When Bob Harte took his two young kids shopping with him at an organic gardening store in Kansas City, Missouri, he had no idea that he had inadvertently set in motion a series of events that would — eight months later — lead to the Harte family watching helplessly as armed sheriff’s deputies searched every corner of their house for nonexistent evidence of a marijuana grow operation.
Let’s go back to August 2011. Bob, a former CIA officer who had moved from D.C. to the Kansas City suburbs in 1999, was working on a hydroponic vegetable garden in his basement. One day, he packed his son and daughter into the car and drove across the river to shop at a Missouri store that sells hydroponic gardening supplies.
As he left the store, he was unaware that a Missouri Highway Patrol sergeant was staking out this store under the presumption that hydroponic farmers are likely to be cultivating illegal marijuana.
At home, Bob’s wife Adlynn — also a former CIA officer and now an attorney — was indulging her tea habit, brewing tea the way that many tea fanatics do: with loose tea leaves.
The sergeant who’d added Bob to his list of potential reefer kingpins did nothing with this information for several months. Like others, he was hoping to launch a high-profile operation that would take down multiple marijuana growers on April 20 (because heaven forbid anyone do something pot-related not on this day), but when he realized he didn’t have enough possible targets, he shared his intel, including Harte’s info, with the Johnson County (Kansas) Sheriff’s Department, which was ramping up for its “Operation Constant Gardener” on that same date.
(Side note: Presumably the “Operation Constant Gardener” title is a reference to the John LeCarré novel/film, even though that story is about corruption in the legal prescription drug industry.)
Misreading The Tea Leaves
In the weeks leading up to the raids, sheriff’s deputies collected three separate trash samples from the Hartes’ curb. They determined that the wet tea leaves found in the garbage were actually “saturated plant material” meaning it was marijuana that had been processed to extract THC, the plant’s active ingredient.
Even though tea leaves looked nothing like pot, police performed field tests on these samples that they claim turned up positive for THC. However, the test they used can not conclusively determine if a substance is marijuana; it can only provide a “presumptive” positive for THC. The Hartes’ attorney notes that this test also has a 70% false positive rate, particularly with food items like peppermint, vanilla, cinnamon, basil, ginger, oregano, lavender, and tea.
“What deputies did not do was conduct any type of drug investigation — no surveillance, no interviews with neighbors, no searching their files for any tips, no thermal imaging, and no checking of electrical records or anything else that might suggest an indoor grow operation,” noted their lawyer.
With only a shopping trip to a completely legal gardening store, and some wet tea leaves, the sheriff still managed to obtain a warrant, though the affidavit given in support of that warrant made no mention of the field test’s high false positive rate, the fact that the “plant material” did not in any way resemble marijuana, or that it was found in the kitchen trash.
On the morning of April 20, 2012, the sheriff’s office carried out “Operation Constant Gardener,” which included a 7:30 a.m. raid on the Harte home by deputies “garbed in raid gear and armed with assault rifles.”
Adlynn says she came downstairs to find Bob on the floor surrounded by officers. Their son, 13, came out of his room with his hands up, while their 7-year-old daughter had no idea what was going on.
The family was forced to sit on the couch — in full view of passersby — while police searched the hydroponic garden in the basement, finding only a half-dozen tomato, squash, and melon plants. Tests of the plant material in the garden came up negative for evidence of marijuana, which the Hartes contend should have been enough to satisfy deputies given that their entire warrant had been based on Bob’s shopping trip and Adlynn’s tea leaves. But the search continued for hours.
“The deputies searched every room of the Hartes’ residence, going through closets and dresser drawers, containers, and even Mr. Harte’s toilet kit bag,” says the family’s attorney. “After 2.5 hours, they found absolutely nothing — no drugs, no drug paraphernalia, no evidence of any illegal activity. It was obvious after the discovery of the vegetable plants that the prolonged and illegal search was aimed simply at uncovering something that would get the deputies off the hook for their improper actions. But the Hartes had never used any type of drugs, and there was nothing to find.”
