Sunday, July 30, 2017

Law-abiding tea drinkers and gardeners beware . . .

So begins Judge Lucero's opinion in Harte v. Johnson County Board Comm'rs, a 100-page civil-rights plurality decision from the Tenth Circuit last week.

The Harte family (mom,* dad,* and two children) became "suspects" on a list of potential marijuana growers because dad and his two kids once visited a hydroponic garden store. Seven months after the garden-store visit, Johnson County officers claimed that two trash pulls from the Harte home yielded wet green vegetation** that allegedly field-tested positive for marijuana. The officers elected not to confirm these results with laboratory tests. In a hurry to meet their deadline for a drug-prosecution publicity stunt,*** they got a search warrant and executed a seven-man, two-plus-hours SWAT-style raid on the Harte family home.

Read about the raid for yourselves on pages 8-9 of Judge Lucero's opinion. It was intense. And the big find? Nothing but tomato plants.

The Hartes sued, asserting Fourth Amendment violations. The district court granted the defendants summary judgment on all claims, and the Hartes appealed. The Tenth Circuit sent the case back for further proceedings.

Some highlights:

Judge Lucero found the SWAT style raid to be excessive force and thus an unreasonable execution of the search warrant at pages 14-19/Lucero. Judge Phillips agreed. Page 50/Phillips. (They disagreed about whether the law on this issue is clearly established.)

Judge Phillips found insufficient allegations for the Hartes to proceed with their Franks claim that the Johnson County Officers lied about the field tests in their search-warrant affidavit. Judges Lucero and Moritz disagreed, finding that the Hartes had made the required "substantial showing" to proceed on at least part of their Franks claim. Pages 11-13/Lucero; Pages 3-8/Moritz.

Judge Phillips found that the search warrant was supported by probable cause, but that "what the deputies learned early on in the search dissipated any probable cause to continue searching." Page 34/Phillips. Judge Lucero agreed (though he would not have found probable cause in the first place). Page 14/Lucero. (Again, they disagreed about whether the law of dissipated probable cause is clearly established.) Dissipated probable cause is a theme we've seen before in the Tenth Circuit, here and here. Take heed. This is an issue not to be overlooked in suppression litigation.

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*Oops, ex-CIA employees with the highest security-level clearance and no criminal records. And Mrs. Harte an attorney. Which Johnson County never bothered to find out before raiding their home.

**Double oops. Actually Teavana tea leaves.

***Judge Lucero: "This is too rich for fiction."

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