Harte v. Board Comm'rs Cnty of Johnson , 864 F.3d 1154 ( 2017 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS July 25, 2017
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
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,
No. 16-3014
v.
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
_________________________________
2
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
3
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.
I
A
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.
4
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
5
press conference to celebrate the success of their operation. The pressure was on for
JCSO officers to find probable cause by April 20.
B
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’
6
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 pre-
planned 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.
C
7
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
8
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
II
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
1
In his deposition, James Cossairt claims that he remembers asking the Hartes if
they needed to take the kids to school. However, multiple pieces of evidence indicate
that no one was free to leave.
2
Although I have provided a separate recitation of the facts, I adopt in general the
facts and procedural history set forth in Judge Phillips’ opinion. See Phillips’ Op. 2-11.
9
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.
A
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
3
The Hartes also brought claims against Wingo for his role in the events leading
to the search of their home. I join in the resolution of those claims as presented in Judge
Phillips’ opinion. See Phillips Op. 10 n.7.
10
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.
11
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.
12
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
B
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
4
I join Part I.A of Judge Moritz’s opinion in full. See Moritz Op. 3-8. And in
light of our reversal on the Franks claim, I also join Part II.A, reversing summary
judgment on the four state-law claims briefed on appeal. See Moritz Op. 12.
13
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
C
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
5
Part II.B.1 of Judge Phillips’ opinion concludes that the officers violated the
Hartes’ Fourth Amendment rights by continuing to detain the Hartes and search their
home after probable cause had dissipated. See Phillips Op. 30-43. Assuming the officers
had probable cause to begin with—a point on which I firmly disagree—I concur that it
dissipated the moment the officers knew they would not find a marijuana grow operation.
Any further search of the home, or detention of the Hartes, was a violation of the Fourth
Amendment. Accordingly, I join in full Part II.B.1 of Judge Phillips’ opinion.
14
(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
6
Despite the extreme nature of SWAT-style raids, their use in the execution of
run-of-the-mill search warrants has risen at an alarming rate. Police paramilitary
deployments increased more than 1,400% between 1980 and 2000, with an estimated
45,000 SWAT-team deployments conducted annually as of 2007. Peter B. Kraska,
Militarization and Policing—Its Relevance to 21st Century Police, 1 Policing 501, 507
(2007). Unlike the traditional use of SWAT teams for high-risk, dangerous events such
as hostage, sniper, or terrorist situations, over 80% of the deployments in recent years
have been for drug-related crimes. Id.
Although the parties agree that defendants did not use a formal “SWAT” team in
executing the search warrant, the district court found that the evidence, viewed in a light
most favorable to plaintiffs, permitted a conclusion that the officers executing the search
warrant constituted a “special unit or team” rather than an ordinary group of patrol
officers. Moreover, defendants do not explain why there is any meaningful difference
between a formal SWAT team and a SWAT-style or “tactical” team for purposes of an
excessive force analysis.
15
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
7
That firearms were ultimately found during the search of the Hartes’ home—
carefully secured in a safe—is not relevant because that fact was not relied upon as a
justification for the use of force.
8
Although the officers in Holland also knew children might be present when the
raid was conducted, they believed the raid was likely to be very dangerous given that
both the property owner and other individuals residing on the compound had violent
histories. They had legitimate reason to be concerned about the children’s safety during
execution of the raid. See 268 F.3d at 1190-91. In contrast, defendants in this case did
not consider the raid to be a high-risk entry and have never suggested concern for the
children as a justification for deploying a SWAT-style team of officers.
16
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
9
The district court and defendants’ reliance on Whitewater v. Goss, 192 F. App’x
794 (10th Cir. 2006), is misplaced. As an initial matter, it is an unpublished order and
judgment with no precedential value, and it has never been endorsed or cited by this
court. More importantly, the court’s analysis in that case addressed only a municipal-
liability claim asserted against the sheriff for her role in deciding to deploy a SWAT
team; the Hartes assert no such claim. See id. at 797-98. Finally, to the extent the
17
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
majority opinion in Whitewater purports to qualify the Holland balancing test, it does so
in plain contradiction to the text of Holland and must be disregarded as erroneous. See
id. at 799-801 (Lucero, J., dissenting).
10
I additionally join Part II.C.1 of Judge Phillips’ opinion finding a constitutional
violation on this issue. See Phillips Op. 49-53.
18
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).
D
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
19
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)
11
Moreover, following a similar raid on a tomato-grower in 2011, the JCSO was
on notice that Wingo’s garden-store tips could lead to the targeting of law-abiding
citizens.
20
(“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.
21
III
“[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.
22
16-3014, Harte, et al. v. Board of Commissioners of the County of Johnson, et al.
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
1
“4/20” refers to April 20, a date commonly associated with marijuana. See
Appellant’s App. at A612–13.
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.
BACKGROUND
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
2
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
2
Police and marijuana enthusiasts alike debate how and why April 20 became
affiliated with marijuana use, a practice that began as early as 1971. See Olivia B.
Waxman, Here’s the Real Reason We Associate 420 With Weed, Time (Apr. 19,
2016), http://time.com/4292844/420-april-20-marijuana-pot-holiday-history/.
According to Time Magazine, “420” became code for marijuana because five
students in California regularly gathered after school—at 4:20 p.m.—to smoke the
drug. Id. To evade detection, they referred to their after-school activity simply as
“420.” Id. From there, members and followers of the band The Grateful Dead helped
popularize and spread the term as code for marijuana, and encouraged users to
partake in it on April 20 at 4:20 p.m. Id.
3
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
4
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.”
3
The Sheriff’s Office used a Lynn Peavey field-test kit that used KN
reagents—or fast blue B salt—to test for the presence of THC.
5
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.
4
The team consisted of Sergeant James Cossairt, Deputies Edward Blake,
Larry Shoop, Christopher Farkes, Laura Vrabac, and Tyson Kilbey, and Detective
Lucky Smith. The Hartes refer to all of the defendants as deputies except for Trooper
Wingo and Sheriff Denning, so in this opinion I refer to the team that executed the
warrant and all individual defendants on appeal as “the deputies.”
5
Many of the neighbors were also home. One neighbor, Lisa Jameson, saw the
deputies approach the Hartes’ house with guns drawn and watched as they entered
the house. She was frightened, and said that after the search, Mr. Harte seemed very
shaken up and humiliated.
6
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
6
In her affidavit, Lisa Jameson also stated that she approached a deputy and
asked him if she could take the Hartes’ children to school. The deputy reportedly said
no, and told her that the children were fine.
7
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
8
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
9
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
7
The Hartes’ claims against Trooper Wingo related to his role in the events
that led to the Sheriff’s Office’s search of the Hartes’ house. Because he played no
role in the execution of the warrant, the Hartes excluded him from their excessive-
force claim. Trooper Wingo filed a separate summary-judgment motion, which the
district court ultimately granted. Though the district court analyzed the claims against
Trooper Wingo together with the claims against the other officials, it observed that
“[i]n the absence of an underlying constitutional violation, [the Hartes’] claims
against any individual (such as defendants Denning and Wingo) who is alleged to
have supervised, directed or set in motion the constitutional violation necessarily
fail.” Harte v. Bd. of Comm’rs of the Cty. of Johnson Cty., 151 F. Supp. 3d 1168,
1186 n.9 (D. Kan. 2015). Because the Hartes didn’t specifically appeal this decision,
and because Trooper Wingo wasn’t involved in the search of the Hartes’ house and
didn’t supervise any of the deputies who conducted the search, I would leave in place
the district court’s grant of Trooper Wingo’s summary-judgment motion.
10
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.
DISCUSSION
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
11
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.
12
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 address these three claims first and then turn to the Monell claim. Finally, I
consider the Hartes’ state-law claims.
II. Fourth Amendment § 1983 Claims
A. Invalid Search Warrant
13
The Hartes challenge the search warrant on several grounds. Specifically, they
allege that probable cause didn’t support the search warrant, because Deputy Burns’s
search-warrant affidavit contained material misstatements and omissions. On this
point, they dispute the district court’s conclusion that Deputies Burns and Blake had
in fact obtained two positive field-test results on the tea leaves taken from the outside
trash. The Hartes contend that the deputies (1) lied about whether they field-tested
the vegetation from the Hartes’ trash at all, (2) lied about the results, or (3)
misinterpreted the results or incorrectly used the field test. And, they say, “the
summary-judgment record is . . . most consistent with lying.” Appellant’s Opening
Br. at 29. But I disagree with these bases.
1. Constitutional Violation
A search warrant generally establishes probable cause unless it “was based on
an affidavit so lacking in indicia of probable cause as to render official belief in its
existence entirely unreasonable,” Stonecipher v. Valles, 759 F.3d 1134, 1142 (10th
Cir. 2014) (quoting Messerschmidt v. Millender, 565 U.S. 535, 547 (2012)), or unless
the affiant has misrepresented or omitted material facts to the judge issuing the
warrant, id. “This test is . . . objective . . . : when there is no dispute over the material
facts, a court may determine as a matter of law whether a reasonable officer would
have found probable cause under the circumstances.” Id. To overcome the validity of
the search warrant, the Hartes must present evidence either that the deputies knew
that the information in the search-warrant affidavit was false or “that the [deputies]
‘in fact entertained serious doubts as to the truth of [their] allegations,’” but still
14
sought a search warrant in reckless disregard for the truth. Beard v. City of
Northglenn, 24 F.3d 110, 114, 116 (10th Cir. 1994) (quoting United States v.
Williams, 737 F.2d 594, 602 (7th Cir. 1984)). “[A] factfinder may infer reckless
disregard from circumstances evincing obvious reasons to doubt the veracity of the
allegations.” Id. (quoting Williams, 737 F.2d at 602).
