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Harte v. The Board of Commissioners of County of Johnson

United States Court of Appeals, Tenth Circuit

July 25, 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,
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.

         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.

          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 (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 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.



         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.[1]

         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.[2]


         We 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).

         The 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.[3]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.


         The 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.

         The 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.

         Furthermore, 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.

         Defendants 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 date.

         Viewed 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 summary judgment.[4]


         Because 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 stop.[5]


         The 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).[6] 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 the intrusion."

Id. (quoting Garner, 471 U.S. at 8).

         Applying 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.

         None of 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.[7] 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 entry.[8]

         Defendants 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, [9] defendants' use of a SWAT-style raid to execute the search in this instance was plainly unreasonable.[10]

         Although 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.

         In 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).

         It is 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 crime scene).


         The 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.

         The 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.[11] 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 (1997).

         The 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))).

         At oral 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.

         By 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.


         "[T]he 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.

         The 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 Harte.

         How did a quiet, Kansas family with two young children find itself enmeshed in one Kansas county's "4/20" crackdown on marijuana-grow operations?[1] 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.

         Early 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 tea.

         Asserting 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.


         I. Operation Constant Gardener

         In 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.[2]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.

         About a 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.

         II. The Investigation

         One 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.

         Once 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.

         A week 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.[3]

         A week 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.

         Deputy 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 affidavit.

         III. The Search

         Lieutenant Mike Pfannenstiel assigned seven deputies to execute the search warrant at the Hartes' house.[4] 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.[5] 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.

         As one 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).[6] 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.

         The 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.

         IV. The Aftermath

         That 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 false-positive results.

         The 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." Id.

         The 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.

         Using 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 marijuana.

         While 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.

         V. The District Court Case

         In November 2013, asserting claims under 42 U.S.C. § 1983, the Hartes sued Johnson County, Sheriff Denning, Trooper Wingo, [7] 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.

         In 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 search.


         I. Standard of Review

         We 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).

         A 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.

         To meet 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)).

         Here, 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. I ...

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