864 F.3d 1154 (10th Cir. 2017), 16-3014, Harte v. Board of Commissioners of County of Johnson

Docket Nº:16-3014
Citation:864 F.3d 1154
Opinion Judge:PER CURIAM
Party Name:ADLYNN K. HARTE; ROBERT W. HARTE; J.H., a minor, by and through his parents and next friends, Adlynn K. Harte and Robert W. Harte; L.H., a minor, by and through her parents and next friends, Adlynn K. Harte and Robert W. Harte, Plaintiffs - Appellants, v. THE BOARD OF COMMISSIONERS OF THE COUNTY OF JOHNSON, KANSAS; FRANK DENNING, Sheriff, in...
Attorney:Robert M. Bernstein, Bancroft PLLC, Washington, D.C. (Jeffrey M. Harris, Bancroft PLLC, Washington, D.C., Cheryl A. Pilate and Melanie S. Morgan, Morgan Pilate LLC, Kansas City, Missouri, with him on the briefs), for Plaintiff-Appellants. Lawrence L. Ferree, III (Kirk T. Ridgway and Brett T. Runy...
Judge Panel:Before LUCERO, PHILLIPS, and MORITZ, Circuit Judges. LUCERO, Circuit Judge. PHILLIPS, Circuit Judge. MORITZ, J.
Case Date:July 25, 2017
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
SUMMARY

Robert Harte and his two children visited a garden store where they purchased a small bag of supplies to grow tomatoes and other vegetables in the basement of the family home 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’ where he would spend three or four hours per day surveilling the garden store, keeping... (see full summary)

 
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Page 1154

864 F.3d 1154 (10th Cir. 2017)

ADLYNN K. HARTE; ROBERT W. HARTE; J.H., a minor, by and through his parents and next friends, Adlynn K. Harte and Robert W. Harte; L.H., a minor, by and through her parents and next friends, Adlynn K. Harte and Robert W. Harte, Plaintiffs - Appellants,

v.

THE BOARD OF COMMISSIONERS OF THE COUNTY OF JOHNSON, KANSAS; FRANK DENNING, Sheriff, in his official and individual capacity; MARK BURNS, deputy, in his individual capacity; EDWARD BLAKE, deputy, in his individual capacity; MICHAEL PFANNENSTIEL, deputy, in his individual capacity; JAMES COSSAIRT, deputy, in his individual capacity; LARRY SHOOP, deputy, in his individual capacity; LUCKY SMITH, deputy, in his individual capacity; CHRISTOPHER FARKES, deputy, in his individual capacity; THOMAS REDDIN, lieutenant, in his individual capacity; TYSON KILBEY, deputy, in his individual capacity; LAURA VRABAC, deputy, in his individual capacity; JIM WINGO, sergeant, Missouri Highway Patrol, in his individual capacity, Defendants - Appellees,

and

NATE DENTON, deputy, in his individual capacity, Defendant.

CATO INSTITUTE; MARIJUANA POLICY PROJECT, Amici Curiae

No. 16-3014

United States Court of Appeals, Tenth Circuit

July 25, 2017

Page 1155

[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Kansas. (D.C. No. 2:13-CV-02586-JWL).

Robert M. Bernstein, Bancroft PLLC, Washington, D.C. (Jeffrey M. Harris, Bancroft PLLC, Washington, D.C., Cheryl A. Pilate and Melanie S. Morgan, Morgan Pilate LLC, Kansas City, Missouri, with him on the briefs), for Plaintiff-Appellants.

Lawrence L. Ferree, III (Kirk T. Ridgway and Brett T. Runyon, with him on the brief), Ferree, Bunn, Rundberg & Ridgway, Chtd., Overland Park, Kansas, for Johnson County Defendants-Appellees.

Chris Koster, Attorney General, and Jeremiah Morgan, Deputy Solicitor General, Jefferson City, Missouri, on the brief for Sgt. James Wingo, Defendant-Appellee.

Ilya Shapiro and Randal J. Meyer, Cato Institute, Washington, D.C., filed an amicus curiae brief for Cato Institute.

Kate M. Bell, Marijuana Policy Project, Washington, D.C., and Tejinder Singh, Goldstein & Russell, P.C., Bethesda, Maryland, filed an amicus curiae brief for the Marijuana Policy Project.

Before LUCERO, PHILLIPS, and MORITZ, Circuit Judges.

OPINION

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PER CURIAM

In this appeal, we affirm in part and reverse in part the district court's grant of summary judgment in favor of the defendants. Although the panel members write separately, each issue has been resolved by a minimum two-judge majority. The disposition of the claims is as follows: We AFFIRM the district court's grant of summary judgment on all claims asserted against defendant Jim Wingo. We similarly AFFIRM as to the plaintiffs' excessive force and Monell liability claims. However, we REVERSE the district court's grant of summary judgment on the unlawful search and seizure claims asserted against the remaining defendants. On remand, plaintiffs' claim under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), is limited to their theory that one or more of the remaining defendants lied about the results of the field tests conducted in April 2012 on the tea leaves collected from the plaintiffs' trash. We further REVERSE the grant of summary judgment as to the four state-law claims raised on appeal. We REMAND these claims to the district court for further proceedings not inconsistent with these opinions.

LUCERO, Circuit Judge.

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.

" [W]hen it comes to the Fourth Amendment, the home is first among equals. At the Amendment's very core stands the

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right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." Florida v. Jardines, 569 U.S. 1, 133 S.Ct. 1409, 1414, 185 L.Ed.2d 495 (2013) (quotations omitted). 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. The Fourth Amendment does not condone this conduct, and neither can I.

I

A

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.

B

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

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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...

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