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Harte v. Board of Commissioners of County of Johnson

United States Court of Appeals, Tenth Circuit

October 4, 2019

ADLYNN K. HARTE; ROBERT W. HARTE; J.H., a minor, by and through his parents and next friends, Adlynn K. Harte and Robert W. Harte; L.H., a minor, by and through her parents and next friends, Adlynn K. Harte and Robert W. Harte, Plaintiffs-Appellants,
v.
THE BOARD OF COMMISSIONERS OF THE COUNTY OF JOHNSON, KANSAS; FRANK DENNING; MARK BURNS; EDWARD BLAKE; MICHAEL PFANNENSTIEL; JAMES COSSAIRT; LARRY SHOOP; LUCKY SMITH; CHRISTOPHER FARKES; THOMAS REDDIN; TYSON KILBEY; LAURA VRABAC, Defendants-Appellees,

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

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

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

          Before LUCERO, HARTZ, and CARSON, Circuit Judges.

          CARSON, CIRCUIT JUDGE.

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

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

         I.

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

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

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

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

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

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

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

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

         A year and a half later Plaintiffs sued Defendants. Count I of Plaintiffs' operative complaint challenged the search warrant under Franks v. Delaware, 438 U.S. 154, 171-72 (1978), which held if substantial evidence exists to support deliberate falsehood or reckless disregard for the truth, and the exclusion of false statements would undermine the existence of probable cause, a warrant is invalid. Specifically, Plaintiffs asserted: (1) the deputies lied about the results of the field tests they performed on the wet vegetation they found in the trash; (2) the deputies misinterpreted the test results of the vegetation, construing negative results as positive; and (3) assuming that the deputies actually received positive results, they recklessly disregarded the truth-that the vegetation was tea-by relying solely on inaccurate field tests and failing to conduct a thorough investigation.[1]

         Count II alleged that the deputies unreasonably executed the search warrant in violation of the Fourth and Fourteenth Amendments. Specifically, Count II raised the following issues: (1) whether Defendants properly executed the warrant, (2) whether probable cause dissipated after the deputies found and tested the hydroponic tomato garden, (3) whether the deputies exceeded the scope of the warrant by searching for evidence of general criminal activity, and (4) whether the deputies unreasonably prolonged Plaintiffs' detention.[2]

         Like the first two claims, Plaintiff brought Count III pursuant to 42 U.S.C. § 1983, alleging that law enforcement used excessive force in violation of the Fourth and Fourteenth Amendments. Plaintiffs also brought a claim for municipal liability under Monell v. Department of Social Services, 436 U.S. 658 (1978). Finally, Plaintiffs asserted state-law claims against Defendants for trespass, assault, false arrest and imprisonment, abuse of process, intentional infliction of emotional distress, and false light invasion of privacy.

         In December 2015, the district court granted summary judgment on all claims, concluding that: (1) Plaintiffs did not show that the warrant lacked probable cause and, thus, Defendants' search of Plaintiffs' residence was lawful and no constitutional violation occurred; (2) even assuming that probable cause dissipated at some point during the deputies' search of Plaintiffs' residence, Defendants did not violate clearly established law; (3) Defendants' use of force on the scene was objectively reasonable and not excessive; and (4) because no underlying constitutional violation by any individual was present, Plaintiffs' Monell and state-law claims failed because the warrant entitled Defendants to enter the home, search it, and detain Plaintiffs during the search.

         Plaintiffs appealed to this Court. Harte v. Bd. of Comm'rs of the Cty. of Johnson, Kan., 864 F.3d 1154');">864 F.3d 1154 (10th Cir. 2017) ("Harte I"). We issued a per curiam opinion in Harte I, with which two judges concurred. We reached the following disposition of the claims:

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.

Id. at 1158.

         This per curiam opinion resulted from the panel-Judge Lucero, Judge Phillips, and Judge Moritz-issuing three separate opinions.

         A. Judge Lucero's Opinion

         Judge Lucero first concluded as to Count I-Plaintiffs' challenge to the search warrant under Franks-that the record evidence created a triable issue of fact as to whether Deputies Burns and Blake lied about having conducted the field tests on Plaintiffs' trash, or about having obtained positive results for THC. Id. at 1162. After analyzing the record evidence, Judge Lucero stated that the facts, when viewed together, were sufficient to permit a conclusion that the officers fabricated the positive field tests and that the district court erred in granting summary judgment on Count I. Id. at 1163.