The Hartes also challenged the search warrant under Franks v. Delaware, 438
U.S. 154 (1978). Under Franks, we presume that the affidavit supporting a search
warrant is valid. Franks, 438 U.S. at 171–72. Only intentional and knowingly false
statements in a search-warrant affidavit, or statements made with reckless disregard
for the truth, can undermine a finding of probable cause. Id. at 171. “[N]egligence or
innocent mistake[s] are insufficient” to challenge a warrant affidavit’s validity. Id.
a. The Wet Vegetation
In my view, the record doesn’t support the Hartes’ claim that Deputy Burns
lied in his affidavit. The Hartes rely heavily on the lack of photographic or
documentary evidence of the field-test results. They find it suspicious that Deputy
Burns took no photos of the field-test results despite it being his general practice to
do so, and that Deputy Blake took photos of the trash but not the tea leaves or the
field-test results. They also point out that even though Deputy Burns was a trained K-
9 officer, he made no effort to have his dog sniff the tea leaves. Finally, the Hartes
observe that both the lab technician and their own expert said that the tea leaves
looked nothing like marijuana, meaning that the deputies must have known that the
leaves weren’t marijuana even before they field tested them.
15
I can’t reasonably infer from these facts that the officers lied about field-
testing the suspected marijuana or about the test results. Accepting the Hartes’
version of the facts as true doesn’t require ignoring additional evidence presented by
the deputies, because the deputies’ evidence supplements rather than conflicts with
the Hartes’ evidence. The two parties simply ask us to reach different inferences
based on the same set of facts. But, in my view, to infer from the Hartes’ evidence
that the deputies lied would require an unreasonable inference based on little more
than speculation. See Llewellyn, 711 F.3d at 1187.
Deputy Burns testified that he generally photographs field-test results when
he’s “on the side of a road and do[ing] a field test kit in order to make an arrest,” or
when he is using a field-test kit “as part of my probable cause for an arrest.”
Appellant’s App. at A546. But almost immediately after this, he said that he didn’t
photograph the field-test results from the Hartes’ tea leaves because “[i]t wasn’t part
of our normal practice to take pictures of [field tests] during the trash pulls.” Id.
Deputy Blake testified that he typically takes pictures of trash pulls when it would be
impractical to keep the relevant trash as evidence, for example, if it might “spoil or
mold.” Id. at A563. And Deputy Blake correctly believed that the Sheriff’s Office
could preserve the green vegetation from the trash—in fact, the crime lab
successfully tested the tea leaves four months later.
According to Deputy Blake, he took pictures of paperwork in the Hartes’ trash
to link the trash to the Harte family and address, but didn’t take any pictures of the
field test because, just as Deputy Burns said, “[i]t wasn’t a common practice at that
16
time.” Id. at A564. This testimony doesn’t support an inference that the agents lied
about the tests or misrepresented them. Though I agree with the Hartes that the
deputies could have photographed the field-test results, the evidence doesn’t require
the inference that the deputies lied. See Cardoso v. Calbone, 490 F.3d 1194, 1197
(10th Cir. 2007) (“[E]vidence, including testimony, must be based on more than mere
speculation, conjecture, or surmise. Unsubstantiated allegations carry no probative
weight in summary judgment proceedings.” (quoting Self v. Crum, 439 F.3d 1227,
1230 (10th Cir. 2006))).
Nor do I think it matters much that Deputy Burns didn’t have his drug dog
sniff the supposed marijuana from the trash. He explained that the overwhelming
smell of the trash would have impeded the dog in detecting any marijuana-related
odor. And he also expressed concern that the wet vegetation might have “some kind
of chemical that wouldn’t be safe” to sniff. Appellant’s App. at A549. Deputy Burns
testified that though he ordinarily uses his dog to help build probable cause for a
search warrant, he didn’t need a search warrant for the Hartes’ outside trash. So in
my view, Deputy Burns’s failure to use his drug dog to sniff the Hartes’ trash doesn’t
support the Hartes’ allegation that the deputies lied about the positive field-test
results.
According to the Hartes, the deputies also recklessly failed to heed other
warning signs. They say that multiple people confirmed that the wet vegetation didn’t
look or smell like marijuana, and that the vegetation contained bits of flowers and
17
fruit.8 But the deputies found the clumped tea leaves in the trash containing other
discarded food, and they smelled only trash when they found the leaves. So the
absence of the smell of marijuana, when combined with the surrounding
circumstances of the trash pull, doesn’t require an inference that the deputies knew or
should have known that the wet vegetation was not processed marijuana.
In addition, the deputies had other reasons to believe that the vegetation was
marijuana. Deputy Burns testified that when he unrolled some leaves, he saw
serrated-leaf edges, and saw stems consistent with marijuana stems. Deputy Burns
further said that in his experience, the saturated vegetation looked like marijuana that
had been processed to extract the THC. Processed marijuana looks similar to brewed
tea leaves, so even a trained eye could mistake one for the other when the material is
mixed in with other trash. See Appellee Sheriff’s Office’s Response Br. at 5–6
(comparing photographs of processed marijuana with photographs of brewed tea
leaves). Finally, Deputy Burns testified that he had never before seen loose-leaf tea. I
conclude that it would be unreasonable after viewing all the evidence to infer that the
deputies knew or suspected that the wet vegetation was not marijuana. See Llewellyn,
711 F.3d at 1187.
In fact, the record lends support to Deputy Burns’s claims set forth in the
search-warrant affidavit. As the district court observed, a Johnson County crime-lab
8
The Hartes’ expert tested four types of Teavana-brand tea, each of which
Mrs. Harte said she had purchased in the spring of 2012. The expert confirmed that
each of these teas contained flower buds and petals, as well as pieces of fruit, and
concluded that they looked like potpourri rather than marijuana.
18
technician tested the tea leaves four months after the deputies did and received false
positives on both samples. The Hartes acknowledge that the Lynn Peavey KN-reagent
test often yields false positives, supporting the deputies’ claims that they did obtain
false positives. Appellant’s Opening Br. at 39 (“Readily available sources would
have suggested to the deputies that their ‘test’ yielded a false-positive rate around
70%, especially with kitchen botanicals.” (emphasis in original)). And the Hartes’
own expert obtained a false positive when field-testing samples of the same kind and
brand of brewed tea leaves that Mrs. Harte thought she had brewed and later tossed in
the trash.9
b. Statements About the Field Tests
Similarly, Deputy Burns didn’t omit material information or include material
misstatements in his search-warrant affidavit. “The standards of deliberate falsehood
and reckless disregard set forth in Franks apply to material omissions, as well as
affirmative falsehoods.” United States v. Avery, 295 F.3d 1158, 1166 (10th Cir. 2002)
9
As Judge Moritz points out, the Hartes’ expert also tested the actual green
vegetation that the deputies had found in the Hartes’ trash, and the material tested
negative for marijuana. See Moritz. Op. 5. In light of the field test’s rate of false
positives and the Hartes’ claims that the field test is often inaccurate, I am
unconvinced that the expert’s accurate test result from three years after the initial
test is enough to support the Hartes’ claim that the deputies lied about obtaining
positive test results.
In my view, the field test is always generally inaccurate. Even the Hartes state
that the KN-reagent field test yields false positives about 70% of the time. Therefore,
the most reasonable inference is that the deputies and the crime lab technician
obtained false-positive test results for their KN-reagent tests—they were the 70%—
and the Hartes’ expert obtained accurate negative test results for his KN-reagent
tests—he was the 30%.
19
(emphasis added) (quoting United States v. McKissick, 204 F.3d 1282, 1297 (10th
Cir. 2000)). And omissions, like misstatements, are material if the omitted
information is so probative that it negates probable cause. Stewart v. Donges, 915
F.2d 572, 582 n.13 (10th Cir. 1990).
The Hartes claim that the deputies recklessly misstated that the KN-reagent
field test is similar to the test used by the Johnson County crime lab, and that the
deputies recklessly disregarded a warning instruction that the field test wouldn’t
provide probable cause. They also claim that Deputy Burns recklessly omitted from
his search-warrant affidavit that he had found the vegetation in the kitchen trash, that
the vegetation was hard to identify and didn’t smell like marijuana, and that no one
had sent the vegetation to the crime lab. These arguments similarly fail to create a
genuine dispute of material fact that the deputies lied or recklessly disregarded the
truth.
In his affidavit, Deputy Burns stated that “[t]he field test utilized by Deputy
Blake consists of reagents similar to those utilized by the Johnson County
Criminalistics Laboratory to conduct its initial screening test for marijuana. This test
is presumptive but not conclusive for the presence of marijuana.” Appellant’s App. at
A709. Even if this is “boilerplate” language that Deputy Burns included “in all his
drug affidavits at the urging of [an] Assistant District Attorney,” it still
communicates that the field-test results weren’t conclusive. Appellant’s Opening Br.
at 14; Appellant’s App. at A551–52. And Johnson County’s crime-lab technician
confirmed that the lab used KN-reagent-based tests to test for the presence of
20
marijuana. Further, by Kansas law, KN-reagent field tests are acceptable at
preliminary hearings to “establish probable cause to believe that the tested substance
is the controlled substance alleged.” Kan. Stat. Ann. § 22-2902c; see also Kan.
Admin. Regs. § 10-22-1(b)(6) (listing the Fast Blue or BB reagents, which are
different names for the KN-reagent, as acceptable field tests).
I also find it significant that Deputy Burns testified that he wasn’t aware of the
possible occurrence of false positives. So, though Deputy Burns didn’t explicitly say
that the field test is often inaccurate—because he didn’t think the test was inaccurate
at all—he sufficiently advised the state judge that the field test wasn’t conclusive.
