Tenth Circuit Warns Law Abiding Tea Drinkers and Gardeners Beware You Could Be Next

Tenth Circuit Judge Carlos F. Lucero began his scathing opinion  in  Harte v. Board of Commissioners of County of Johnson, Kansas, --- F.3d ---- (2017) 2017  WL  3138494  with one of the most remarkable opening passages ever written by a Federal Circuit Court 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.”

In its per curiam decision but with each judge writing separately, the court affirmed in part and reversed in part the District Court’s granting of summary judgment and remanded the 1983 action and state law claims brought by the Harte family.  For anyone out there who agrees with current Attorney General Jeff Sessions that good public policy is to double down on the failed War on Drugs this case is a frightening and tragic example of everything wrong with that approach and the real toll it has having on perfectly law abiding citizens.

Quoting again from Judge Lucero’s separate opinion, “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.”

The facts of this case literally read like the script for a segment on Saturday Night Live and would almost be funny if the actions of law enforcement were not so inept and despicable.  The case stems from the actions of an overzealous Missouri State Highway Patrol Sergeant James Wingo and his “pet project” to make a major bust on a major indoor marijuana growing operation on April 20 or in police jargon 420, a date that supporters of legalizing marijuana have traditionally held celebrations nationwide.  To achieve this end Sgt. Wingo had spent the better half of a year surveilling local indoor gardening stores taking detailed notes on everyone patronizing the store, from the license plate of their vehicles, the age and sex of the customers and the list of totally legal products they purchased.  Unfortunately for Robert Harte, a stay at home dad, chose this time frame to start an educational project with his 13-year-old son and grow tomatoes and other vegetables in their basement.

A series of bad decisions, bad police work and downright illegal conduct by Wingo and his comedy troup the Johnson County Sheriff’s Office (“JCSO) culminated with “Operation Constant Gardener,” which was the publicity stunt that Judge Lucero referred to.  From the questionable probable cause for the search warrant (based in part on supposed false positive test of tea leaves in the Harte’s garbage as marijuana), the over the top militarized execution of that warrant and the actions of law enforcement in prolonging the unsuccessful search warrant by more than 2 ½ hours wherein law enforcement illegally expanded the scope of the search to try and gather evidence of any kind of legality so they could save face, all the time holding the Harte family, including children at gunpoint, perhaps the most egregious part of this whole fiasco was that despite the raid on the Harte’s residence did not find any illegality let alone a major grow operation, the list of law enforcement missteps and bad judgment was long.
Again quoting Judge Luceros's opinion:

"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."

Perhaps the worst decision that law enforcement made from the public’s perception was that the Sheriff and others went ahead with a prepackaged phony press conference replete with props showing nonexistent marijuana plants and firearms purportedly seized.  See local tv news coverage below.
The judges almost seemed apologetic that they had to affirm official immunity for some of the law enforcement agents in this Keystone Cops caper.  For anyone who is concerned over the U.S. Attorney General’s agenda in reviving the War on Drugs and mass incarceration approach to law enforcement this case stands as a stark reminder to its futility and the real threat it poses to the constitutional rights of all American citizens.

Operation Constant Gardener sweep nets drugs, guns, stolen property

OLATHE, KS (KCTV) -
Several agencies across Kansas and Missouri took part in a sweep Friday, serving warrants and seizing marijuana as part of the second annual Operation Constant Gardener.
There are several stories on the significance of 4/20, April 20, in the marijuana counter-culture, but it has become a sort of unofficial holiday for the drug, and those who partake. Friday, several law enforcement agencies decided to celebrate too, with Operation Constant Gardner part two.
The campaign is an effort involving the Johnson and Cass County Sheriff's Offices, the Shawnee and Olathe Police Departments, as well as the Missouri Highway Patrol. Ten warrants on indoor growers were served and, so far, they netted 43 plants, one pound of processed marijuana, four guns, a stolen trailer and ATV, smoking and growing paraphernalia and $13,000 in cash. Additionally, officers also confiscated methamphetamines.
Johnson County Sheriff Frank Denning said the combination of marijuana and meth is becoming more prevalent.
"Marijuana is linked to these other crimes - you're seeing stolen weapons, you're seeing stolen property. We're seeing some other crimes that are associated with personal violence that occurs with it so marijuana may not be on everybody's radar but certainly from our crime lab's statistics, there's certainly a lot of it and it is illegal," he said.
Friday's operation is still ongoing so the confiscation numbers currently reported could go up.