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,
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.
from the United States District Court for the District of
Kansas (D.C. No. 2:13-CV-02586-JWL)
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
Koster, Attorney General, and Jeremiah Morgan, Deputy
Solicitor General, Jefferson City, Missouri, on the brief for
Sgt. James Wingo, Defendant-Appellee.
Shapiro and Randal J. Meyer, Cato Institute, Washington,
D.C., filed an amicus curiae brief for Cato Institute.
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
LUCERO, PHILLIPS, and MORITZ, Circuit Judges.
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 (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.
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.
it comes to the Fourth Amendment, the home is first among
equals. At the Amendment's very core stands the right of
a man to retreat into his own home and there be free from
unreasonable governmental intrusion." Florida v.
Jardines, 133 S.Ct. 1409, 1414 (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.
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
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.
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.
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.
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.
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
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.
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.
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.
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.
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
review the grant of summary judgment de novo. Hobbs ex
rel. Hobbs v. Zenderman, 579 F.3d 1171, 1179 (10th Cir.
2009). Summary judgment is appropriate only if, viewing the
evidence in the light most favorable to the non-moving party,
"there is no genuine dispute as to any material fact and
the movant is entitled to a judgment as a matter of
law." Fed.R.Civ.P. 56(a). In deciding whether to grant
summary judgment on qualified immunity grounds, a court must
determine: (1) "whether the plaintiff's allegations,
if true, establish a constitutional violation"; and (2)
"whether the law was clearly established at the time the
alleged violation occurred." Gomes v. Wood,
451 F.3d 1122, 1134 (10th Cir. 2006) (quotation omitted).
Hartes assert three violations of their Fourth Amendment
rights: (1) an unlawful search, conducted pursuant to a false
and misleading search-warrant affidavit; (2) an unlawful
seizure; and (3) use of excessive force in carrying out the
search. The Hartes also assert Monell liability
against Sheriff Denning and Johnson County in connection with
these constitutional violations, as well as related state-law
claims.Viewing the facts in a light most favorable
to the Hartes, the record is sufficient to support each of
these claims and deny defendants qualified immunity.
Fourth Amendment permits the issuance of search warrants only
"upon probable cause, supported by Oath or
affirmation." U.S. Const. amend. IV. Inherent in this
language is "the obvious assumption [ ] that there will
be a truthful showing" of facts to support
probable cause, meaning that "the information put forth
is believed or appropriately accepted by the affiant as
true." Franks v. Delaware, 438 U.S. 154, 164-65
(1978) (quotation omitted). Thus, if there is substantial
evidence 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. See id. at 171-72. This is
equally true when an affiant knowingly or recklessly omits
information from an affidavit that would have negated
probable cause. Stewart v. Donges, 915 F.2d 572,
582-83 (10th Cir. 1990). "Recklessness may be inferred
from omission of facts which are 'clearly critical'
to a finding of probable cause." DeLoach v.
Bevers, 922 F.2d 618, 622 (10th Cir. 1990). Accordingly,
if there is evidence from which a jury could conclude that
the officers made intentional or reckless misstatements in
their warrant affidavit, or recklessly omitted information
"critical" to a probable cause determination,
summary judgment is inappropriate. See id. at
622-23. "We have long recognized that it is a jury
question in a civil rights suit whether an officer had
probable cause." Id. at 623.
record evidence before us creates a triable issue of fact on
whether Burns and Blake lied about having conducted the field
tests, or about having obtained "positive" results.
The only evidence that the field tests were conducted is the
deputies' own testimony and representations in the
warrant affidavit; there is no photographic evidence, despite
Blake's testimony that he had a camera in hand at the
time. The Hartes have presented sufficient evidence to cast
doubt on the veracity of the deputies' statements. And
while the term "positive" is used by the law
enforcement witnesses throughout the record, the test upon
which they seek to rely clearly precludes such a conclusion.