Probable cause for a search warrant depends on the facts known to law-enforcement
officers when they obtain the search warrant. See Buck v. City of Albuquerque, 549
F.3d 1269, 1281 (10th Cir. 2008); Molina ex rel. Molina v. Cooper, 325 F.3d 963,
971 (7th Cir. 2003) (false positive field-test results didn’t undermine probable cause
where unreliability of field tests was determined only after the warrant issued and no
evidence suggested the officer had thought the field tests were unreliable when he
applied for the warrant).
Nor is it problematic that Deputy Burns’s affidavit didn’t mention that the
deputies had found the vegetation in a bag containing the kitchen trash, that it hadn’t
smelled like marijuana, or that it was hard to identify. In light of the two false-
positive test results, I don’t believe that this information would have altered the state
judge’s decision to issue the search warrant. The same is true of Deputy Burns’s
failure to mention that no one had sent the wet vegetation to the crime lab for testing.
21
Although he and Deputy Blake would have done better to take this step, they did at
least keep the vegetation as evidence, presumably because they believed it was
marijuana.
c. Failure to Investigate Further & Unreasonable
Reliance on the Field Tests
The Hartes also fault the deputies for limiting their investigation to the three
trash pulls. The Hartes argue that a better investigation would have revealed
information suggesting that the field test results were wrong. Indeed, the deputies
seem to have done the bare minimum required to obtain a search warrant. The
deputies didn’t surveil the Hartes’ house, they didn’t investigate the Hartes’
backgrounds (and learn that both Hartes were former CIA employees) or run their
criminal histories, they didn’t send the suspicious vegetation to the crime lab, and
they didn’t inspect utility records for the house to see if the Hartes’ electric bills
showed energy consumption consistent with the suspected grow operation.
This surely isn’t top-notch policing that any law enforcement agency might
take pride in. But for purposes of qualified immunity, the deputies needed merely to
show arguable probable cause to satisfy the Fourth Amendment’s reasonableness
requirement. See Stonecipher, 759 F.3d at 1141 (“Arguable probable cause is another
way of saying that the officers’ conclusions rest on an objectively reasonable, even if
mistaken, belief that probable cause exists.”). I certainly don’t commend the officers
for their investigation, but the failure “to investigate a matter fully, to exhaust every
possible lead, interview all potential witnesses, and accumulate overwhelming
22
corroborative evidence rarely suggests a knowing or reckless disregard for the truth.”
Id. at 1142 (quoting Beard, 24 F.3d at 116).
The Hartes claim that the deputies should have followed the directions on the
test and submitted the tea leaves to the crime lab for further analysis. They argue that
field tests—the Lynn Peavey KN-reagent field test in particular—are widely known
to be inaccurate. See Amicus Curiae Marijuana Policy Project Br. at 10 (explaining
that field tests in general are difficult to read, often tainted by user error, and prone to
giving false-positive results for an array of legal substances, including vanilla extract
and household herbs and spices).
I certainly have concerns about this potential inaccuracy. Still, Kansas law
permitted the deputies to rely on the KN-reagent field tests to establish probable
cause that the vegetation was marijuana. Kan. Stat. Ann. § 22-2902c; Kan. Admin.
Regs. § 10-22-1. The law provides that “[a] positive result on a field test described in
and conducted pursuant to this subsection shall be deemed sufficient to establish
probable cause to believe that the tested substance is the controlled substance
alleged.” Kan. Stat. Ann. § 22-2902c(a)(2). And Kansas regulations specify that the
Kansas Bureau of Investigation permits law-enforcement officers to use field tests
containing “Fast Blue B or BB reagent or the salts of either reagent”—Fast Blue B
salts being another name for the KN reagent. Kan. Admin. Regs. § 10-22-1. Thus, the
deputies reasonably relied on the Lynn Peavey KN-reagent field test in applying for a
warrant.
23
Even if the deputies had mistakenly interpreted the tests as positive, this
wouldn’t have invalidated the search warrant. Negligence is insufficient to challenge
a search warrant’s validity. Franks, 438 U.S. at 171. Because the Hartes haven’t
presented evidence sufficient for a jury to find that Deputy Burns knowingly,
intentionally, or recklessly gave false statements in his warrant affidavit, I presume,
as I must, that the affidavit was valid. See id. at 156. In other words, as long as the
deputies weren’t reckless in believing that the green vegetation in the Hartes’ trash
had tested positive for marijuana, the affidavit was valid, and therefore the search
warrant was supported by probable cause.
In addition, the Hartes argue that Deputies Burns and Blake weren’t properly
trained to use the field tests. In fact, Deputy Burns confirmed that he had received no
formal training on “the actual processing of marijuana.” Appellant’s App. at A550.
But Deputy Burns had received training from the manufacturer of a field test similar
to the Lynn Peavey KN-reagent test. And both Deputies Burns and Blake were
trained in marijuana grows and drug recognition and detection. The Hartes presented
evidence that Deputy Blake had to do remedial training for field testing in December
2013, after the Sheriff’s Office changed its policies. But Deputy Blake needed this
training because he had found several tests for methamphetamine and cocaine
negative when they should have been positive.
Similarly, even if the deputies should have known that the test was inaccurate,
this would negate probable cause only if they recklessly disregarded information
suggesting as much. The Hartes point out that the field-test instructions say that
24
positive test results give probable cause only to submit a sample to a crime
laboratory, meaning that the deputies should have known better than to rely on it. But
the instructions on the box bind no one. Moreover, the instructions use the term
“probable cause” in a non-legalistic way, simply to caution testers that crime-lab
results are more reliable.
The deputies knew that Trooper Wingo had seen Mr. Harte shopping at a
hydroponic-growing store and that their trash pulls had yielded two positive field
tests of wet, green vegetation that, to them, looked like marijuana processed to
extract THC. Even though I believe that the deputies should have investigated further
before applying for a search warrant, the evidence they obtained gave them at least
arguable probable cause to believe that the Hartes were growing marijuana. Thus,
because the evidence does not support the Hartes’ claim that the deputies lied or
recklessly misrepresented information in the search-warrant affidavit, I would hold
that the search warrant itself complied with the Fourth Amendment.
2. Clearly Established Law
Even if I concluded that the deputies’ search-warrant affidavit didn’t provide
probable cause and violated the Fourth Amendment, I still couldn’t conclude that the
deputies violated clearly established law. “A clearly established right is one that is
‘sufficiently clear that every reasonable official would have understood that what he
is doing violates that right.’” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting
Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)). “[E]xisting precedent must have
placed the statutory or constitutional question beyond debate.” Id. (quoting al-Kidd,
25
563 U.S. at 741). The Supreme Court has repeatedly reminded us “not to define
clearly established law at a high level of generality.” Id. (quoting al-Kidd, 563 U.S.
at 742). We must take care to particularly define the allegedly unlawful actions and
we must conduct our qualified-immunity inquiry “in light of the specific context of
the case, not as a broad general proposition.” Id. (quoting Brosseau v. Haugen, 543
U.S. 194, 198 (2004) (per curiam)).
The Fourth Amendment in particular demands such specificity because law-
enforcement officers can have difficulty determining “how the relevant legal doctrine
. . . will apply to the factual situation the officer confronts.” Id. (quoting Saucier v.
Katz, 533 U.S. 194, 205 (2001)). Thus, in Mullenix, the Court found too general
under the Fourth Amendment the principle that “deadly force is only permissible
where the officer has probable cause to believe that the suspect poses a threat of
serious physical harm, either to the officer or to others.” Id. at 309 (quoting Haugen
v. Brosseau, 339 F.3d 857, 873 (9th Cir. 2003)). Rather, the inquiry should have been
whether the Fourth Amendment prohibited “shoot[ing] a disturbed felon, set on
avoiding capture through vehicular flight, when persons in the immediate area are at
risk from that flight.” Id. (quoting Brosseau, 543 U.S. at 199–200).
Under the second prong of the qualified-immunity analysis, the Hartes must
either “identify a case where an officer acting under similar circumstances as [the
deputies] was held to have violated the Fourth Amendment,” White v. Pauly, 137 S.
Ct. 548, 552 (2017), or, absent an on-point precedent, show that the deputies’
conduct was so egregious that any officer would know it was unconstitutional, al-
26
Kidd, 563 U.S. at 741. So the inquiry isn’t simply whether the deputies’ probable
cause would have vanished had they investigated further. Rather, we must ask
whether the deputies lacked arguable probable cause based on the facts they alleged
in the search-warrant affidavit—that the suspect had entered a hydroponic-gardening
store and left with a bag, that their trash pulls twice gave positive test results for
marijuana, and that they used a legislatively approved field test. The Hartes bear the
burden of establishing that their asserted Fourth Amendment violation was clearly
established on the day of the search. On the evidence presented, I can’t conclude that
every reasonable officer would have known that the search-warrant affidavit did not
give probable cause.
Here, the Hartes cite no cases concluding that law-enforcement officers lack
probable cause when relying on two positive field-test results for marijuana. The
Hartes challenge the reliability of the Lynn Peavey KN-reagent field test, and other
field tests in general. But no court has gone so far as to prohibit law-enforcement
officers from relying on field tests to establish probable cause. In fact, courts
regularly uphold this practice. See, e.g., Cooper, 325 F.3d at 971 (holding that police
officers had no duty to send field-tested items taken from the suspect’s trash to the
lab before applying for a warrant, because the officers didn’t discover the test’s
unreliability until after the warrant issued).
The cases the Hartes do cite provide them little help. First, Franks describes
Fourth Amendment rights too generally to support the Hartes’ challenge to the search
warrant’s validity. See Pauly, 137 S. Ct. at 552 (reiterating the longstanding principle
27
that clearly established law must not be defined too generally). Franks stands for the
proposition that parties may challenge search warrants with evidence sufficient to
show that the search-warrant affiant provided false information—either intentionally
or with reckless disregard for the truth. A person challenging a search warrant must
make[] a substantial preliminary showing that a false statement
knowingly and intentionally, or with reckless disregard for the truth,
was included by the affiant in the warrant affidavit, and if the allegedly
false statement is necessary to the finding of probable cause, the Fourth
Amendment requires that a hearing be held at the defendant’s request.
