ll see this, but to my understanding, that does not apply to qualified immunity cases. To beat immunity, the Hartes will have to prove that the cops, assaulted, searched, and detained, while knowing they were doing it on falsified probable cause, which again, means they have to prove a cop lied about a test that there is no evidence ever took place, and the cop as the only witness.

  4. “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”

    No science, junk or otherwise, no investigation, pure publicity stunt by a bunch of thugs. And they’re going to skate on any criminal charges because FYTW, they’ve got absolute immunity and that’s exactly what the publicity was for. If we don’t like you, we’re gonna fuck you up and there’s nothing you can do about it. So grovel in the presence of your lord and masters, peasants. We’ll kill you, we’ll kill your kids, we’ll rape your dog and burn your house to the ground if you don’t respect our authoritah.

    1. And this was to former members of the CIA, which is probably why it is still in the news. If it were to happen to anybody else, they would have caved to threats and pressure to just take a bribe and shut up.

      1. They should just wait until thinks die down and then call in some old pals who do wetworks to deal with those cops.

  5. One visit to a [store and some garbage] 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.

    Nice.

  6. 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.”

    It’s kind of like those reality shows that invent false deadlines to ramp up the drama. While I doubt anything but a perfunctory settlement paid for by taxpayers will result from the lawsuit, it’s nice the drama is being extended a little longer.

  7. 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.”

    WTF? I trust he did this on his *own* tiHAHAHAHAHAAA!! Damn, couldn’t quite get it out!

  8. Burns, who testified that he had never seen loose tea before

    “I’m just a poor boy, from a poor family.”

    1. Only rich families can afford tea!

    2. Three months of mandatory training with local garbage collectors.

  9. The problem isn’t that all cops are psychopathic assholes, it’s that so many of them are and they wield a lot of poorly checked power.

    1. Dawn breaks in a land that has been shrouded for years in darkness.

    2. Yep, poorly checked power. That’s what you get when you expand the authority of the state. Something socialist and those calling for more government never seem to understand.

  10. But which is worse:

    A. a series of mistakes including bad science and showboating politicians leading to a military attack on a family home to enforce trivial and unethical prohibition rules.

    B. totally legal, by-the-books, rock-solid-evidence-based military attacks on family homes to enforce trivial and unethical prohibition rules.

    By the way, however…

    “Harte was buying supplies to grow tomatoes and other vegetables in the basement as an educational project for his 13-year-old son.”

    yeah right.

    1. Was there a point you wanted to make?
      You could try in English.

      1. Well let’s see if I can dumb it down enough for you:

        Govt working together to systemically take away rights and freedoms by creating victimless crimes, via life-threatening guerrilla warfare tactics for that matter, may actually be worse than individual govt agents being stupid and misapplying rules to people who otherwise wouldn’t have fallen under the targeted category.

        And if you still didn’t follow, here’s as dumb as I can make it: drug war bad.

        Also the guy was obviously planning to grow weed.

        1. > Also the guy was obviously planning to grow weed.

          You can’t be this dumb. They literally found a tomato garden in the basement.

  11. It could have been worse. The Hartes could have owned one or more dogs.

  12. You can be sure that these cops had an eye for seizing the house and vehicles, too.

    1. And selling the kids to a slaver.

  13. None of the stories mention that the Hartes had to sue the Police to get any records about the Raid.
    The Police argued that they should not have to turn over records to anyone who would use them to sue.

  14. 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.”

    Does this guy have anything better to do with his time? Who ordered this stakeout of the garden center? I bet this same state police officer would also stakeout the local Catholic parish to see who all drank from the chalice in order to breath test everyone in the parking lot and hand out tickets for Minor Consuming and Contributing to the Delinquency of a Minor charges.

  15. “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.

    What do these things have in common with Cannabis? Terpenes. I’d say the cops need a more specific test.

    1. Maybe the test development company was buying substandard weed from dealers who were “cutting” the product with other organic material. Maybe they were mixing in some TyPhoo to stretch out their supply, thereby making TEA test as THC.

  16. Flipping a coin to determine guilt is not allowed by the courts. But it gives a 50% chance of being right. So how is it that a test with a 70% chance of being wrong is sufficient to get judges to sign warrants?

    1. Drug Dogs have 50% accuracy rate and the courts allow them.

  17. Keystone kops

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