By Darren Smith, Weekend Contributor

There are some cases where probable cause is questioned and there are a few others that leave me shaking my head in disbelief of how ridiculous some officers can be.

The Tenth Circuit Court of Appeals recently handed down a stinging rebuke of the Johnson County Sheriff’s Office and its deputies some of whom, Plaintiffs claim, lied about a field test of a suspected Marijuana product, finding evidence of marijuana grow derived from purchasing tools at a gardening retailer somehow established probable cause sufficient to send in a SWAT team to execute a search warrant and detain a couple for several hours.

The leafy green vegetable matter in question was not marijuana but tea leaves.

It is a classic example of department officials promising to make a publicity garnering drug sweep and when arrests are not made, someone must be sent to jail at all costs. And as can often be the case with such maligned efforts the end result was a civil rights lawsuit in federal court.

The Tenth Circuit minced no words when it began its published opinion with the following:

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.

On August 9, 2011, Robert Harte and his two children visited the Green Circle Garden Center, a garden store, where they purchased one small bag of supplies. Harte was a stay-at-home dad, attempting to grow tomatoes and other vegetables in his basement as an educational project with his 13-year-old son. Unbeknownst to Harte, Sergeant James Wingo of the Missouri State Highway Patrol was parked nearby in an unmarked car, watching the store as part of a ‘pet project.’ Wingo would often spend three or four hours per day surveilling the garden store, keeping meticulous notes on all of the customers: their sex, age, vehicle description, license plate number, and what they purchased. On this particular day, Wingo observed Harte’s visit and recorded the details in his spreadsheet.

More than five months later, Thomas Reddin, a sergeant in the Johnson County Sheriff’s Office (“JCSO”), emailed Wingo about the possibility of conducting a joint operation on April 20, 2012. The idea stemmed from a multi-agency raid on indoor marijuana growers that was conducted on the same date the previous year. That raid, known as “Operation Constant Gardener,” was spearheaded by Wingo on the basis of several hundred tips he had amassed from his garden store surveillance. Wingo chose April 20 because he understood that date to be “Christmas Day” for marijuana users. Approximately thirty law enforcement agencies participated in the 2011 operation, including the JCSO. Although the operation yielded some success, it also resulted in the search of at least one home containing nothing but tomato plants, which became a running joke amongst the agencies.

When asked by Reddin about a second Operation Constant Gardener in 2012, Wingo replied that he “[didn’t] really have enough new contacts to justify a full throttle 420 operation.” He offered to share the names he did have, although he was not planning to participate in any raid himself. On March 20, 2012, Wingo sent Reddin a list of names, including Harte’s, from the garden store surveillance. Thus, over seven months after Harte made his single, innocent trip to a garden store with his children, he became a criminal suspect in the JCSO’s marijuana grow investigation.

Undeterred by the limited pool of suspects provided by Wingo, Reddin was determined to “at least mak[e] a day of it,” even if the Missouri Highway Patrol was not going to conduct a “full blown” operation. 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. The pressure was on for JCSO officers to find probable cause by April 20.

Robert Harte was and is married to Adlynn Harte. Mrs. Harte did not accompany her husband on his visit to the garden store, and we are told nothing about why she was a suspect. 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. 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. If they had, the record tells us that they would have learned that Robert and Adlynn Harte were both former CIA employees with the highest level of security clearance; Mrs. Harte worked as an attorney at Waddell and Reed Financial and was a graduate of the Leawood Citizens Police Academy; her brother was also an attorney, formerly for the Navy JAG Corps, and an ex-New York City police officer trainee; the Hartes had a son in seventh grade and a daughter in kindergarten; and they had no criminal record other than the aforementioned undesignated traffic ticket.