         Regarding Count II-Plaintiffs' claims for unreasonable execution of the search warrant-Judge Lucero believed that the record was sufficient to support all of Plaintiffs' § 1983 claims, including their allegations of an unlawful seizure. Although Judge Lucero did not specifically mention each sub-claim for the unreasonable execution of the search warrant, he unambiguously voted to deny qualified immunity as to Plaintiffs' unlawful seizure claims. Id. at 1161-62. He stated that because a genuine dispute of material fact existed regarding the validity of the search warrant, he voted to reverse summary judgment as to Plaintiffs' unlawful seizure claim. Id. at 1163. He also stated that if the search was illegal and not supported by probable cause, then the justification for using the search as the foundation for the seizure disappeared. Id. He further stated that the deputies had no probable cause at any step of the investigation and that "[a]ny further search of the home," for whatever reason, "or detention of the Hartes" after probable cause had "dissipated . . . was a violation of the Fourth Amendment." Id. at 1164 n.5.

         As to both Count III-excessive force-and Count IV-municipal liability- Judge Lucero voted to deny qualified immunity. Finally, Judge Lucero concluded the district court inappropriately entered summary judgment on all four state-law claims.

         B. Judge Phillips' Opinion

         In contrast to Judge Lucero, Judge Phillips believed none of Count I survived. Judge Phillips believed that the record did not support Plaintiffs' claim that Deputy Burns lied in his affidavit. Id. at 1174. He said that he could not reasonably infer from the facts in the record that the officers lied about field-testing the vegetation or about the test results. Id. at 1175. Judge Phillips also concluded that Deputy Burns did not omit material information or include material misstatements in his search warrant affidavit. Id. at 1176. Because, in Judge Phillips' view, the evidence did not support Plaintiffs' claim that the deputies lied or recklessly misrepresented information in the search warrant affidavit, he concluded the search warrant complied with the Fourth Amendment. Id. at 1179. But even if it did not, Judge Phillips still could not conclude that the deputies violated clearly established law; thus concluding that the deputies were entitled to qualified immunity. Id.

         As to Count II, Judge Phillips agreed with Judge Lucero that probable cause had dissipated when the deputies had learned that Plaintiffs had not been growing marijuana. Judge Phillips also agreed that, at that point, the deputies were no longer permitted to rummage for any evidence of marijuana or drug paraphernalia and detain Plaintiffs while doing so. Id. at 1182. Specifically, Judge Phillips believed that discovering tomato plants and other vegetables in the basement dispelled any probable cause the deputies may have had that Plaintiffs were steadily harvesting and growing marijuana. Id. at 1184. He further determined that the absence of sealed or blacked-out windows, fans, ventilators, drying racks, and scales supported this. Id. Relatedly, Judge Phillips concluded that the tenuous probable cause that Plaintiffs might have used marijuana depended on their growing marijuana. Id. Thus, when the probable cause for growing marijuana dissipated, Judge Phillips reasoned, the already weak probable cause of personal use also dissipated. Accordingly, by ignoring everything they learned and rummaging for marijuana, Judge Phillips determined that the deputies violated the Fourth Amendment. Of note, he said that the deputies failed to credibly explain why they continued to search after having concluded that Plaintiffs had not been growing marijuana. Id. at 1187. He also said that the deputies could no longer search for "any kind of criminal activity" in the house. Id. With that said, even though Judge Phillips determined that the deputies violated Plaintiffs' Fourth Amendment rights by unreasonably continuing to search after probable cause had dissipated and by unreasonably extending Plaintiffs' detention, he did not believe that the deputies violated clearly established law. Id. at 1188. Accordingly, Judge Phillips would have affirmed summary judgment on Count II on that basis.

         As to Count III-Plaintiffs' excessive force claim-Judge Phillips said that the law in this area was not clearly established and voted to affirm summary judgment.

         As to Count IV-the supervisory liability claim-Judge Phillips posited that the claim lacked merit and voted to affirm the district court's entry of summary judgment.

         Finally, as to the state law claims, Judge Phillips, would have upheld summary judgment on Plaintiffs' trespass and assault claims, but reversed on Plaintiffs' intentional infliction of emotional distress and false arrest claims.

         C. Judge Moritz's Opinion

         Judge Moritz staked a position between Judge Lucero's view that Count I survived in its entirety and Judge Phillips' view that Count I failed in its entirety. Judge Moritz believed that a jury may conclude that the same pressure that caused a shoddy investigation also motivated the deputies to manufacture false test results. Id. at 1202. That evidence, in conjunction with a negative test result from the same tea leaves, created a genuine dispute of material fact as to whether the deputies lied about the field test results. Id. Judge Moritz therefore concluded that the district court erred in entering summary judgment on Plaintiffs' first Franks claim. Id. On the other hand, she concluded that Plaintiffs failed to demonstrate that the second and third Franks claims-that the deputies misinterpreted the test results of the vegetation, construing negative results as positive and assuming that the deputies actually received positive results, they recklessly disregarded the truth-were clearly established violations. Id. Judge Moritz, however, refused to consider the new Franks claim Plaintiffs asserted on appeal because Plaintiffs did not make the argument to the district court and did not request plain error review. Id. at 1199 n.2.