The face of the package patently provides, "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." Only an analytical
lab test as prescribed by the container could yield a final,
positive result. The government concedes that the requisite
laboratory analysis was not conducted. Q.E.D., there is no
evidence of positive test results.
the plant matter found on April 10 and 17 was similar to the
material collected on April 3. Yet on April 3, it was
identified as innocent plant material and discarded without
testing. As the April 20 deadline approached, however, it is
notable that the officers determined that this previously
innocuous material was now suspicious and should be tested
for the presence of marijuana. A jury could certainly infer
the reason for this about-face was pressure to meet an
arbitrary April 20 deadline for manufacturing probable cause.
were quite candid about the selection of April 20 as a
publicity stunt. Emails sent following the 2011 operation
discussed ideas for the following year, including "a
telethon type billboard with a large green marijuana plant
filling up as the pledges come in, making T-Shirts and
whatnot." This is too rich for fiction. Messaging about
the purpose of the raids was imbued with theatrics: Wingo
noted one agency's observation that the raids would make
"4/20 . . . something to fear rather than something to
celebrate"; and the JCSO's 2012 press release framed
the raids as law enforcement's "celebrat[ion] [of]
this so-called [marijuana] holiday." Moreover, the JCSO
began planning the press conference and drafting public
statements touting their success long before officers had
even established probable cause to conduct the raids. Adding
to the pressure of the 4/20 deadline, the success of this
publicity stunt depended on a limited pool of
"suspects" from Wingo's garden store
surveillance. Wingo himself stated that he did not have
enough new contacts to justify a 2012 operation, but Reddin
was determined to "at least mak[e] a day of it."
The record is mute about a legitimate, law-enforcement
rationale for requiring the raids to be conducted on that
together, these facts are sufficient to permit a conclusion
that the officers fabricated the "positive" field
tests. As the judge who issued the warrant indicated,
Harte's one trip to the garden store, standing alone,
would have been insufficient to establish probable cause. And
the officers were under enormous pressure to make the
requisite showing in time to carry out the raids on April 20.
The evidence presented thus gives rise to a reasonable
inference of a classic Franks violation, a law that
was clearly established at the time of the officers'
conduct in this case. See Clanton v. Cooper, 129
F.3d 1147, 1154 (10th Cir. 1997), overruled on other
grounds by Becker v. Kroll, 494 F.3d 904 (10th Cir.
2007); see also Kaul v. Stephan, 83 F.3d 1208, 1213
n.4 (10th Cir. 1996) ("A state officer is not
automatically shielded from Section 1983 liability merely
because a judicial officer approves a warrant."). It
cannot be the case that a jury would be legally obligated to
accept the word of a government agent-based on his say-so
alone-when that agent had every motive and opportunity to
dissemble. Accordingly, the district court erred in granting
there is a genuine dispute of fact regarding the validity of
the search warrant, summary judgment as to the Hartes'
unlawful seizure claim must also be reversed. If "the
search was illegal and not supported by probable cause, the
justification for using the search as the foundation for the
seizure disappears because it was the connection of the
individual with a location suspected of harboring criminal
activity that provided the reasonable basis for the
seizure." Poolaw v. Marcantel, 565 F.3d 721,
732 (10th Cir. 2009) (quotation and brackets omitted);
see also Michigan v. Summers, 452 U.S. 692, 703
(1981) ("[A] detention represents only an incremental
intrusion on personal liberty when the search of a home has
been authorized by a valid warrant." (emphasis
added)). 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
injury to the Hartes' constitutional rights continued
through defendants' execution of the search warrant. The
Fourth Amendment requires examination of whether or not a
search and seizure is conducted in a reasonable manner.
See Tennessee v. Garner, 471 U.S. 1, 7-8 (1985). We
have previously recognized that "[t]he decision to
deploy a SWAT team to execute a warrant necessarily involves
the decision to make an overwhelming show of force-force far
greater than that normally applied in police encounters with
citizens." Holland ex rel. Overdorff v.
Harrington, 268 F.3d 1179, 1190 (10th Cir.
2001). Thus, Holland clearly established
that the decision to deploy a SWAT team in such circumstances
is subject to a Fourth Amendment reasonableness analysis. 268
F.3d at 1190. Accordingly,
[w]here a plaintiff claims that the use of a SWAT team to
effect a seizure itself amounted to excessive force, we
review the decision to use that degree of force by
"balanc[ing] the nature and quality of the intrusion on
the individual's Fourth Amendment interests against the
importance of the governmental interests alleged to justify
Id. (quoting Garner, 471 U.S. at 8).
this test, the court in Holland concluded that the
decision to use a SWAT team was reasonable, in light of
defendants' assertions that: (1) the property owner had a
history of violence; (2) there were several other individuals
residing on the property who also had histories of violence;
(3) the officers suspected there were firearms on the
property; (4) the officers thought there might be at least
7-8 adults at the compound; (5) the officers believed the
raid was likely to be very dangerous to all persons on scene
and were especially concerned about the safety of any
children present; and (6) the use of a SWAT team was intended
to ensure a quick and safe execution of the search warrant
and preservation of evidence. Id. at 1190-91.
these facts are present in this case. Not only did the Hartes
lack any history of violent crime, they lacked any criminal
history at all. They were well-respected community
members with legal and law-enforcement backgrounds, who had
previously been given a high security clearance at the CIA.
