This story was updated at 2:45 p.m. to include the comments of the plaintiffs' attorney.
A Leawood, Kansas, couple whose home was raided by a police tactical team in a bungled SWAT-like search for marijuana will get their day in court after all.
The couple, both retired CIA agents, sued the Johnson County Board of Commissioners, Johnson County Sheriff Frank Denning and seven sheriff’s deputies over the botched 2012 raid, but a federal judge threw out the case in December 2015.
On Tuesday, the 10th Circuit Court of Appeals in Denver reversed the judge and reinstated the couple’s claims that sheriff’s deputies had violated their Fourth Amendment rights.
Each member of the 10th Circuit’s three-judge panel wrote his or her own separate opinion, amounting to 100 pages in all. In a withering critique of the conduct of the Johnson County deputies, Judge Carlos F. Lucero began his opinion this way:
“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 on appeal.”
In a statement, the plaintiffs ' attorney, Cheryl Pilate,called the decision "a huge and significant" decision for her clients, Robert and Adlynn Harte, and the Fourth Amendment.
"The appeals court obviously carefully scrutinized the large factual record," Pilate said. "The court's opinions recount the details leading up to and surrounding the frightening raid on the home of a wholly innocent family that had done nothing more than shop at a garden store and discard loose tea leaves in the trash.
"One of the judges indeed noted that the facts surrounding Operation Constant Gardener and the raid on the Hartes’ home were 'too rich for fiction.' The Hartes now look forward to presenting those facts to a jury. "
An attorney for the defendants, Lawrence Ferree III, declined to comment.
The case drew national attention. The raid occurred nearly eight months after Robert Harte and his children visited a hydroponic-gardening store and bought a small bag of supplies as part of a tomato-growing project in their basement. A Missouri State Highway Patrol officer, James Wingo, was parked nearby in an unmarked car, surveilling the store for possible evidence of people purchasing supplies for indoor marijuana grow operations.
The Johnson County Sheriff’s Office, which had earlier conducted a big multi-agency raid on indoor marijuana growers based on tips from Wingo, was eager to conduct another one on April 20, 2012, a day celebrated by marijuana activists. Wingo sent the sheriff’s office a list of names, including those of the Hartes, based on the single instance he observed of Robert Harte and his children patronizing the garden store.
Sheriff’s deputies did three “trash pulls” at the Hartes’ Leawood home, finding wet green vegetation mixed in with the Hartes’ kitchen trash. After deputies determined the vegetation field-tested positive for marijuana, seven officers clad in black SWAT uniforms and brandishing 9 mm Glocks, an AR-15 assault rifle and a battering ram pounded on the Hartes’ door and burst in, guns drawn, at around 7:30 a.m. on April 20, 2012.
Robert Harte was forced to the floor, face-down and shirtless, as officers searched the house for two and a half hours during which all four family members, including the Harte children, were detained in the living room under armed guard. After searching for traces of marijuana and even calling in a drug dog, all that the deputies found was a hydroponic tomato-growing operation. The wet plant material uncovered in the trash pulls turned out to be loose-leaf tea.
Denning, who has since retired, held a preplanned news conference later that day, and subsequent TV news coverage included pre-recorded footage of Denning and marijuana plants that deputies had supposedly confiscated – although none, in fact, had been seized.
In reinstating the Hartes’ Fourth Amendment claims, Lucero found that the Hartes had cast sufficient doubt on the truthfulness of the deputies claims that their field tests of the Hartes’ trash had tested positive for marijuana. That – coupled with evidence that the sheriff’s office had planned its news conference touting its success before probable cause to conduct the raids had even been established – is "sufficient to permit a conclusion that the officers fabricated the ‘positive’ field tests,” Lucero wrote in his opinion.
“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,” Lucero stated.
Judge Gregory Phillips, while disagreeing that the field tests did not give the deputies probable cause to search the Hartes’ home, found that the deputies ran afoul of the Fourth Amendment by unreasonably continuing their search after they found no evidence of marijuana in the house.
The 10th Circuit’s decision overturns U.S. District Judge John Lungstrum’s dismissal of the case. Lungstrum had ruled that the deputies were protected by qualified immunity and, in any case, could not have known that the field tests they used had produced false positives.
Dan Margolies is KCUR’s health editor. You can reach him on Twitter @DanMargolies.