Franks, 438 U.S. at 155–56 (emphasis added). And even then, the search warrant is
legally deficient only if, after setting aside the false information, the remainder of the
affidavit fails to establish probable cause. Id. at 156. Under Franks, the Hartes
needed to present enough evidence to support their claim that the deputies had lied
about testing the wet vegetation from the trash, or recklessly disregarded the truth by
relying on false-positive test results that the loose-leaf tea was marijuana. And their
cases would have to clearly establish that the Fourth Amendment prohibited the
deputies from relying on KN-reagent or other similar field tests.
Stonecipher does no more than Franks to support the Hartes’ claim—it is so
factually distinguishable from this case that it would offer the deputies little
guidance. And, further, we found no Fourth Amendment violation there. In
Stonecipher, a federal agent investigating the Stoneciphers for illegally dealing guns
and explosives from their house learned from two separate background checks that
the husband had pleaded guilty to domestic assault in Missouri. 759 F.3d at 1139. An
Assistant United States Attorney reviewed the husband’s file and advised the agent
28
that the husband’s domestic-assault conviction made it a crime for the husband to
possess and sell firearms. Id. (citing 18 U.S.C. § 922(g)(9)). The agent then filed a
search-warrant affidavit based on this information, though he failed to note in the
warrant that the husband had received a suspended imposition of sentence for the
assault, and that his ineligibility to possess firearms was later overturned. Id. at
1139–40. The husband claimed that the search violated the Fourth Amendment
because the warrant wasn’t supported by probable cause. Id.
We held that the agents were entitled to qualified immunity despite their
omissions in the search-warrant affidavit because federal agents couldn’t be expected
to know the minutiae of state laws and federal regulations. Id. at 1143–44. Quite
simply, Stonecipher would not advise the deputies that their actions would violate
clearly established law.
The Hartes also rely on Eaton v. Lexington-Fayette Urban County
Government, 811 F.3d 819 (6th Cir. 2016), to support their claim that the deputies
lacked probable cause based on the field tests. In Eaton, a man alleged that
Kentucky’s drug-testing program violated his Fourth and Fourteenth Amendment
rights because it was unreliable. Id. at 821. The Sixth Circuit acknowledged that “an
utterly unreliable—read random—testing procedure might well violate the Fourth
Amendment.” Id. at 822. And it said that “[p]rocedures that generate results that are
not close to ‘accurate in the overwhelming majority of the cases[]’ . . . may
themselves cause testing to be unreasonable in the Fourth Amendment sense.” Id.
(quoting Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602, 632 n.10 (1989)). But the
29
court ultimately concluded that the testing at issue wasn’t unreasonable, noting that
the plaintiff hadn’t brought any probative evidence to support his claim. Id. at 820,
823–24.
The sole similarity between Eaton and this case is that they both involved drug
testing. Moreover, at the time the deputies used the Lynn Peavey KN-reagent field
test, they didn’t suspect that it was “utterly unreliable.” Id. at 822. And Eaton held
that some error in drug testing procedures isn’t enough to make them unreasonable
under the Fourth Amendment. Id. Therefore, Eaton doesn’t advance the Hartes’ claim
on this issue.
Finally, the Hartes point to Harmon v. Pollock, 446 F.3d 1069 (10th Cir.
2006), to support their claim that the Sheriff’s Office unreasonably failed to
investigate more thoroughly. But while I acknowledge that the law-enforcement
officers in Harmon more thoroughly investigated before applying for a search
warrant, Harmon didn’t rule that a less-robust investigation, as here, would have
defeated probable cause. Id. In fact, we have explicitly stated that law-enforcement
officers need not investigate every possible lead before applying for a warrant.
Stonecipher, 759 F.3d at 1142.
In sum, even if I concluded that the deputies here acted unreasonably in
procuring a warrant to search the Hartes’ house for marijuana, I couldn’t do so based
on clearly established law.
B. Unreasonable Search
1. Constitutional Violation
30
The Hartes also claim that the deputies violated the Fourth Amendment by
unreasonably prolonging the search and detention beyond the terms of the warrant.
Specifically, they claim that the deputies improperly continued searching for any
evidence of marijuana after they determined that the Hartes were growing tomatoes
instead of marijuana. They note that the warrant prohibited the deputies from
searching for anything except marijuana and marijuana-related drug paraphernalia,
and go on to say that “[w]ithin twenty minutes of the raid, the deputies knew that
they would not find the grow operation they were hoping for.” Appellant’s Opening
Br. at 43. So, the Hartes argue, the deputies should have stopped “hunting for
evidence of a remnant of a grow operation,” and certainly had no right to look
through “‘drawers, closets, [and] bags’ for evidence of even a single joint.” Id.
(alteration in original) (quoting Appellant’s App. at A639–40). From this, the Hartes
argue that the deputies unreasonably detained them because law-enforcement officers
may not detain residents during an improper search. I agree. Upon learning that the
Hartes had no marijuana-grow operation, probable cause dissipated and the deputies
could not continue to rummage for any evidence of marijuana or drug paraphernalia
and detain the Hartes while doing so.
The Fourth Amendment prohibits unreasonable searches. U.S. Const. amend.
IV. For a search to be reasonable, probable cause must exist at all times during the
search. See United States v. Grubbs, 547 U.S. 90, 95 n.2 (2006) (discussing how new
information or the passage of time can cause “probable cause . . . [to] cease to exist
after a warrant is issued”). Thus, even when law-enforcement officers obtain a proper
31
search warrant, probable cause may dissipate before the warrant’s execution,
rendering the search unreasonable under the Fourth Amendment. See Baranski v.
Fifteen Unknown Agents of the Bureau of Alcohol, Tobacco & Firearms, 452 F.3d
433, 452 (6th Cir. 2006) (“[T]he warrant need not only be valid when issued, but also
when the search is conducted.” (citing 2 Wayne R. LaFave, Search and Seizure §
4.7(a) (4th ed. 2004))). This principle applies throughout the search—law-
enforcement officers must not “disregard facts tending to dissipate probable cause.”
United States v. Ortiz-Hernandez, 427 F.3d 567, 574 (9th Cir. 2005) (quoting Bigford
v. Taylor, 834 F.2d 1213, 1218 (5th Cir. 1988)). “[T]here may be circumstances in
which continuation of a search will be permissible only if the probable cause
continues.” 2 Wayne R. LaFave, § 3.2(d) n.112 (5th ed. 2012) (emphasis omitted)
(citing Berg v. State, 384 So. 2d 292, 294 (Fla. Dist. Ct. App. 1980) (“Because the
negative field tests vitiated the existence of probable cause and the appellant
withdrew his consent, the detectives’ continued search was violative of the
appellant’s fourth amendment rights . . . .”)). Importantly, officers can detain the
occupants of a house during a search, but only if the search remains proper under the
Fourth Amendment. Michigan v. Summers, 452 U.S. 692, 705 (1981).
In determining whether probable cause dissipated, I examine what the deputies
knew and when. Before the search, the deputies knew that Mr. Harte had shopped one
time at a Green Circle store and left carrying a small shopping bag. Based on this
information, the deputies conducted three trash pulls from which they found green
vegetation. They field-tested the vegetation twice and received positive results for
32
marijuana. To the deputies, the three trash pulls combined with the two positive field-
test results indicated that the Hartes were steadily harvesting marijuana from a
marijuana-grow operation. I concluded in Section II.A that the deputies had probable
cause to obtain a search warrant, but the analysis does not end there.
The deputies learned more about the Hartes once they executed the warrant.
“The deputies quickly found the hydroponic garden in the basement,” which
contained at least six plants, including tomato plants and other vegetables, in various
stages of growth. Appellee Sheriff’s Office’s Response Br. at 14 (citing Appellant’s
App. at A571). When the deputies field-tested these plants, the plants tested negative
for marijuana. The deputies saw no indicia of a marijuana-grow operation, such as
blacked-out windows, fans, ventilators, drying racks, or scales.
The deputies claim the garden had “quite a few empty spaces on the
hydroponic spots, holes that did not have pots in them.”10 Appellant’s App. at A637.
One deputy also claimed the plants were dead. This led the deputies to continue
searching the basement for any remnants of an earlier marijuana-grow operation—
e.g., stray leaves or stems, or harvested marijuana being processed. Deputy Larry
Shoop helped in this search and was “positive we were going to find remnants of a
grow operation that . . . had been there at one point” because “[t]ypically even when
10
Contrary to the deputies’ account, I note that their photographs of the grow
operation show just two empty slots and at least sixteen occupied slots. The occupied
slots all contained cups or pots similar to those containing the tomatoes and other
vegetables, which were still very much alive, and were also labeled.
33
people clean up grow operations, we will find leaves that they have failed to sweep
up, or stems that they had failed to get rid of.” Id. Yet the deputies found no leaves,
stems, or other remnants of a grow operation.
While I accept that marijuana remnants would be probative of a past grow
operation, the opposite could be said for the absence of remnants, which indicates
that a marijuana-grow operation had never existed. Deputy Shoop admitted that after
finding the hydroponic setup in the basement, the deputies knew within the first 15 or
20 minutes that “we wouldn’t have a massive grow operation, as we had
speculated.”11 Id. at A636.
I conclude that what the deputies learned early on in the search dissipated any
probable cause to continue searching. Discovering tomato plants and other vegetables
in the basement dispelled any notion that the Hartes were steadily harvesting and
growing marijuana. The absence of sealed or blacked-out windows, fans, ventilators,
drying racks, and scales further supports this. The deputies didn’t claim that they saw
or smelled anything suspicious when they secured the home for threats before they
11
The deputies now maintain that it took them an hour or hour and a half to
determine that the Hartes had “no active . . . [or] dismantled grow operation.”