The officers also did not have any reason to believe there
would be other adults at the home or any additional threats
to the officers' safety. And they have never suggested
that destruction of evidence was a concern. Moreover, there
were considerations that should have countenanced against the
use of a SWAT team in this instance, including the likely
presence of two young children, and the fact that the
officers did not consider the search a high-risk
offer only one argument to justify the deputies' conduct:
they "were serving a felony narcotics warrant with
little to no knowledge about the occupants." But this
argument fails in two respects. First, under
Holland, the potential existence of narcotics
cannot, by itself, justify the decision to deploy a tactical
team to execute a search warrant. To conclude otherwise would
swallow the balancing test in its entirety and ignore past
precedent, which makes clear that "not every drug
investigation" will "pose special risks to officer
safety." Richards v. Wisconsin, 520 U.S. 385,
393 (1997) (rejecting a categorical exception to
knock-and-announce requirement for searches involving
narcotics); see also United States v. Basham, 268
F.3d 1199, 1205 (10th Cir. 2001) (rejecting argument that
"because a person is engaged in the drug trade, that
person is likely to be dangerous and possess firearms").
The second issue with the deputies' argument is that it
relies on their own willful ignorance and failure to conduct
an adequate investigation. The use of a SWAT-style raid may
not be justified by the unknowns of the search if those
unknowns were readily discoverable through simple
investigatory tactics, such as running a background check.
Cf. Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1259
(10th Cir. 1998) ("[P]olice officers may not ignore
easily accessible evidence and thereby delegate their duty to
investigate and make an independent probable cause
determination based on that investigation."); BeVier
v. Hucal, 806 F.2d 123, 128 (7th Cir. 1986) (stating
that "police officer may not close her or his eyes to
facts" and that "[r]easonable avenues of
investigation must be pursued"). Thus, under clearly
established precedent,  defendants' use of a SWAT-style
raid to execute the search in this instance was plainly
the above analysis is sufficient to reverse the district
court on the Hartes' excessive force claim, another
troubling aspect of the search is defendants' treatment
of the Hartes' children. I have already called into
question the reasonableness of the decision to execute a
SWAT-style raid at a time when young children were likely to
be present in the home. But the Hartes have also raised a
triable issue as to whether the officers unnecessarily
prolonged the detention of the children, despite a concerned
neighbor's request to remove them from the home.
considering the reasonableness of a particular use of force,
"personal security and individual dignity interests,
particularly of non-suspects, should also be
considered." Cortez v. McCauley, 478 F.3d 1108,
1131 (10th Cir. 2007) (en banc). These considerations are
especially heightened "when the officers' use of
force is directed at children . . . ." Maresca v.
Bernalillo Cty., 804 F.3d 1301, 1313 (10th Cir. 2015).
Mrs. Harte testified that her family was required to sit in
their living room under armed guard for two and a half hours,
and that it "was clear if we did not comply with every
command . . . these officers were prepared to use the
multitude of firearms available to them." At no point
did officers inform her that she could take her children to
school or otherwise remove them from the situation and, as
noted, a neighbor's offer to take the children was
rebuffed. That the children were permitted to play with toys,
use the restroom, and get water does not justify this
unreasonably prolonged detention. Cf. Cortez, 478
F.3d at 1131-32 (officers' seizure of plaintiff by
escorting her from bedroom in the middle of the night to
locked patrol car for an hour was excessive, even though she
was permitted to use a phone during her detention).
clearly established that officers may "use only as much
force as [is] necessary to secure their own safety and
maintain the status quo, " keeping in mind the safety
and dignity interests of non-suspects. Id. at 1131.
The officers in this case clearly exceeded that mandate.
