940 F.3d 498 (10th Cir. 2019), 18-3091, Harte v. Board of Commissioners of County of Johnson, Kansas

Docket Nº:18-3091
Citation:940 F.3d 498
Opinion Judge:CARSON, Circuit Judge.
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; Mark Burns; ...
Attorney:R. Allan Pixton, Kirkland & Ellis LLP, Chicago, Illinois (Cheryl A. Pilate, Morgan Pilate LLC, Kansas City, Missouri, Mark J. Nomellini, Kirkland & Ellis LLP, Chicago, Illinois, and Subash S. Iyer, Kirkland & Ellis LLP, Washington D.C., with him on the briefs), for Plaintiffs - Appellants. J. Law...
Judge Panel:Before LUCERO, HARTZ, and CARSON, Circuit Judges.
Case Date:October 04, 2019
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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940 F.3d 498 (10th Cir. 2019)

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; Mark Burns; Edward Blake; Michael Pfannenstiel; James Cossairt; Larry Shoop; Lucky Smith; Christopher Farkes; Thomas Reddin; Tyson Kilbey; Laura Vrabac, Defendants-Appellees,

No. 18-3091

United States Court of Appeals, Tenth Circuit

October 4, 2019

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

R. Allan Pixton, Kirkland & Ellis LLP, Chicago, Illinois (Cheryl A. Pilate, Morgan Pilate LLC, Kansas City, Missouri, Mark J. Nomellini, Kirkland & Ellis LLP, Chicago, Illinois, and Subash S. Iyer, Kirkland & Ellis LLP, Washington D.C., with him on the briefs), for Plaintiffs - Appellants.

J. Lawson Hester, Pettis, Barfield & Hester, P.A., Jackson, Mississippi (Lawrence L. Ferree, III, Kirk T. Ridgway, and Brett T. Runyan, Ferree, Bunn, Rundberg & Ridgway, Chtd., Overland Park, Kansas, with him on the brief), for Defendants - Appellees.

Before LUCERO, HARTZ, and CARSON, Circuit Judges.

OPINION

CARSON, Circuit Judge.

Although we strive to ensure that the parties, the district courts, and the public understand our decisions, sometimes we falter. Plaintiffs previously appealed the district court’s rulings on summary judgment and qualified immunity. We affirmed in part, reversed in part, and remanded. That sounds straightforward enough. But no judge on the prior panel could agree on a common disposition. As a result, we issued a one-paragraph per curiam opinion followed by three separate opinions. The district court, Plaintiffs, and Defendants all interpreted our per curiam opinion differently.

Today we must decide, among other things, how to proceed where two of the three panel judges share some common rationale, yet ultimately reach different outcomes, and a different combination of two judges reach a common outcome by using different rationales. Such a situation is rare. Specifically, in this case, Plaintiffs allege that probable cause dissipated during

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the search of their home. One judge on the prior panel held that Plaintiffs abandoned the issue on appeal. Two judges agreed that probable cause dissipated, but one of those two judges voted to grant qualified immunity because he believed the law was not clearly established. Thus, we are left with a panel opinion where two judges employed common reasoning to conclude probable cause dissipated, but a different combination of two judges believed Defendants were entitled to summary judgment on that issue, albeit for different reasons. Which is our holding that the district court must follow: allow the dissipation claim to proceed based on the common reasoning or dismiss the dissipation claim based on the common result? For the reasons that follow, we hold that, in applying a fractured panel’s holding, the district court need only look to and adopt the result the panel reached. To hold otherwise would be to go against the result expressed by two of the three panel members. That we cannot do. Accordingly, we exercise jurisdiction pursuant to 28 U.S.C. § 1291, affirm in part, reverse in part, and remand for further proceedings.

I.

After working many years in a United States intelligence agency in Washington D.C., Plaintiffs Adlynn Harte ("Addie") and Robert Harte ("Bob") sought a quiet, family-oriented neighborhood in which to raise their two children. Ultimately, they decided on Leawood, Kansas— a suburb of Kansas City. Bob, a stay-at-home father, began growing an indoor vegetable garden with his son, L.H., as part of an educational project. This fateful decision— along with Addie’s enjoyment of loose-leaf tea— led to Johnson County, Kansas law enforcement officers surprising Plaintiffs with a SWAT-style raid on their suburban home just before 7:30 a.m. on April 20, 2012. Armed with a battering ram, firearms, and a disputed warrant, Johnson County Sheriff’s Deputies detained Plaintiffs for over two hours while they searched Plaintiffs’ residence from stem to stern. Before turning to Plaintiffs’ claims against Defendants, we explain how this suburban family with no criminal record other than a traffic ticket became embroiled in a marijuana raid.