Appellant’s App. at A639. But they don’t explain why they needed so much time to
reach this conclusion. Upon entering the unfinished basement, they immediately saw
and field-tested the tomato-grow operation. They found no remnants on the cement
floor. One deputy said that he had never seen a house with both a hydroponic
vegetable garden and a hidden room with a hydroponic marijuana grow, and the
deputies had already gone through the home to secure it and had seen no indicia of
marijuana growing or use. And especially making all reasonable inferences from the
evidence in the Hartes’ favor, I conclude that the deputies reasonably knew that the
Hartes had no marijuana-grow operation early in the search.
34
began their housewide search in earnest. Nor did the deputies find marijuana stems,
leaves, or other residue.
What their eyes, ears, and noses told them once inside the Hartes’ house
severely undermined the positive field-test results from the trash pulls. The absence
of remnants, stems, or leaves “left over from the processing of the plants after
cultivation,” Appellant’s App. at A709, should have alerted the deputies that the
green vegetation from the Hartes’ trash was not processed marijuana from a grow
operation. Moreover, they knew that their field test was not as certain as a lab test.
Still, with their field tests from the trash pull now far more suspect, the deputies
searched the entire house—even inside dresser drawers and under beds—as though
the reliability of the field tests was unaffected. And though they had full access to the
kitchen trash during the search, and despite relying almost exclusively on trash pulls
to obtain the warrant, the record is silent on whether the deputies even checked the
Hartes’ trash during the search.
Then, knowing much more than the state judge knew when issuing the warrant,
armed with strong reasons to doubt their previous conclusions about the Hartes, and
lacking any evidence independent of a marijuana-grow operation that the Hartes were
marijuana users, the deputies began searching for evidence of personal marijuana use.
They didn’t return to the state judge who issued the warrant. The deputies contend
that they “switched just a little bit, and being that the warrant cover[ed] all marijuana
in all forms . . . we were going to find some kind of use of marijuana in the house . . .
more specific to a personal type of use.” Id. at A639. Pressing on with the housewide
35
search, a couple of deputies claimed to have smelled a faint odor of marijuana in
“various places” in the house (other deputies had not smelled it), so the deputies
called for a drug dog. Id. at A178. Despite being deployed throughout the house, the
dog failed to alert to the presence of any drugs, and the dog’s handler didn’t smell
any marijuana either. All told, the search lasted about two-and-a-half hours.
I conclude that the tenuous probable cause that the Hartes might have used
marijuana depended on their growing marijuana. Thus, when the probable cause for
growing marijuana dissipated, the already-weak probable cause of personal use also
dissipated. By ignoring everything they learned and rummaging for any marijuana,
the deputies ran afoul of the Fourth Amendment.
In dispute, the deputies point to the search warrant’s language authorizing
seizure of “[m]arijuana in all forms,” including “plants and plant material, marijuana
seeds, [and] marijuana in any stages of growth and/or processing.” Appellant’s App.
at A705. And they point to other language allowing seizure of “[d]rug [p]araphernalia
used to cultivate and/or process marijuana,” including “packaging material, trimmers,
scales, dryers, and hanging systems,” as well as “drug paraphernalia used to
introduce drugs into the body.” Id. The deputies also state that “no record evidence
suggest[s] that any deputy actually looked in a place where evidence of marijuana or
paraphernalia could not be found.” Appellee Sheriff’s Office’s Response Br. at 46. I
acknowledge that finding a marijuana-grow operation would have enabled a search
for and seizure of these items.
36
But the deputies cannot ignore the facts they learned when they executed the
warrant, namely that their suspected marijuana-grow operation did not exist. To rely
on the above search-warrant language, the deputies needed to find a marijuana-grow
operation or remnants of one. The affidavit shows this. Paragraphs twelve and
thirteen of the affidavit lie at its heart.12 Those paragraphs read as follows:
12. The Affiant has been involved in the investigation of no less than 15
marijuana indoor grow operations and has received training specific to
marijuana cultivation. Through this training and experience, the Affiant
has come to know marijuana plant material which is left over from the
processing of the plants after cultivation, such as leaves and stems, is
often saved to be used for extraction of THC for the manufacture of
resins and oils with extremely high THC content.
13. Based on the Affiant’s law enforcement training and experience, the
Affiant knows marijuana is often grown for sale and narcotics dealers
who sell out of their residence commonly maintain illicitly gained
quantities of US currency. The Affiant also knows that narcotics dealers
commonly maintain dealing records so they may keep track of profits
and names of individuals who owe them money.
Appellant’s App. at A709. Nothing in the affidavit gave (or even tried to give)
probable cause that the Hartes used marijuana unrelated to a grow operation. When
the deputies discovered a tomato garden, their entire basis for believing that the
Hartes used marijuana disappeared—they had no more basis to search the Hartes’
house for marijuana than they had to search any random neighbor’s house.
12
The first eleven paragraphs of the affidavit explain how the deputies
investigated the Hartes, and the last paragraph lists Deputy Burns’s drug-
investigation experience.
37
The deputies were not free to ignore facts that dissipated probable cause. See
Ortiz-Hernandez, 427 F.3d at 574 (probable cause to arrest a suspect for drug
trafficking dissipated after agents strip-searched the suspect and found nothing).
Instructive on this point is United States v. Bowling, 900 F.2d 926 (6th Cir. 1990). In
Bowling, Forest Service agents discovered two marijuana plots on federal land,
allegedly maintained by the Bowlings. Id. at 928. While some agents were obtaining
a search warrant to search the Bowlings’ trailer, Mr. Bowling gave two remaining
agents consent to search the trailer without a warrant. Id. at 928–29. These agents
searched the trailer and found nothing, though the parties disputed how thoroughly
the agents searched. Id. at 929. Two hours after the consent search, the absent agents
returned to the trailer with a search warrant. Id. The magistrate judge didn’t know
about the consent search when he issued the warrant, but the agents executing the
search warrant learned soon after entering the trailer that two other agents had
already done “a preliminary search of the trailer.” Id. The second search produced
marijuana and marijuana residue, plant food, ammunition, and two issues of a
marijuana-themed magazine. Id. At trial, the Bowlings moved to suppress the
evidence that agents had seized from their trailer during the second search. Id. They
argued that the second search was illegal because the consent search had
“eliminated” probable cause to issue the warrant for the second search. Id. The Sixth
Circuit agreed with the Bowlings. Id.
First, the court held that the agents had no “license to proceed with a search
whose continuing probable cause was at the very least questionable.” Id. at 933. The
38
court emphasized that absent “urgent circumstances,” officers should refrain from
relying on their own probable-cause determination, and should instead go to a neutral
magistrate when they learn of new circumstances that affect the probable cause
supporting their warrant. Id. (citing Johnson v. United States, 333 U.S. 10, 14
(1948)). “The Fourth Amendment’s protection against unreasonable searches and
seizures would be an incomplete and highly manipulable safeguard if a neutral
magistrate could not play the same impartial role in assessing continuing probable
cause that he plays in determining probable cause to issue the warrant in the first
place.” Id. But, concluding that the first search wasn’t so broad or thorough that it
dissipated probable cause, the Sixth Circuit affirmed the district court’s denial of
suppression. Id. at 934.
Another helpful case is United States v. Keszthelyi, 308 F.3d 557 (6th Cir.
2002). There, officers obtained a search and arrest warrant for a defendant based on
an undercover investigation that culminated in a series of cocaine sales. Id. at 562.
Soon after arresting the defendant, officers searched the defendant’s home and
discovered various incriminating items, including a digital scale, surveillance
equipment, two firearms, ammunition, pills, syringes, and $1,000 cash, but no
cocaine. Id. at 563. The search lasted about two hours. Id. Feeling that they had
missed something, the officers went back to the defendant’s house the next day and
searched it again without obtaining a new search warrant. Id. The second search
yielded one ounce of cocaine hidden behind the defendant’s oven. Id.
39
The defendant moved to suppress the evidence seized during the searches,
arguing in part that the second search wasn’t a reasonable continuation of the original
search. Id. at 567. The Sixth Circuit agreed with the defendant that the second search
was unreasonable. Id. at 568. The court noted that a search warrant authorizes only
one search, and that “a warrant expires once it has been fully executed” and the fruits
of the search secured. Id. at 568–69, 570 (citing United States v. Gagnon, 635 F.2d
766, 769 (10th Cir. 1980)). According to the court, though a search under a lawful
warrant may be as long and thorough as necessary, officers may not continue to
search once they are satisfied that all the evidence that the warrant authorized them to
seize has been located. Id. at 571 (citing United States v. Jackson, 120 F.3d 1226,
1228–29 (11th Cir. 1997); United States v. Menon, 24 F.3d 550, 560 (3d Cir. 1994)).
Under this standard, the Sixth Circuit held the second search unreasonable because
the government failed to show that “at the time of the second search, the agents
possessed a reasonable basis for believing that undiscovered evidence remained in
the defendant’s home.” Id. at 572.
Thus, a search—even under a valid warrant—becomes unreasonable when it’s
no longer supported by probable cause. That is the case here. The deputies searched
thoroughly under the search warrant for any sign or remnant of a grow operation and
found nothing. And nothing the deputies saw while securing the house gave them
probable cause (or even reasonable suspicion) to believe that the Hartes even casually
40
used marijuana.13 Having concluded that the Hartes hadn’t been growing marijuana,
probable cause dissipated, and further searching became unreasonable under the
Fourth Amendment.14 The “warrant ha[d] been fully executed,” Gagnon, 635 F.2d at
769, and deputies no longer “possessed a reasonable basis for believing that
undiscovered evidence” that the warrant authorized them to seize was in the Hartes’
house, Keszthelyi, 308 F.3d at 572.15
13
And even if it had, the deputies should not have “rel[ied] on their own
discretion,” but should instead have refrained from continuing to search “until a
neutral magistrate determined that probable cause continued to exist.” Bowling, 900
F.3d at 933. The deputies never claimed that a magistrate would have authorized
them to continue searching the Hartes’ house after learning of the tomato-grow
operation, and I don’t think a magistrate would have done so.