See Walker v. City of Orem, 451 F.3d 1139, 1149-50
(10th Cir. 2006) (ninety-minute detention of non-suspects, in
absence of any exigencies, could not be justified based on
investigative rationale or officers' need to control
Hartes assert liability against Sheriff Denning and Johnson
County for establishing a policy or custom that caused the
misconduct in this case. See generally Monell v.
Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). A
government policy or custom is created by "lawmakers or
by those whose edicts or acts may fairly be said to represent
official policy." Id. at 694. The record in
this case demonstrates two policies that may serve as the
basis for plaintiffs' Monell claim.
first is the JCSO's investigatory policy under which the
targets, deadline, and even success of the April 20 drug raid
were pre-determined. As discussed supra, this placed
enormous pressure on the deputies to find probable cause in
time to make the raid publicity-worthy, thereby creating
incentives for the deputies to cut corners and fabricate
probable cause. The Hartes have sufficiently
demonstrated both the "requisite degree of
culpability" and "a direct causal link between
[this policy] and the deprivation of federal rights."
Bd. of Cty. Comm'rs v. Brown, 520 U.S. 397, 404
second policy at issue is Sheriff Denning's decision to
authorize the use of inconclusive field tests with a high
false positive rate, and without the laboratory confirmation
expressly required by the manufacturer's label, as the
sole basis for probable cause. The reliability of evidence
used to support probable cause is "highly relevant"
in determining whether to issue a search warrant.
Illinois v. Gates, 462 U.S. 213, 230, 238 (1983)
(stating that informant's reliability is highly relevant
to determining value of his report in probable cause
analysis); see also United States v. Ludwig, 641
F.3d 1243, 1251 (10th Cir. 2011) ("[I]t surely goes
without saying that a drug dog's alert establishes
probable cause only if that dog is reliable."). The
field tests used by the JCSO, which are expressly identified
by the manufacturer as a preliminary tool requiring
laboratory confirmation, do not meet this standard of
reliability. One study found a 70% false positive rate using
this field test, with positive results obtained from
substances including vanilla, peppermint, ginger, eucalyptus,
cinnamon leaf, basil, thyme, lemon grass, lavender, organic
oregano, organic spearmint, organic clove, patchouli,
ginseng, a strip of newspaper, and even air. As demonstrated
by this litigation, caffeine may now be added to that list. A
70% false positive rate obviously flunks the reliability
test. Cf. Eaton v. Lexington-Fayette Urban Cty.
Gov't, 811 F.3d 819, 822 (6th Cir. 2016)
("Procedures that generate results that are not close to
'accurate in the overwhelming majority of cases' may
themselves cause testing to be unreasonable in the Fourth
Amendment sense." (citation omitted) (quoting
Skinner v. Ry. Labor Execs. Ass'n, 489 U.S. 602,
632 n.10 (1989))).
argument, the respondents sought to wrap themselves in the
cloak of the Kansas legislature by arguing that Kansas
statutes justified their use of field tests. See
Kan. Stat. Ann. § 22-2902c; Kan. Admin. Regs. §
10-22-01. The statutes may allow the use of field tests, but
implicit in the statutory scheme is a requirement that the
use be in accord with the label, and the label here required
confirmation by laboratory analysis. There is nothing in the
record to suggest the legislature intended that the field
tests be used contrary to label, and it would not be within
the legislature's power to permit such improper use.
Moreover, the regulations require that the field test be
"administered by a law enforcement officer trained in
the use of such field test by a person certified by the
manufacturer of that field test." §
22-2902c(a)(1)(B). Our search of the record to find any
evidence of such training has been fruitless. For lack of
such connection, the respondents' argument goes nowhere.
failing to ensure the reliability of the field tests used by
the deputies in this case, and by not requiring lab
confirmation as a prerequisite for seeking a search warrant,
Sheriff Denning and the JCSO allowed deputies to base
probable cause on largely inaccurate information. The
constitutional violations in this case can be directly
attributed to that policy.
physical entry of the home is the chief evil against which
the wording of the Fourth Amendment is directed."
Payton v. New York, 445 U.S. 573, 585 (1980)
(quotation omitted). In this case, the Hartes' home was
subject to an invasive search as a direct result of a JCSO
publicity stunt that lacked any legitimate, law enforcement
rationale. Defendants seek to justify their conduct based on
Harte's one trip to a garden store and the discovery of
loose-leaf tea in the family's trash. Under this
standard, the homes of innocent American citizens would be
vulnerable to governmental intrusion. Because the police
conduct examined here is unacceptable under constitutional
standards, I would reverse.