On August 9, 2011, Bob and his children went shopping at Green Circle Garden Center. While sitting in his police cruiser in the parking lot, Missouri Highway Patrol officer Jim Wingo observed Bob leave the store with a small bag. This was no accident. Trooper Wingo was spending three to four hours per day watching this garden store. He kept meticulous notes on the store’s customers, noting their sexes, ages, vehicle descriptions, license plate numbers, and what they had purchased. Wingo never saw Mr. Harte at the store again.

The previous April, Wingo initiated "Operation Constant Gardener" to round up people he had seen visiting local hydroponic gardening stores. He partnered with local law enforcement agencies that investigated the individuals on his list. Sergeant Tom Reddin of the Johnson County Sheriff’s Office contacted Wingo about conducting a similar operation on April 20, 2012. Wingo informed Reddin that he did not gather enough information to justify a full throttle April 20 operation. Nevertheless, Reddin wanted to "at least mak[e] a day of it." Wingo sent Reddin a list of car license plates he had seen in the garden store parking lot and the names of their registered owners. Bob’s name was on the list.

Reddin then ordered his deputies to investigate the Hartes. The deputies did not look into the Hartes’ backgrounds. Rather, they merely collected and searched the Hartes’ trash on three different occasions.

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During the first search on April 3, 2012, Deputies Edward Blake and Mark Burns found a small amount of wet, green vegetation dispersed throughout the trash. They did not find it suspicious, however, and declined to photograph it. One week later, on April 10, Deputy Burns again searched the Hartes’ garbage. He again found green vegetation, which he thought looked like "wet marijuana plant material." In his notes, he mentioned that he had found "[a] similar quantity of plant material of the same nature" in the Hartes’ trash a week earlier, but also stated that he had disregarded it because "it was found among other innocent plant material and was misidentified." Again, Deputy Burns declined to take photographs of the wet plant material. His field-test of the substance, though, was positive for tetrahydrocannabinol ("THC"), which is one of the main chemical compounds found in marijuana. Finally, on April 17, Deputies Burns and Blake searched for the third and final time. They found more green vegetation, which again tested positive for THC. The deputies did not photograph any of the substances, nor did they send them to a crime lab for testing.

Unknown to the deputies, Addie enjoyed loose-leaf tea. If the deputies would have sent the wet vegetation to a crime lab for testing, they would have discovered that the wet vegetation was not marijuana but instead was Addie’s loose-leaf tea. Rather than conducting further investigation, the deputies prepared a search warrant affidavit relying solely on the loose-leaf tea found in the garbage and Bob’s shopping trip to a garden store eight months earlier. A state judge issued the search warrant.

Armed with the search warrant, the deputies— clad in bullet proof vests and guns— raided the Hartes’ home just before 7:30 a.m. on April 20, 2012. Bob opened the front door and the deputies flooded in the foyer. Bob ended up on the ground with an assault rifle pointed at or near him. The deputies ordered Addie and the couple’s two young children to sit cross-legged against a wall. A deputy eventually allowed the family to move to the living room couch where an armed deputy kept watch over them.

After searching the home for about fifteen to twenty minutes, the deputies found the hydroponic tomato garden that was readily visible from the exterior of the home through a front-facing basement window. And after ninety minutes of extensive searching, a couple of the deputies claimed to smell the "faint odor of marijuana" at various places in the residence. A drug-detection dog showed up, but did not alert the officers to any other areas of the house requiring further searches. The dog’s handler also did not smell marijuana.

Before leaving the residence empty-handed, the deputies "strongly suggested" to the Hartes that their 13-year-old son was a drug user. The deputies recommended the Hartes drug test him and have a family meeting to discuss their family problems.

A year and a half later Plaintiffs sued Defendants. Count I of Plaintiffs’ operative complaint challenged the search warrant under Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), which held if substantial evidence exists to support deliberate falsehood or reckless disregard for the truth, and the exclusion of false statements would undermine the existence of probable cause, a warrant is invalid. Specifically, Plaintiffs asserted: (1) the deputies lied about the results of the field tests they performed on the wet vegetation they found in the trash; (2) the deputies misinterpreted the test results of the vegetation, construing negative results as positive; and (3) assuming...

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