Instead, the entirety of the JCSO’s investigation of the Hartes consisted of three “trash pulls.” On April 3, 2012, Deputies Mark Burns and Edward Blake found wet green vegetation mixed in with the Hartes’ kitchen trash. They determined it was not suspicious. Burns found the same wet green vegetation when he returned to the Hartes’ home with Deputy Nate Denton on April 10, 2012. This time, with only ten days before JCSO’s planned press conference on the success of its April 20 raid, the previously innocuous vegetation was considered to be wet marijuana plant material. Burns asserts that he field tested the plant material found on April 10 using a Lynn Peavey KN reagent test kit, and that it was positive for marijuana. However, there is no record of that test because, although Burns thought it good practice to photograph the results of field tests and had done so in other situations in the past, he did not take pictures of the plant material or the KN reagent test results. The deputies needed one more positive trash pull before they could seek a warrant. So, on April 17—with only three days before the preplanned raid—Burns and Blake conducted one final trash pull from which they found the same green vegetation. They claim that vegetation field tested positive for marijuana, but once again, the officers did not photograph this crucial evidence.

With nothing more than Harte’s one trip to the garden store over eight months earlier and two allegedly positive field tests, the JCSO went straight for a search warrant. The directions for use of the test clearly provide “that these tests are only presumptive in nature” and “will give you probable cause to take the sample in to a qualified crime laboratory for definitive analysis.” Officers opted against sending the vegetation to a lab for confirmation, despite having the ability to do so. Had the officers taken that extra step, they would have saved the Hartes a traumatic and invasive experience and themselves the embarrassment of a botched investigation. The “marijuana,” officers would soon learn, was nothing more than loose-leaf Teavana tea.

As if the botched investigation were not enough, the JCSO subsequently executed an excessive, SWAT-style raid. The officers did not consider it a high-risk entry, yet Lieutenant Mike Pfannenstiel dispatched a team of seven officers to the Hartes’ home on the morning of April 20. Even more concerning, the officers timed the raid for when the Hartes’ children would be home but failed to create any safety plan in anticipation of risks to the children.

At approximately 7:30 a.m., the seven JCSO officers, clad in “black swat-type uniforms” and brandishing 9 millimeter Glocks, an AR-15 assault rifle, and a battering ram, approached the Hartes’ house. Harte heard pounding on the door and opened it to find an apparent tactical team ready to storm the house. Mrs. Harte recalled hearing “screaming and loud banging, so hard that the walls were rattling and it sounded as though our front door was coming off the hinges.” She ran down the stairs to find a team of officers flooding the foyer, shouting at her to put her hands behind her head, and Harte lying face-down and shirtless, an officer holding an assault rifle over him.

The Hartes were kept under armed guard on the family’s couch as the officers carried out a search of the home. In the first 15 to 20 minutes of their search, they discovered nothing more than what had been in plain view all along: a tomato garden. Yet, despite this strong evidence that the Hartes were not concealing a marijuana grow in their home, the officers continued their search for two and a half hours, even bringing in a drug-sniffing dog after over an hour of searching proved fruitless. Throughout this entire period, the Hartes were not permitted to leave, even though there were no charges against them. The officers went so far as to refuse a concerned neighbor’s request to remove the children from the home during the search.

When Reddin was informed that the two-and-a-half-hour, seven-man raid yielded nothing but tomato plants, he was furious. “You’re lying to me,” he said to Deputy Larry Shoop when Shoop reported the news, later writing “SON-OF-A-BITCH!!!” in an email to Lieutenant Pfannenstiel, who responded, “Nothing?????????????????????????” After learning that the drug raids were not going well, Sheriff Frank Denning attempted to cancel the pre-planned press conference. But notice of the conference had already been sent, so Denning reluctantly proceeded. The subsequent news coverage, which featured pre-recorded video footage of Denning and marijuana plants purportedly confiscated

during the raids, suggested a successful operation across Johnson County, even though no live plants had been seized that day. Notably absent from the news reports was any mention of the law-abiding family wrongfully targeted for their indoor tomato garden.

Plaintiffs argue three violations of their Fourth Amendment rights:

Unlawful search, conducted pursuant to a false and misleading search-warrant affidavit Unlawful seizure The use of excessive force in carrying out the search.

The U.S. District Court granted summary judgment in favor of the government and its agents, granting qualified immunity. However, as any reputable tasseomancer will attest: what the District Court giveth, the Appeals Courts taketh away.

Harte, et al v. Board Comm’rs Cnty of Johnson, et al

By Darren Smith

Photo Credit: Wikimol

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