PHILLIPS, Circuit Judge.
Fourth Amendment guarantees the people the right to be secure
in their houses against unreasonable searches and seizures.
U.S. Const. amend. IV. When deciding whether a search or
seizure is reasonable, we examine whether the totality of the
circumstances justified the particular conduct at issue.
Tennessee v. Garner, 471 U.S. 1, 8-9 (1985). In this
case, we must decide whether law-enforcement officers who had
obtained a search warrant still violated the Fourth Amendment
during their extended search of the house of Bob and Addie
a quiet, Kansas family with two young children find itself
enmeshed in one Kansas county's "4/20"
crackdown on marijuana-grow operations? It began when
a Missouri Highway Patrol trooper tipped deputy sheriffs in
Johnson County, Kansas that, several months earlier, Mr.
Harte had left a hydroponic-gardening store carrying a small
bag, accompanied by his young children. Acting on the tip,
two deputies searched the Hartes' outside garbage for
three consecutive weeks, twice finding a small amount of wet
vegetation that they say field-tested positive for marijuana.
Based on the field tests, the Johnson County deputies
obtained a search warrant for the Hartes' house. Just
before 7:30 a.m. on April 20, 2012, after Mr. Harte opened
the door in response to their yelling and pounding, seven
deputies burst into the Hartes' house with guns drawn,
detained all four Harte family members in the living room,
and executed the search warrant.
in the search, the deputies found a hydroponic tomato-growing
operation. Even so, the deputies continued searching the
Hartes' home for an extended time, supposedly hoping to
find evidence of drug use. After searching high and low for a
trace of marijuana, even calling for a drug dog ninety
minutes into the search, the deputies found nothing. As it
turned out, the two samples of vegetation that the officers
had tested three and ten days earlier were brewed, loose-leaf
claims under 42 U.S.C. § 1983, the Hartes sued Johnson
County and all law-enforcement officers involved in the
investigation and search, alleging that the search had
violated the Hartes' Fourth Amendment right to be secure
from unreasonable searches and seizures. They also challenged
the search on state-law grounds. In their summary-judgment
motions, Defendants asserted qualified- immunity defenses,
and the district court ruled in their favor. The Hartes now
ask us to vacate the district court's decision.
Operation Constant Gardener
March 2011, just over a year before the search of the
Hartes' house, Trooper Jim Wingo of the Missouri Highway
Patrol invited law-enforcement agencies, including the
Johnson County Sheriff's Office ("Sheriff's
Office"), to participate in "Operation Constant
Gardener." Appellant's App. at A667. To agencies
expressing interest, Trooper Wingo sent the names of persons
that he had seen visiting local hydroponic-gardening stores
(more specifically, the car owners listed on the car
registrations). Upon receiving those names, the participating
agencies investigated (sometimes with trash pulls, checking
utility bills, doing knock-and-talks, and even using a
lost-puppy ploy credited to Trooper Wingo) and were able to
obtain search warrants for some properties. They executed the
warrants on April 20, 2011, a date that Trooper Wingo
described as the marijuana enthusiasts' version of
Christmas.Officers unable to obtain search warrants
for other suspected locations did knock-and-talk visits
instead of full searches. The 2011 operation uncovered forty
indoor marijuana-grow operations and resulted in eight felony
arrests. The operation also uncovered at least one
"tomato grow." Id. at A678.
year later, in February 2012, Sergeant Tom Reddin of the
Sheriff's Office sent Trooper Wingo an e-mail, asking if
Trooper Wingo had gathered enough new information to support
another round of "4/20" searches that year. Trooper
Wingo responded that he lacked sufficient information to
"justify a full throttle [4/20] operation, " but on
March 20, 2012, he sent Sergeant Reddin another list of car
license plates and their registered owners, whom Trooper
Wingo surmised had been the visitors he had seen enter the
hydroponic stores. Id. at A690.
person on the 2012 list was Bob Harte. On August 9,
2011-eight months before Trooper Wingo sent Sergeant Reddin
the list containing Mr. Harte's name- Trooper Wingo had
seen Mr. Harte enter a Green Circle store with his children.