14
Judge Moritz concludes in her separate opinion that, because the Hartes
asserted that the deputies exceeded the scope of the warrant by searching for
evidence of general criminal activity, they abandoned their dissipation claim on
appeal. See Moritz Op. at 12–3. But I interpret the Hartes’ argument on appeal to
include the claim that the deputies’ probable cause dissipated. I disagree that the
Hartes conceded that the deputies could search for personal-use marijuana. Id. They
explicitly dispute the deputies’ authority to continue searching after they concluded
they would find no marijuana-grow operation, and take issue with the fact that
Sergeant Reddin told them to keep searching even after they reported that they found
nothing despite searching the house thoroughly. And as I have demonstrated, the
deputies’ probable cause to search for personal-use marijuana was moored to their
probable cause to search for a grow operation. So, even if the warrant initially
permitted the deputies to search for evidence of personal-use marijuana connected to
a marijuana-grow operation, the Hartes argue—and I agree—that this permission
terminated when the probable cause supporting the warrant dissipated.
15
In fact, the deputies themselves seemed to doubt whether they still had
probable cause to continue searching because they felt the need to explain to their
supervisor, Sergeant Reddin, that “all we have is a full on hydroponic grow operation
that appears to have tomato plants in it.” Appellant’s App. at A639.
41
The deputies fail to credibly explain why they continued to search after that
time. They claimed to be searching for evidence of a hidden room or another grow
operation, but they also admitted that they had never encountered a house with a
hydroponic tomato grow and a separate, hydroponic marijuana grow. Moreover, the
photos of the Hartes’ hydroponic grow reveal that their basement is unfinished,
strongly suggesting that the basement contained no hidden room. The deputies simply
ignored strong evidence that their hydroponic marijuana-grow dragnet had ensnared
hydroponic vegetable gardeners.
These obstacles meant that the deputies could not continue to search for “any
kind of criminal activity” in the house. Appellant’s App. at A572. Even if the
deputies were searching for only marijuana-related criminal activity, their general
rummaging through clothing drawers and other personal spaces disregarded the
fundamental rule that “when it comes to the Fourth Amendment, the home is first
among equals.” Florida v. Jardines, 133 S. Ct. 1409, 1414 (2013). We must
remember that the Fourth Amendment protects “the right of a man to retreat into his
own home and there be free from unreasonable governmental intrusion.” Id. (quoting
Silverman v. United States, 365 U.S. 505, 511 (1961)). In sum, the Hartes presented
sufficient evidence to show that the deputies violated the Fourth Amendment’s
reasonableness requirement by continuing to search after probable cause had
dissipated. Because at least some length of the search was unreasonable, and officers
can detain occupants of a house only while the search remains proper under the
42
warrant, Summers, 452 U.S. at 705, the Hartes’ continued detention was also
unreasonable.
2. Clearly Established Law
Even though the deputies violated the Hartes’ Fourth Amendment rights by
unreasonably continuing to search after probable cause had dissipated and by
unreasonably extending the Hartes’ detention, I cannot say that the deputies violated
clearly established law. The Hartes point to no cases sufficiently close to this one in
which a court has held that the search violated the Fourth Amendment. And the
deputies’ unreasonably prolonging the search was not so egregious that every
reasonable officer would know that the conduct violated the Fourth Amendment.
The Hartes define the right to be free from unreasonable searches and seizures
too generally. It’s axiomatic that the Fourth Amendment prohibits general warrants.
See Riley v. California, 134 S. Ct. 2473, 2494 (2014). But the Hartes can’t simply
claim that the deputies violated their right to be free from unreasonable general
warrants—that right is defined far too broadly.16 See Mullenix, 136 S. Ct. at 308.
Here, we must inquire into a narrower question—whether clearly established law
provides that continuing a search based on a similar search warrant once probable
cause has dissipated violates the Fourth Amendment.
16
Again, it’s the Hartes’ burden to show that the right they’re asking us to
vindicate is clearly established. Despite a deputy’s statement that “[e]verybody was
looking for any kind of criminal activity” in the house, Appellant’s App. at A572, the
officials were searching only in places where they reasonably expected to find
evidence of marijuana.
43
The Hartes correctly remind us that the “prohibition on ‘wide-ranging
exploratory searches’ beyond the scope of the warrant has been clearly established
since 1791.” Appellant’s Opening Br. at 46 (quoting Garrison, 480 U.S. at 84). But
Garrison held that an officer reasonably searched an apartment that wasn’t included
in the warrant because he mistakenly believed it was part of the apartment that the
warrant did describe. 480 U.S. at 88–89. Here, the warrant particularly described the
place to be searched and the things to be seized: the Hartes’ house and evidence of a
marijuana-grow operation.
And neither Bowling nor Keszthelyi concerned the question of when probable
cause dissipates in the course of a single search under an initially valid search
warrant. In both of those cases, officers conducted multiple searches of the same
property based on the same probable cause. Bowling, 900 F.2d at 929; Keszthelyi,
308 F.3d at 563. Though they are relevant to the analysis of dissipating probable
cause, they don’t clearly establish that the deputies’ probable cause dissipated after
they determined the Hartes were not, and hadn’t recently been, growing marijuana.
Similarly, though I found a Fourth Amendment violation based on an
unreasonable search for a marijuana-grow operation in Cassady v. Goering, 567 F.3d
628 (10th Cir. 2009), the deficiencies of the warrant and overall unreasonableness of
the search in that case were far more egregious than the circumstances before us
today. Under § 1983, Mr. Cassady sued the sheriff who had directed the search,
alleging in part that the search was overbroad and its execution unlawful. Cassady,
567 F.3d at 633. The warrant permitted the officers to seize “[a]ny & all” narcotics
44
and illegal contraband, as well as “all other evidence of criminal activity.” Id. at 635.
The officers found a large marijuana-grow operation on Mr. Cassady’s farm. Id. at
632. In executing the search warrant, the officers ransacked Mr. Cassady’s house and
damaged much of his property, including areas that weren’t involved in the marijuana
grow. Id. at 633. We concluded that the warrant and search violated Mr. Cassady’s
clearly established right to be free from unreasonable searches under the Fourth
Amendment, and denied the sheriff qualified immunity. Id. at 644.
Here, the warrant didn’t permit the deputies to search for any and all evidence
of any criminal activity (although it did allow them to search for drug paraphernalia
used to introduce any type of drug into the body), and the Hartes don’t allege that the
deputies damaged their property or ransacked their house, or even that the deputies
searched in places where they couldn’t find marijuana. So Cassady doesn’t clearly
establish that the deputies’ search was unreasonable.
Though Bowling, Keszthelyi, and Cassady lend some support to the theory
underlying the Hartes’ claim, they aren’t factually similar enough to put the
“constitutional question beyond debate.” Mullenix, 136 S. Ct. at 308 (quoting al-
Kidd, 563 U.S. at 741). After the deputies realized that the Hartes hadn’t committed
the crime described in the search-warrant affidavit—growing, harvesting, and
processing marijuana—they didn’t immediately stop searching. And despite having
secured the house and looked for another grow operation, the deputies had not come
across any evidence that the Hartes were using any marijuana, processed or otherwise
(or had committed any other crime). But instead of stopping their search, they
45
“switched just a little bit,” and continued searching for evidence of a separate crime
for which they did not have probable cause—personal use of marijuana. Appellant’s
App. at A639. But I still can’t say that every law-enforcement officer would have
known that searching for evidence of personal marijuana use or possession was
unreasonable when probable cause to search for a marijuana-grow operation had
initially existed but dissipated during the search.
To support their unreasonable-detention claim, the Hartes point to Summers.
But Summers held that because officers had reasonable suspicion to search a
residence for contraband, they had the inherent authority to detain the occupants
during the search. 452 U.S. at 705. Though the Court briefly noted that “special
circumstances, or possibly a prolonged detention, might” be unconstitutional in some
cases, it also said that the “routine detention of residents of a house while it was
being searched for contraband pursuant to a valid warrant is not such a case.” Id. at
705 n.21. The Hartes haven’t presented evidence sufficient to show that their
detention wasn’t “routine,” or that the warrant was unsupported by probable cause.
They also cite Muehler v. Mena, 544 U.S. 93 (2005), to support their claim
that a two-and-a-half hour detention is unreasonably long. In Muehler, law-
enforcement officers had a valid warrant to search a residence, and they detained its
occupants in handcuffs for two to three hours. 544 U.S. at 98. The Court found this
detention “plainly permissible.” Id. Though the Court stated that “[t]he duration of a
detention can, of course, affect the balance of interests under Graham [v. Connor,
490 U.S. 386 (1989)],” it still concluded that the “2- to 3-hour detention in handcuffs
46
in this case does not outweigh the government’s continuing safety interests.” Id. at
100. The Court ultimately declined to address whether the detention “extended
beyond the time the police completed the tasks incident to the search” because the
Ninth Circuit had also declined to address it.17 Id. at 102. But because no case
sufficiently close to this one fully advised the deputies that their continued searching
and their continued detention of the Hartes would violate the Fourth Amendment, I
cannot say that they violated clearly established law.
The Hartes make a colorable claim that the deputies violated clearly
established law by unreasonably detaining their young children during the search.
