Drug War

Victims of Marijuana Raid Based on Tea in Their Trash Get Another Chance to Hold Cops Responsible

The 10th Circuit says Adlynn and Robert Harte should be allowed to pursue three federal claims against comically inept Kansas sheriff's deputies.

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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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  1. Drug Warriors got warrior!

    1. If only this drug-busting operation had been blessed by Our Dear Leader-POTUS, THE Pussy-Grabber in Chief, it would ALL be OK!!!

      “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.”

      BAD doggy!!! To improve the cost-effectiveness of the Performance of Our Brave Heroes, I hereby offer the following suggestion:

      Departments of Our Heroic Protectors in Government Almighty all across the land, and I just don’t know WHERE to submit my brilliant money-saving idea; PLEASE help. Idea summary: REAL drug-sniffing dogs are expensive to train, feed, house, and transport. EFFIGY dogs (think sock-puppet-doggie on officer’s hand) would be FAR less expensive! Officer waves sock-puppet-effigy-dog slowly over car, says wuff-wuff-wuff quietly and softly, then reaches trunk of car, goes WOOF-WOOF-WOOF loudly and urgently, now the car can be searched! Problem solved, cost-effectively! Woo-Hoo!!! … Now… HOW do we spread this most excellent idea? Please advise… This excellent idea brought to you by the Church of Scienfoology, see http://www.churchofsqrls.com/

      1. My research has determined that there is no clearly established law prohibiting the use of sock puppets.
        I’m going to run your suggestion by the city council

  2. “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.”

    The dog was later sent to the county shelter, and the handler was re-assigned to parking patrols, only in rainy weather.

    1. The dog was sent to a farm upstate.

  3. Burns confessed that he had never seen loose tea before but thought, based on his training and experience, that it looked like marijuana leaves.

    “Actually, based on my training and experience, *everything* looks like marijuana leaves.”

    1. His experience includes seeing wet marijuana leaves thrown out as garbage?

      1. No, that’s part of his training.

  4. I like how lack of competence is now the excuse. More training needed!

    1. More *money* needed.

    2. Yep. The laws are such that an officer who thinks they are don’t their job, no matter how ridiculously wrong they are, is immune to the law and liability. So incompetence is a prefect defense that will only result in them getting a token amount of training… The police chiefs won’t fire them cuz they know what’s up anyways.

  5. How little crime has to occur in a town before cops stoop to searching trash cans for weed remnants? Seems like this department just made the case for downsizing, they clearly have too much free time on their hands.

    1. Sgt. James Wingo of the Missouri State Highway Patrol … staked out the Green Circle Garden Center in the hope of identifying hydroponic pot growers,

      Seems like the MSHP also has too much time — but it probably overtime, not free.

  6. What do you expect in a county named for a penis?

  7. I can understand the confusion; ‘tea’ is an old euphemism for the devil weed marijuana. It is well know by that notorious drug song “Tea for Two”.

    1. Its particular common the UK, where 4:20 is referred to as “Tea Time”

  8. Holding cops responsible for their activities?
    Beria and Himmler would never approve such an insane idea.

  9. >>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

    never drive the highways of Missouri. ever.

    1. It’s gotten pretty bad in Nebraska and Iowa as well, thanks to Colorado’s legalization. God help you if you drive that stretch of I80 past Grand Island with Colorado plates.

      1. Ya no kidding. All those small town cops are super eager to make their careers on a major drug bust. They’ll happily conduct 1000 illegal searches if it means they find the one guy with more than a personal use amount. After all, they won’t be punished for illegal searches anyways.

        If you’re from Colorado driving east, invest in a dash cam that records the cabin as well.

  10. That’s what they get for using loose tea like some furriner. This is America! We use bags for our tea!

    1. Real Americans insist on getting teabagged.

  11. I’ve heard of a few uses for marijuana plant material but getting it wet and throwing it in the trash isn’t one of them.

    None of this passes the smell test.

    And hey the victims’ve only been pursuing the case against Sergeant Stadanko going on eight years. No biggie.

    1. Smell test indeed. The idiots dont know what pot vs tea smells like? You don’t need a dog for that.

  12. I’m going to stop cooking with parsley too.

  13. My research has determined that there is no clearly established law prohibiting the use of sock puppets.
    I’m going to run your suggestion by the city council

  14. Cops are stupid and until the good ones start to get rid of the bad ones they are all complicit

  15. It’s good there’s another chance at this. I’m a tea-head who brews exclusively from single-estate sources of whole leaf tea, usually Chinese or Taiwanese oolongs, who has never even tried marijuana. It’s depressing it takes so many years to get the barest semblance of justice.

  16. People should be very aware of the high false positive rate in drug tests and not just the initial screening tests. Lots of things including OTC cold medicines, prescription drugs, poppy seeds and other substances can cause false positive results. This is also true of tox screens performed in hospitals. They are not confirmatory.

    If unfairly accused demand retesting preferably GC-MS and all information about the lab, chain of custody and supervision should be available to the defense.

  17. I wonder if the dirty Kansas Koppers had search warrants for rummaging through these folks’ dustbins……. that is still their private property until the dustmen come round and take it up. That right there could be an illegal search/seizure.

    Further, did the koppers rin the field test then dump the untested part of the tea, or did they keep the stuff as evidence properly marked and stored?

    Funny how maryhootchie used to grow wild all over Kansas…. they called it ditchweed. No one cared until duPont CHemical cmpany moved to make hemp cultivatioin illegal.

    This sort of case is solid evidence in favour of ending the war on some drugs. Marijuana has yet to kill anyone, it is NOT habit forming, and nowhere near as dangerous as alcohol when it comes to impairing one’s normal functional ability. WHY is it still Schedule One?

    The Sheriff of that county needs to take a hard look at the conduct of these critters in government issued costumes. It would not take much to hire someone better than the lot of them, all by himself.

  18. The cops were mad because they couldn’t find a family dog to shoot in front of the kids.

  19. It’s good there’s another chance at this. I’m a tea-head who brews exclusively from single-estate sources of whole leaf tea, usually Chinese or Taiwanese oolongs, who has never even tried marijuana. It’s depressing it takes so many years to get the barest semblance of justice. Thats ok but if you want to laughter other than that please visit for your fresh mood with a cup of tea.
    https://www.funnyjokeshome.com/marriage-jokes.html

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