         Again, with respect to Count II, Judge Moritz forged a different path from her colleagues. In light of the one Franks claim surviving summary judgment, she stated that she would also conclude that Plaintiffs' wrongful search and seizure "claims" survive. Id. at 1203 (making "claims" plural, signifying more than one claim). She declined to decide whether the deputies had properly executed the warrant on appeal because she believed that the warrant was invalid under Franks. She also believed that Plaintiffs abandoned the dissipation theory on appeal but nonetheless opined that the deputies had exceeded the scope of the warrant by searching for evidence of general criminal activity.

         As to Count III-Plaintiffs' excessive force claim-Judge Moritz agreed with Judge Phillips that the law in this area was not clearly established and voted to affirm summary judgment.

         As to Count IV-the supervisory liability claim-Judge Moritz agreed with Judge Phillips that the claim lacked merit and voted to affirm the district court's entry of summary judgment.

         Finally, Judge Moritz agreed with Judge Lucero that the district court inappropriately entered summary judgment on all four state-law claims.

         D. The District Court's Actions on Remand

         On remand, the district court issued an order delineating which specific claims remained for trial. It acknowledged the Franks claim based on the limited theory that one or more of the remaining Defendants lied about the results of the field tests, which meant that the warrant was invalid and, in turn, that the resulting search and seizure was unconstitutional remained. The district court, over Plaintiffs' objections, declined to read our opinion as requiring any other federal law claim to proceed to trial. It did, however, recognize that the four state-law claims remained.

         Plaintiffs tried their case to a jury. The jury returned its verdict in favor of Defendants on all issues and claims. Specifically, the jury found that Plaintiffs failed to prove by a preponderance of the evidence that any of the Defendants who participated in obtaining the warrant lied about the results of the field tests. The jury also found that probable cause did not dissipate at any time during the search of the residence. Accordingly, pursuant to the court's instructions, the jury did not need to decide the trespass and false arrest claims. Finally, the jury found that Plaintiffs failed to prove by a preponderance of the evidence their claims of assault or outrageous conduct causing severe emotional distress against any Defendant. The district court ordered Plaintiffs to pay Defendants' costs and denied Plaintiffs' motion for a new trial.

         Plaintiffs now appeal, arguing that the district court: (1) violated the "mandate rule"-that is, the rule stating a lower court lacks the authority to deviate from the mandate issued by an appellate court-by prohibiting them from proceeding to trial on their federal search and seizure claim (Count II); (2) violated their right to an impartial jury and nondiscriminatory juror selection process by overseeing the creation of an all-white jury that contained two jurors who were biased against Plaintiffs; (3) erred by refusing to order a new trial after defense counsel had violated the district court's order by making improper and prejudicial comments that had been intended to inappropriately call into question the credibility of one of Plaintiffs' expert witnesses; (4) erred by excluding "damning emails" Defendants produced after a Defendant had waived privilege during trial; (5) erred by refusing to adhere to what Plaintiffs believe was the prior panel's majority holding that permitted Defendants to search and detain only until they learned that no marijuana-grow operation existed and refusing to enter judgment as a matter of law for Plaintiffs on their trespass and false arrest claims; and (6) erred by refusing to instruct the jury that probable cause had dissipated when Defendants had learned that Plaintiffs did not have a marijuana grow operation.[3]

         II.

         A.

         Under the law of the case doctrine, "once a court decides an issue, the same issue may not be relitigated in subsequent proceedings in the same case." Ute Indian Tribe of the Uintah & Ouray Reservation v. Utah, 114 F.3d 1513, 1520 (10th Cir. 1997). The "mandate rule," an important corollary of the law of the case doctrine, "provides that a district court must comply strictly with the mandate rendered by the reviewing court." Id. (internal quotation marks omitted). The mandate rule "generally requires trial court conformity with the articulated appellate remand." United States v. Shipp, 644 F.3d 1126, 1129 (10th Cir. 2011) (internal quotation marks omitted). "Interpretation of the mandate is an issue of law that we review de novo." Id.