Though it’s clear that the deputies didn’t violate the Fourth Amendment by detaining
Mr. and Mrs. Harte during the search, reasonable law-enforcement officers might see
no need to detain the children. But we find no case clearly establishing this principle
such that the question is “beyond debate.” al-Kidd, 563 U.S. at 741.
In Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1183–84 (10th Cir.
2001), a SWAT team executing a search and arrest warrant detained at least three
children—ages four, eight, and fourteen—at gunpoint. We held that pointing firearms
at children and “continuing to hold [them] directly at gunpoint after the officers had
gained complete control of the situation . . . was not justified under the circumstances
at that point. This rendered the seizure of the children unreasonable, violating their
17
And on remand, the Ninth Circuit did conclude that the detention extended
beyond the search. Mena v. City of Simi Valley, 156 F. App’x 24, 25 (9th Cir. 2005)
(unpublished).
47
Fourth Amendment rights.” Holland, 268 F.3d at 1193. In reaching this conclusion,
we cited Baker v. Monroe Township, 50 F.3d 1186 (3d Cir. 1995), and McDonald v.
Haskins, 966 F.2d 292 (7th Cir. 1992). In both of those cases, the courts found it
unreasonable for police officers to detain children by holding them at gunpoint with
no evidence that the children posed any threat. Holland, 268 F.3d at 1192 (citing
Baker, 50 F.3d at 1193; McDonald, 966 F.2d at 294).
We further concluded that the law prohibiting the officers’ conduct was clearly
established: “We can find no substantial grounds for a reasonable officer to conclude
that there was legitimate justification for continuing to hold the young people outside
the residence directly at gunpoint after they had completely submitted to the SWAT
deputies’ initial show of force . . . .” Id. at 1197. Because “the officers’ mistake as to
what the law requires was unreasonable under all of the circumstances,” we denied
them qualified immunity. Id. But the key to this conclusion was that the officers
continued to aim loaded firearms directly at the children rather than “simply holding
the weapon in a fashion ready for immediate use.” Id. at 1193.
These cases, though relevant to the Hartes’ claim, do not clearly establish that
the deputies’ conduct toward the Hartes violated the Fourth Amendment. The Hartes
allege that one of the deputies pointed an assault rifle at Mr. Harte while he was lying
on the ground. They do not claim that any of the deputies pointed their firearms at the
children, only that the children were unnecessarily detained under armed guard and
were frightened by the deputies and their guns. Though detaining the children instead
of letting Mrs. Harte take them to school seems unnecessary, no case holds that
48
detaining harmless children under armed guard during a search of their house is
objectively unreasonable. At least initially, the deputies had probable cause to search
the house and detain Mr. and Mrs. Harte. See Summers, 452 U.S. at 704–05. Practical
concerns dictate that law-enforcement officers must be allowed to detain children
with their parents to monitor the children and ensure that no one interferes with the
search.
In sum, the Hartes haven’t presented evidence sufficient to establish that the
deputies violated clearly established law by searching for any evidence of marijuana
after determining that the Hartes weren’t growing marijuana, and by detaining the
family under armed guard for two-and-a-half hours.
C. Excessive Force
1. Constitutional Violation
I next address the Hartes’ claim that the agents used excessive force in
executing the search warrant. We evaluate excessive-force claims under the Fourth
Amendment’s objective-reasonableness standard. Graham, 490 U.S. at 395. We
balance “the nature and quality of the intrusion on the individual’s Fourth
Amendment interests against” the government’s interests. Id. at 396. In doing so, we
must evaluate the totality of the circumstances. Garner, 471 U.S. at 9. Our inquiry is
heavily fact specific. Factors relevant to this analysis include the severity of the
crime at issue, whether the suspect poses a safety threat, and whether the suspect
attempts to flee or resists arrest. Graham, 490 U.S. at 396. And we examine the
49
reasonableness of a particular use of force “from the perspective of a reasonable
officer on the scene.” Id.
Here, we must ask whether the seven deputies violated the Hartes’ Fourth
Amendment right to be free from the use of excessive force by wearing bulletproof
vests and carrying firearms and a battering ram to execute a warrant on a family with
no criminal history in an ordinary residential neighborhood. Though “[t]he Fourth
Amendment reasonableness analysis is not limited to the three Graham factors,” I
choose to start with those factors. Estate of Redd ex rel. Redd v. Love, 848 F.3d 899,
908 (10th Cir. 2017). I conclude that they weigh heavily in the Hartes’ favor.
First, I acknowledge that the crime at issue—growing marijuana—can be
considered severe. But the Hartes correctly point out that Kansas law makes
possessing marijuana a misdemeanor. Kan. Stat. Ann. § 21-5706(b)(3), (c)(2)(A).
They also point out that marijuana possession isn’t a crime by some states’ laws,
including neighboring Colorado’s. While this is true, growing more than four
marijuana plants is a felony. Id. §§ 21-5705(d)(7)(A), 65-4105(d)(16). Still, this
factor favors the Hartes. If they were growing marijuana at all, the evidence
suggested small quantities. Trooper Wingo observed Mr. Harte leaving a hydroponic-
gardening store just once carrying a small bag, and the three weeks of trash pulls
revealed at best a couple of handfuls of wet vegetation.
Second, the Hartes posed no safety threat. The deputies contend that they
couldn’t have known the Hartes posed no safety threat, and claim that “[f]rom the
officer’s [sic] perspective, they were serving a felony narcotics warrant with little to
50
no knowledge about the occupants other than their names, where they lived, and that
they likely grew marijuana.” Appellee Sheriff’s Office’s Response Br. at 41–42. But
this lack of knowledge was their own fault. The deputies could easily have
investigated the Hartes’ backgrounds. They would have learned that the Hartes had
no criminal history and were former CIA employees. They would also have learned
that Mrs. Harte is a practicing attorney and that Mr. Harte had become a stay-at-home
father.
Finally, nothing suggested that the Hartes might resist arrest. As discussed
above, they had no criminal history, and, at best, had harvested a small amount of
marijuana in three weeks. The deputies had no reason to believe that the Hartes
would attempt to flee or actively resist the arrest or search.
The deputies contend that the circumstances justified their actions and that the
force they used wasn’t excessive. Indeed, officers can act to protect themselves.
Lawmaster v. Ward, 125 F.3d 1341, 1349 (10th Cir. 1997). And the search gave them
the right to detain the Hartes and to use reasonable force for that detention. But the
deputies still had no reason to believe they would need to protect themselves from the
Hartes.
Still, the deputies argue that Holland shows that they didn’t use excessive
force. In Holland, we held that the decision to send a seven-person SWAT team
wearing hooded, camouflage clothing, along with three uniformed officers, to
execute a nighttime search warrant wasn’t objectively unreasonable. 268 F.3d at
1183, 1197. But the Fourth Amendment reasonableness inquiry always depends on
51
the totality of the circumstances. Garner, 471 U.S. at 9. In Holland, the deputies
expected to find an unknown number of people besides the suspect at the suspect’s
residence, they believed that the suspect had violently assaulted another person, and
the officers anticipated that they would find firearms at the residence. Id. at 1191.
Though the deputies here didn’t send a SWAT team to execute the warrant, and they
weren’t wearing “helmets, hoods, kneepads or camouflaged clothing,” this hardly
makes their conduct reasonable under Holland. Appellant’s App. at A132. Had the
deputies done some homework, they would have learned that no one in the Harte
family posed any risk of violence. Moreover, in Holland, we said that the decision to
send a SWAT team to execute a warrant was reasonable under the circumstances, but
we ultimately held that the officers weren’t entitled to qualified immunity on the
excessive-force claim. Id. at 1191, 1197.
I conclude the same here. Taking the facts most favorably for the Hartes, as
required, presents an alarming scene. The deputies arrived with a battering ram at the
ready, banged and screamed for the Hartes to open the door, forced Mr. Harte to lie
down on the floor, held an assault rifle over him,18 “flooded the foyer” of the Hartes’
house, and ordered Mrs. Harte and the Hartes’ two children to sit cross-legged
against the wall. Appellant’s App. at A104. Deputies then restricted the Hartes to
18
In their brief, the Hartes say that Deputy Kilbey pointed his assault rifle at
Mr. Harte. But Mr. Harte testified that he didn’t remember which direction the
assault rifle was pointing. The district court found that the Hartes conceded that no
deputy had pointed a weapon at them. The sole evidence that Deputy Kilbey pointed
an assault rifle at Mr. Harte was Mrs. Harte’s statement that she saw a deputy
“holding an assault rifle over [her] husband.” Appellant’s App. at A729.
52
their living room under armed guard for the duration of the search. Even though they
knew that the Hartes’ children would be home at that time, they nevertheless chose to
execute the search warrant before school started. And then they wouldn’t let either of
the Hartes bring the children to school, nor would they let a neighbor take the
children to school. Finally, as the deputies were leaving, they told the Hartes they
should “have a sit-down” and “just be honest with each other and talk about . . . drug
use,” implying that their thirteen-year-old son was using marijuana. Appellant’s App.
at A634.
Considering the lack of danger the Hartes posed to the deputies, their tactics
were unreasonably extreme. See Graham, 490 U.S. at 396. That the deputies never
physically touched or injured any of the Hartes, and that the deputies may not have
pointed their guns at any of the Hartes, doesn’t convince me otherwise. Because the
deputies had no reason to think that the Hartes posed a threat, the circumstances
simply didn’t justify the overwhelming force. Indeed, if permitted here, such conduct
will be routinely permissible. Thus, the Hartes have presented enough evidence to
show that the Sheriff’s Office’s tactics violated the Hartes’ Fourth Amendment rights
to be free from the use of excessive force.19
2. Clearly Established Law
19
On this narrow point—whether the deputies used excessive force in
executing the Hartes’ search warrant—I agree with Judge Lucero. See Lucero Op.
