Tea Leaves & a Tomato Garden: 10th Circuit Blasts Kansas ‘Drug Bust’

(CN) – A 10th Circuit panel had harsh words for officers that botched a drug raid on an innocent Kansas family that netted tea leaves and the family’s tomato garden instead of marijuana.

On April 20, 2012, seven heavily armed Johnson County sheriff’s officers conducted an early morning raid on the house of Adlynn and Robert Harte based on vegetative samples found in the couple’s trash. It turns out those samples were tea leaves, and officers found a hydroponic tomato garden instead of marijuana.

The Hartes sued the county for $7 million on unlawful search-and-seizure claims, which a federal judge tossed after finding the officers were entitled to qualified immunity.

On Tuesday, however, a three-judge 10th Circuit panel disagreed – and Circuit Judge Carlos Lucero offered a sarcastic summary in the ruling of the mistakes made by the officers.

“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,” Lucero wrote. “Perhaps the officers will intentionally conduct the terrifying raid while your children are home, and keep the entire family under armed guard for 2 ½ 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.”

Prior to the raid, officers staked out a hydroponic store looking for possible suspects in an operation that would bust weed growers on April 20, 2012 – the annual “holiday” for marijuana aficionados. They spotted Robert Harte leaving the store, where he’d bought a small bag of fertilizer for the family’s tomato garden.

The Hartes don’t fit the profile of typical neighborhood weed dealers. In fact, both were former CIA employees with high-level security clearance. Robert took on the role of a stay-at-home dad while Adlynn worked as an attorney. Lucero made note of the officers’ lack of investigation into the couple before the raid.

“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,” Lucero wrote. “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.”

Officers searched the home for 2 ½ hours, holding the couple and their two children against their will. When they couldn’t find any drugs or paraphernalia, the officers suggested that the couple’s teenaged son may have a drug problem. And the field test used on the tea leaves turned out to have a 70 percent false positive rate.

In a case of piling on, Circuit Judges Gregory Phillips and Nancy Moritz filed concurring opinions. Phillips said the officers prolonged the search beyond a reasonable time.

“Thus, a search – even under a valid warrant – becomes unreasonable when it’s no longer supported by probable cause,” Phillips wrote. “That is the case here. The deputies searched thoroughly under the search warrant for any sign or remnant of a grow operation and found nothing. And nothing the deputies saw while securing the house gave them probable cause (or even reasonable suspicion) to believe that the Hartes even casually used marijuana.”

The Hartes claim that officers lied about the field test results showing the tea leaves tested positive for THC, the principal ingredient in marijuana. Police failed to photograph the results and did not send the samples to a lab for confirmation, given the pressure to obtain warrants for the April 20 crackdown – facts not lost on Moritz.

“I would find that the Hartes have made the required showing here and that the deputies, in turn, have failed to dispel the existence of a genuine factual dispute,” she wrote. “I would further find that the Hartes’ allegations of lying are sufficiently grounded in record evidence, and that same evidence creates a triable issue of fact as to whether the deputies lied about the field-test results.”

Lucero harshly criticized the sheriff’s office for the entire operation, questioning their argument of probable cause.

“There was no probable cause at any step of the investigation,” Lucero wrote in the opinion that, with concurrences, spanned 100 pages. “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.”

Lucero added that the police operation was ill-conceived.

“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. “The Fourth Amendment does not condone this conduct, and neither can I.”

The Hartes’ attorney Cheryl Pilate said the decision was a huge victory.

“The Hartes are elated with the outcome of their appeal and delighted that this long-awaited day has arrived,” Pilate said in a statement. “The appeals court obviously carefully scrutinized the large factual record.”

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