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:Today a federal appeals court
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.MORE »