         We recognize that the district court faced the unenviable task of analyzing three separate opinions on remand. Although none of these individual opinions carries binding precedential effect, our per curiam "mandate" had the concurrence of two judges and is therefore the law of the case. See AUSA Life Ins. Co. v. Ernst & Young, 39 Fed.Appx. 667, 669 (2d Cir. 2002) (cited for persuasive value only); cf. Marks v. United States, 430 U.S. 188, 193 (1977) ("When a fragmented [Supreme] Court decides a case and no single rationale explaining the result enjoys the assent of [a majority], 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds.'" (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion of Stewart, Powell, and Stevens, JJ.))). The per curiam portion of the opinion, however, has generated strong debate and disagreement among Plaintiffs, Defendants, and the district court.

         The parties agree as to the scope of the mandate regarding Counts I, III, IV, and the supplemental state-law claims. Plaintiffs and Defendants agree that as to Count I, which challenged the validity of the warrant, the per curiam opinion allowed only the Plaintiffs' first argument to proceed to trial-that the deputies lied about the results of the field tests they performed on the wet vegetation they found in the trash. As to Count III-Plaintiffs' excessive force claim-Plaintiffs and Defendants agree that we held this area of law was not clearly established. As to Count IV-the supervisory liability claim- Plaintiffs and Defendants agree that we held Plaintiffs' claim lacked merit. Regarding the state-law claims, Plaintiffs and Defendants agree that we concluded the district court inappropriately entered summary judgment on all four claims.

         The disagreement and confusion revolve around Count II. Plaintiffs contend the district court violated the mandate rule by prohibiting them from proceeding to trial on Count II-their federal search and seizure claims. Defendants respond that the district court complied with the prior panel's mandate because the prior panel rejected each search and seizure theory. Both Defendants and the district court believed the search and seizure claim did not survive independently of the Franks claim.

         We begin with the proposition that "only the per curiam opinion is the court's holding." McClatchy Newspapers, Inc. v. NLRB, 131 F.3d 1026, 1029 (D.C. Cir. 1997). Indeed, where only one judge endorses a theory, that theory "cannot be viewed as the rationale of the court." United States v. Sariles, 645 F.3d 315, 318 (5th Cir. 2011) (quoting United States v. Duggan, 743 F.2d 59, 84 (2d Cir. 1984)); see also Int'l Union of Operating Eng'rs, Local 139, AFL-CIO v. J.H. Findorff & Son, Inc., 393 F.3d 742, 747 (7th Cir. 2004) ("the three members of the panel wrote separately, and none spoke for a majority").

         In the analogous context of a fragmented Supreme Court decision where five Justices do not assent to a single rationale, "the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds."[4] Large v. Fremont Cty., Wyo., 670 F.3d 1133 (10th Cir. 2012) (quoting Marks, 430 U.S. at 193). We have held that "[i]n practice, however, the Marks rule produces a determinative holding only when one opinion is a logical subset of other, broader opinions." Id. (quoting United States v. Carrizales-Toledo, 454 F.3d 1142, 1151 (10th Cir. 2006)) (internal quotation marks omitted). So, "for example, one inquiry under Marks might be whether the concurrence posits a narrow test to which the plurality must necessarily agree as a logical consequence of its own, broader position." Id. (internal quotation marks omitted). "When, however, one opinion supporting the judgment does not fit entirely within a broader circle drawn by others, Marks is problematic." Id. Thus, "[w]e do not apply Marks when the various opinions supporting the Court's decision are mutually exclusive." Id.; see also Ass'n of Bituminous Contractors, Inc. v. Apfel, 156 F.3d 1246, 1253-54 (D.C. Cir. 1998) (providing that the rule that "the opinion of the Justices concurring in the judgment on the 'narrowest grounds' is to be regarded as the Court's holding, does not apply unless the narrowest opinion represents a common denominator of the Court's reasoning and embodies a position implicitly approved by at least five Justices who support the judgment" (internal quotation marks and brackets omitted)).

         In interpreting the prior panel's holding as to Count II, we look to the language of the per curiam opinion. The per curiam opinion reversed the district court's grant of summary judgment on the unlawful search and seizure claims. The judges did not delineate the four issues Plaintiff raised in Count II. Accordingly, Plaintiffs argue that the prior panel intended for Count II to proceed in its entirety while Defendants contend the individual opinions foreclose that argument.

         Plaintiffs' first theory- whether Defendants properly executed the warrant- is tied to the Franks claim contained in Count I. Judge Lucero stated that because a genuine dispute of fact existed regarding the validity of the search warrant, the Court also had to reverse the unlawful seizure claim. Judge Moritz reasoned that because she would hold that the warrant was invalid under Franks, she would decline to decide whether the deputies properly ...


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