From his parked patrol car, Trooper Wingo watched Mr. Harte
leave the store, carrying a small bag. Trooper Wingo wrote
his observations, including Mr. Harte's automobile
information, on his spreadsheet. This was the sole time that
Trooper Wingo ever saw Mr. Harte at the store.
the Sheriff's Office received Trooper Wingo's
spreadsheet-and the Hartes' home address in it-Sergeant
Reddin told his deputies to investigate the Hartes. In doing
so, the deputies never bothered to investigate the
Hartes' backgrounds. Instead, in what was apparently
common practice, deputies merely collected the Hartes'
outside trash on April 3, April 10, and April 17, 2012 to
search for evidence of a marijuana-grow operation. On April
3, Deputies Edward Blake and Mark Burns did the first trash
pull. They found a small amount of wet, green vegetation
dispersed throughout the trash, but they didn't find it
suspicious or photograph it.
later, on April 10, Deputy Burns again collected the
Hartes' outside trash. This time, Deputy Burns found
about a cup of green vegetation, which he thought looked like
"wet marijuana plant material." Appellant's
App. at A700. He noted that he had found "[a] similar
quantity of plant material of the same nature" in the
Hartes' trash the previous week, but said that he had
discarded it because "it was found among other innocent
plant material and was misidentified." Id.
Deputy Burns took no photos of this plant material, but he
did note in a report that he had field-tested it and obtained
a positive result for tetrahydrocannabinol ("THC"),
the active ingredient in marijuana.
later, on April 17, Deputies Burns and Blake again collected
the Hartes' outside trash. This time, they found about a
quarter-cup of green vegetation. In his report, Deputy Blake
mentioned that the vegetation had again tested positive for
marijuana. Again, nobody photographed the April 10 or April
17 field-test results. Nor did any Sheriff's Office
employee send the plant material to the crime lab to be
tested before Deputy Burns applied for a search warrant.
Burns prepared a search-warrant affidavit, relying on his
observations of the wet vegetation, the two positive
field-test results, and on Trooper Wingo's having seen
Mr. Harte leaving the hydroponic-gardening store carrying a
small bag. In his affidavit, Deputy Burns swore that the
field test used for the April 10 and April 17 plant material
"consist[ed] of reagents similar to those utilized by
the Johnson County Criminalistics Laboratory to conduct its
initial screening test for marijuana, " and that it was
"presumptive but not conclusive for the presence of
marijuana." Appellant's App. at A708. On April 17,
2012, a few hours after the third trash pull, a state judge
issued a search warrant, relying on Deputy Burns's
Mike Pfannenstiel assigned seven deputies to execute the
search warrant at the Hartes' house. On April 20,
2012, just before 7:30 a.m., these deputies arrived at the
Hartes' house. The deputies timed their arrival early
enough to ensure that Mr. and Mrs. Harte would not yet have
left for work. At that hour, Mr. and Mrs. Harte were home
with their two children, aged thirteen and
seven. The deputies wore bulletproof vests and
carried guns, and they pounded on the door and screamed for
the Hartes to let them in. When Mr. Harte opened the door,
the deputies "flooded the foyer" before he could
say anything. Id. at A104; A132. One deputy carried
an AR-15 rifle and the others carried pistols. All had guns
drawn and pointed down, in the "low ready"
position. Id. at A558, A561, A580. Mrs. Harte,
roused from bed by the deputies' loud knocking and entry,
rushed downstairs and saw armed officers in bulletproof vests
"spreading through her house." Appellant's
Opening Br. at 16.
deputy pointed his assault rifle either at or near Mr. Harte,
who lay prone on the floor, other deputies ordered Mrs. Harte
and the Hartes' two young children to sit cross-legged
against the wall. The deputies then moved the Hartes to the
living-room couch, and an armed deputy monitored them during
the search. Mrs. Harte asked for permission to leave, but a
deputy told her she couldn't (the deputies claim that if
anyone had asked to leave, they could have done
so). The deputies let the Hartes and their
children use the bathroom, make phone calls, and play video
games. Deputy Blake asked the Hartes questions, but
didn't press them when the Hartes said they didn't
want to talk.
deputies searched the house for about two-and-a-half hours
even though they quickly discovered that the Hartes were
using their hydroponic-grow operation to grow tomatoes and
vegetables. After about ninety minutes, and after the house
had been thoroughly searched, a couple of deputies claimed to
have smelled a "faint odor of marijuana . . . at various
places in the residence, " and called for a drug dog.