The family says that while the fruitless search — which included bringing in a drug-sniffing dog conscripted from the Overland Park, KS, police — continued, officers initially refused to show the search warrant to the Hartes or describe its contents. The family also claims that one deputy told them that police “knew” there were “narcotics” in the house.
Officers later suggested that the Hartes’ teen son was responsible for the marijuana they didn’t find, then recommended taking the young man to a doctor for drug testing and that the Hartes have a “family meeting.”
When the Hartes finally did see the search warrant, it mentioned that the search was looking for evidence of a “major grow operation,” and not for evidence of pot production for personal use.
It wasn’t until nearly a year later, and after the sheriff had rejected multiple requests, that the Hartes were finally able to get the full picture of the half-baked investigation that led to the search warrant.
Then in March 2013, they were finally able to see the whole story: Bob daring to shop at a hydroponics store; the multiple searches of the Harte family garbage; the fact that police had actually discarded the first supposed marijuana sample taken from the garbage after determining it was “misidentified”; the revelation that the Sheriff’s Department did not use its crime lab to do a conclusive tests on these samples until after the raid; or that those tests identified “no controlled substances.”
The Legal Battle Begins
In 2013, Hartes sued the Johnson County Sheriff’s Department, sheriff and more than 10 deputies and other officers. They also sued the Missouri Highway Patrol sergeant who not only provided the tip to the sheriff, but who also trained many of the Johnson County deputies on drug-related matters. The county’s Board of Commissioners was also named in the complaint [PDF].
The lawsuit alleges that the law enforcement officers violated the Hartes’ Fourth and Fourteenth Amendment protections by conducting a search without sufficient probable cause, relying on a warrant based on materially false or misleading statements, detaining the family after it was clear that there was no probable cause for the search, and excessive use of force, among other claims.
But their case appeared to hit a dead end in 2015, when a federal court judge in Kansas granted summary judgment [PDF] in favor of all of the defendants, finding that the officers and the board members had each made valid “qualified immunity” claims. Qualified immunity protects law enforcement officers and other public officials from being held liable for reasonable errors made in the commission of their duties.
“Tea Drinkers & Gardeners Beware!”
Many of those claims of qualified immunity went out the window this week, when a three-judge panel at the 10th Circuit Court of Appeals reversed most of the lower court’s grant of summary judgment.
“Law-abiding tea drinkers and gardeners beware,” writes Judge Carlos Lucero in his opinion [PDF]. “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.”
In their appeal, the Hartes argued that the search warrant was invalid because the officers who obtained it failed to take photographic evidence of the supposed pot samples collected from the trash, didn’t use a drug-sniffing dog at their disposal, didn’t immediately turn the samples over to the lab for confirmation of the positive field tests, and did no further investigation into the Hartes.
The judges didn’t all agree on the validity of the search warrant. Lucero joined Judge Nancy Moritz in finding that the Hartes should be allowed to make the case that officers provided false or misleading information to the judge who signed the warrant. Judge Gregory Phillips, dissenting, countered that while the evidence provided by the Hartes points to lazy police work, it doesn’t appear to rise to the level of taking away the officers’ qualified immunity.
Thus, the appeals court majority reversed this aspect of the lower court decision, ruling that the Hartes can move forward with their claim of unlawful search and seizure against the sheriff’s deputies, but they are limited to arguing that officers lied about the results of the field tests in order to obtain the warrant.
The panel also reversed the District Court’s dismissal of state-law claims alleged by the Hartes, including Trespass, Assault, and False Arrest.
The appeals court affirmed the lower court’s summary judgment in favor of the county Board, the sheriff, and the Missouri Highway Patrol sergeant. The allegations of excessive force are also off the table.
Unless either side appeals this matter to the Supreme Court, this case now goes back to the District Court.