Appellant's App. at A177-78. But the dog
didn't alert, and his handler never noticed a smell of
marijuana. After the search flopped, the deputies in parting
told the Hartes the family should sit down and talk about
drug use. The deputies "strongly suggested" that
the Hartes' thirteen-year-old son was a drug user, and
recommended that they "take [their] son to a
pediatrician for an anonymous drug test, " and
"have a family meeting to try and discuss the
problems" they had in their family. Id. at
A731; Appellee Sheriff's Office's App. at JCSA458.
afternoon, the Sheriff's Office issued a press release
and held a press conference, even though Sheriff Denning had
tried to cancel it because the April 20, 2012 searches had
uncovered no marijuana grows. Despite the day's failures,
Sheriff Denning still spoke to television reporters in front
of a pile of marijuana plants while warning about the dangers
of marijuana. Privately, the Sheriff's Office was
disappointed with the operation's results, and lamented
its failure. Worse yet, the Sheriff's Office later
learned that the green vegetation from the Hartes'
outside trash was not marijuana, but instead brewed,
loose-leaf tea. The deputies had used the Lynn Peavey
KN-reagent field test on the tea, and obtained two
Hartes immediately complained to the Sheriff's Office
about the search, and, unsatisfied with the response,
requested records related to the investigation. About four
months after the search, and after the district
attorney's office told the Sheriff's Office that the
Hartes had complained about the search, Deputy Blake
submitted the vegetation found in the Hartes' trash to
the county's crime lab. Using the same brand and type of
field test used by the deputies, the crime lab determined
that there "was a peak for caffeine in the sample."
Appellant's App. at A198. A lab technician tested both
tea samples from the Hartes' trash and got two
false-positive results. But according to the technician, the
leaves didn't "appear to be marijuana" to the
naked eye, and under the microscope they didn't
"look anything like marijuana leaves or stems."
Hartes retained their own expert to test four kinds of
Teavana-brand, loose-leaf tea, the brand that Mrs. Harte had
brewed in April 2012. For each test, the expert brewed the
tea samples and then tested them on the same day. The expert
used three different field tests: one was the exact brand and
type of test that the deputies had used, the KN Reagent Lynn
Peavey Marijuana QuickCheck Pouch. The second was a different
test by the same manufacturer but with different reagents,
the D-L Reagent Lynn Peavey Marijuana QuickCheck Pouch. And
the third was a test by a different manufacturer using the
same reagents as the test the deputies had used, the
NarcoPouch Marijuana Test Kit #909 by ODV.
the KN-Reagent Marijuana QuickCheck test from Lynn Peavey,
the expert obtained four negative results. With the Lynn
Peavey D-L test, one of the teas falsely tested positive, two
tested negative, and one sample wasn't tested. Finally,
using the NarcoPouch with the KN Reagent, the expert obtained
three negative results, and didn't test one sample. So
just once did any of the brewed tea leaves test positive for
all this was happening, Lieutenant Pfannenstiel reached out
to Doug Peavey, the president of Lynn Peavey, the
manufacturer of the KN field test that the Sheriff's
Office had been using to test for marijuana. Doug Peavey told
Lieutenant Pfannenstiel that the KN-reagent test "is
primarily only used in the UK and Europe." Id.
at A202. But Peavey confirmed that the KN test reacts with
THC, and reminded the Lieutenant that "you guys in
particular have had some successes in the past with KN and
testing for [synthetic marijuana]." Id.
Concerned about the e-mail, Captain Douglas Baker told his
team to stop using the KN-reagent test and to use the D-L
test instead. The Johnson County crime lab agreed that the
KN-reagent test was the wrong field-test kit to use to test
for marijuana, and recommended sending potential evidence to
the crime lab in addition to field-testing it.
The District Court Case
November 2013, asserting claims under 42 U.S.C. § 1983,
the Hartes sued Johnson County, Sheriff Denning, Trooper
Wingo,  and several Johnson County deputies. The
Hartes alleged that the deputies had violated their Fourth
Amendment rights to be secure against unreasonable searches
and seizures. They also brought a claim under Monell v.
Department of Social Services of New York, 436 U.S. 658
(1978), claiming that Johnson County and Sheriff Denning had
engaged in unconstitutional practices and failed to properly
train and supervise their employees. Finally, the Hartes
brought state-law claims against the deputies for trespass,
assault, false arrest and imprisonment, abuse of process,
intentional infliction of emotional distress, and false light
invasion of privacy. Trooper Wingo moved to dismiss the
claims against him, but the district court denied his motion.
Later, Trooper Wingo and the other officials filed separate
summary-judgment motions on qualified-immunity grounds.
December 2015, the district court granted both
summary-judgment motions, concluding (1) that the
search-warrant affidavit gave probable cause to search the
Hartes' house, making the search reasonable under the
Fourth Amendment; (2) that even if the probable cause had
dissipated sometime during the search, the Fourth Amendment
issue wasn't beyond debate, so the defendants hadn't
violated clearly established law; (3) that the defendants
didn't use excessive force when searching the Hartes'
house; and (4) that because there was no underlying
constitutional violation by any individual deputy, the
Hartes' Monell and state-law claims failed
because the warrant entitled them to enter the Hartes'
house, to search it, and to detain the family during the
Standard of Review
review de novo a grant of summary judgment based on qualified
immunity. Puller v. Baca, 781 F.3d 1190, 1196 (10th
Cir. 2015). "[Q]ualified immunity . . . is both a
defense to liability and a limited 'entitlement not to
stand trial or face the other burdens of
litigation.'" Ashcroft v. Iqbal, 556 U.S.
662, 672 (2009) (quoting Mitchell v. Forsyth, 472
U.S. 511, 526 (1985)). We review summary-judgment motions on
qualified-immunity grounds differently from other
summary-judgment motions. See Koch v. City of Del
City, 660 F.3d 1228, 1238 (10th Cir. 2011). When a
defendant asserts a qualified-immunity defense, the burden
shifts to the plaintiff to submit sufficient evidence to show
(1) the violation of a constitutional right, (2) that was
clearly established at the time of the violation. See
id. We may decide which of these prongs to address
first, and need not address both. Thomson v. Salt Lake
Cty., 584 F.3d 1304, 1312 n.2 (10th Cir. 2009).
constitutional right is clearly established when
"'[t]he contours of [a] right [are] sufficiently
clear' that every 'reasonable official would have
understood that what he is doing violates that
right.'" Ashcroft v. al-Kidd, 563 U.S. 731,
741 (2011) (alterations in original) (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)). Though the
plaintiff need not cite a case directly on point,
"existing precedent must have placed the statutory or
constitutional question beyond debate." Id.
"The more obviously egregious the conduct in light of
prevailing constitutional principles, the less specificity is
required from prior case law to clearly establish the
violation." Pierce v. Gilchrist, 359 F.3d 1279,
1298 (10th Cir. 2004). Still, we must not "define
clearly established law at a high level of generality."
al-Kidd, 563 U.S. at 742.
the "heavy, two-part burden" necessary to overcome
a qualified-immunity defense, plaintiffs must allege facts
sufficient to show a constitutional violation, and those
facts must find support from admissible evidence in the
record. Puller, 781 F.3d at 1196 (quoting Medina
v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001));
Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015).
"[W]e construe the facts in the light most favorable to
the plaintiff as the non-movant." Quinn, 780
F.3d at 1004. But we need not make unreasonable inferences or
adopt one party's version of the facts if the record
doesn't support it. See Scott v. Harris, 550
U.S. 372, 380 (2007) ("When opposing parties tell two
different stories, one of which is blatantly contradicted by
the record, . . . a court should not adopt that version of
the facts for purposes of ruling on a motion for summary
judgment."); Llewellyn v. Allstate Home Loans,
Inc., 711 F.3d 1173, 1187 (10th Cir. 2013) ("[O]ur
summary judgment standard . . . does not require us to make
unreasonable inferences in favor of the non-moving
party.") (quoting Carney v. City & Cty. of
Denver, 534 F.3d 1269, 1276 (10th Cir. 2008)).
the Hartes allege that the Defendants violated their Fourth
Amendment rights to be secure against unreasonable searches
and seizures in three ways: (1) by submitting a perjured
affidavit to procure a search warrant that wasn't
supported by probable cause; (2) by unreasonably prolonging
the search and detention beyond the terms of the warrant; and
(3) by using excessive force in executing the search warrant.