15–19. We disagree only on whether the law establishing this violation was clearly
established.
53
In spite of this holding, I see no existing precedent that would have put it
beyond debate that the deputies were using excessive force in executing their search
warrant. “[T]he right to arrest an individual carries with it the right to use some
physical coercion to effect the arrest.” Holland, 268 F.3d at 1192. The same goes for
searches—law-enforcement officers may reasonably display their weapons to gain
control of a situation. Id. at 1192. “The display of weapons, and the pointing of
firearms directly at persons . . . should be predicated on at least a perceived risk of
injury or danger to the officers or others, based upon what the officers know at that
time.” Id.
The Fourth Amendment protects against more than just physical injury flowing
from the use of excessive force; it protects “liberty, property and privacy interests—a
person’s sense of security and individual dignity.” Id. at 1195. We have observed that
many excessive-force cases have proceeded absent allegations of physical injury. See
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971); Holland, 268 F.3d at 1195. Even so, not every reasonable law-enforcement
officer would know that what the deputies did here violated the law. See al-Kidd, 563
U.S. at 741.
The deputies’ conduct didn’t reach the level of conduct we have condemned in
previous cases. In Holland, we emphasized that the deputies had no justification for
pointing their weapons at children. Holland, 268 F.3d at 1193. We reached a similar
conclusion in Maresca v. Bernalillo County, 804 F.3d 1301, 1313 (10th Cir. 2015). In
Maresca, police officers pulled over a family on the side of the highway under the
54
mistaken belief that the family’s vehicle was stolen. Id. at 1304. They pointed their
guns at the vehicle and ordered each family member to step out of the car, walk
backwards towards the officers with hands in the air, and lie face-down with feet in
the air. Id. at 1305. They handcuffed the family members and kept their guns pointed
at each family member, including at least two of the children. Id. at 1305–06.
We held that fact questions remained before we could determine whether the
officers had used excessive force. Id. at 1313–14. Specifically, we concluded that the
officers would not be entitled to qualified immunity for their conduct of continuing to
point their guns directly at the two children even after every single family member
(except, perhaps, the nine-year-old daughter) had cooperated with the officers and
was lying face-down and handcuffed on the side of the highway. Id. at 1314–15
(“Pointing a firearm directly at a child calls for even greater sensitivity to what may
be justified or what may be excessive under all the circumstances.” (quoting Holland,
268 F.3d at 1193)).
Again, the deputies here never pointed their weapons directly at the Harte
children. Even if one deputy pointed an assault rifle at Mr. Harte, he must have done
so briefly, because Mr. Harte went to the living room with the rest of the family to
wait. And though I find it unreasonable to send seven deputies dressed in bulletproof
vests, one displaying an assault rifle and the rest displaying pistols, to execute a
warrant for a suspected small-time marijuana grow against a family with no criminal
history, I can’t say that every reasonable official would necessarily know that this
conduct amounts to excessive force. See, e.g., Bailey v. United States, 133 S. Ct.
55
1031, 1038 (2013) (“‘[T]he execution of a warrant to search for narcotics is the kind
of transaction that may give rise to sudden violence or frantic efforts to conceal or
destroy evidence,’ and ‘[t]he risk of harm to both the police and the occupants is
minimized if the officers routinely exercise unquestioned command of the situation.’”
(second alteration in original) (quoting Summers, 452 U.S. at 702–03)). The cases
that the Hartes cite don’t persuade me otherwise. Therefore, I would affirm the
district court’s grant of summary judgment in favor of the deputies.
III. Monell Claim
The Hartes also claim that Johnson County and Sheriff Denning are liable
under 42 U.S.C. § 1983 for failure to properly train and supervise the deputies.
Specifically, they allege that “the botched investigation and raid on the Hartes
occurred as part of a multi-year scheme that was, essentially, a publicity stunt.”
Appellant’s Opening Br. at 53. The district court rejected the Hartes’ argument and
granted Sheriff Denning and Johnson County summary judgment, reasoning that the
absence of an underlying constitutional violation precluded liability under Monell.
Harte, 151 F. Supp. 3d at 1194.
We review de novo the propriety of summary judgment for Johnson County
and Sheriff Denning, viewing the evidence in the light most favorable to the Hartes.
See Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 766 (10th Cir.
2013). We must grant summary judgment if these defendants show that there is no
genuine dispute on any material fact and they are entitled to judgment as a matter of
law. Id. I first address Sheriff Denning’s liability, and then Johnson County’s.
56
Because I held above that the Hartes failed to present evidence sufficient to show that
the deputies lacked probable cause, the constitutional violations relevant to the
Monell claim are the unreasonable search and the use of excessive force.
A. Sheriff Denning
Sheriff Denning didn’t participate in executing the search warrant, so to
succeed on their failure-to-train or failure-to-supervise claims, the Hartes must show
more than that Sheriff Denning was in charge of the deputies who investigated the
Hartes and searched their house. See Dodds v. Richardson, 614 F.3d 1185, 1194
(10th Cir. 2010). They must show that “(1) [Sheriff Denning] promulgated, created,
implemented or possessed responsibility for the continued operation of a policy that
(2) caused the complained of constitutional harm, and (3) acted with the state of mind
required to establish the alleged constitutional deprivation.” Id. at 1199. We have
also phrased these requirements as “(1) personal involvement; (2) sufficient causal
connection, and (3) culpable state of mind.” Schneider, 717 F.3d at 767 (quoting
Dodds, 614 F.3d at 1195).
Here, the Hartes fail to present evidence sufficient to show that Sheriff
Denning caused their constitutional deprivations and “acted with the state of mind
required to establish the alleged constitutional deprivation.” Dodds, 614 F.3d at 1199.
In his deposition, Sheriff Denning repeatedly testified that he was unaware of the
specific details regarding the Harte investigation and search until after the search
took place. He also repeatedly explained that his department didn’t require officers to
send field-tested samples to the crime lab because Kansas law provided that KN-
57
reagent field tests were sufficient to establish probable cause during the preliminary
stages of investigations and proceedings. The Hartes did present evidence that Sheriff
Denning knew of and supported the policy of targeting marijuana growers on April
20. But this policy alone doesn’t violate any rights—if properly implemented,
executing several warrants on the same day isn’t inherently unlawful. Finally, Sheriff
Denning explained that certain Sheriff’s Office policies suggested that some of the
deputies’ actions, such as failing to develop a safety plan and executing the warrant
without determining whether the children had left the house, actually violated
department protocol.
At most, the Hartes could argue that Sheriff Denning is liable for allowing
local law-enforcement agencies to target marijuana-grow operations on April 20,
failing to review every single “4/20” search warrant and investigation to be sure that
it complied with protocol, and permitting law-enforcement officers to apply for
search warrants based on two positive field-test results from field-test kits that
Kansas law expressly provided were reliable.20 As none of these policies had
anything to do with the deputies’ conduct in executing the warrant, the Hartes have
failed to show that Sheriff Denning caused the deputies’ use of excessive force or
their unreasonable search.
B. Johnson County Sheriff’s Office
20
Because I conclude that probable cause supported the search warrant, I
decline to address whether Sheriff Denning or Johnson County could be liable under
§ 1983 for any deputy’s conduct in procuring the search warrant.
58
To survive summary judgment on their Monell claim against Johnson County,
the Hartes must first “identify a municipal ‘policy’ or ‘custom’ that caused” their
injuries. Dodds, 614 F.3d at 1202 (quoting Bd. of Cty. Comm’rs of Bryan Cty. v.
Brown, 520 U.S. 397, 403 (1997)). Then they must present evidence sufficient to
show that the “municipal action was taken with the requisite degree of culpability
and must demonstrate a direct causal link between the municipal action and the
deprivation of federal rights.” Id. (quoting Brown, 520 U.S. at 404). The Hartes have
a high burden: they must “show that the policy was enacted or maintained with
deliberate indifference to an almost inevitable constitutional injury.” Schneider, 717
F.3d at 769. And “the challenged policy or practice must be ‘closely related to the
violation of the plaintiff’s federally protected right.’” Id. at 770 (quoting Martin A.
Schwartz, Section 1983 Litigation Claims & Defenses, § 7.12[B] (2013)).
The Hartes have failed to meet either of the two requirements to establish
municipal liability. As established above, the only official policies that the Hartes
alleged caused them injury were (1) searching suspected marijuana-grow operations
on April 20, and (2) allowing the deputies to apply for a search warrant based on the
positive results of two field tests of wet vegetation that deputies found in the Hartes’
trash.21 Quite simply, the Hartes didn’t claim that the Sheriff’s Office had a policy or
21
Again, neither of these policies is inherently unlawful, and neither would
inevitably lead to constitutional injury. As to the first policy, the deputies waited
until March to start planning the April 20 day of searches, and the deputies refused to
wait until the Hartes’ children had left the house to execute the search warrant. If any
“4/20” policy existed, it surely didn’t mandate procrastination or sloppy
59
practice of exceeding the scope of its search warrants or using excessive force when
executing warrants, and nothing in the record attributes the deputies’ aggressive and
intimidating conduct or their exploratory rummaging to an official policy. Thus, I
would affirm the district court’s dismissal of the Hartes’ claims against Sheriff
Denning and Johnson County. I now turn to the Hartes’ state-law claims.
IV. State-Law Claims
The Hartes brought several state-law claims in addition to their § 1983 claims,
including trespass, assault, false arrest, abuse of process, intentional infliction of
emotional distress, and false light invasion of privacy. The district court exercised its
supplemental jurisdiction under 28 U.S.C. § 1367 and granted the deputies summary
judgment on each claim. On appeal, the Hartes addressed only the trespass, assault,
false-arrest, and intentional-infliction-of-emotional-distress claims, so I limit my
analysis to those claims as well. I agree with the district court on the trespass and
investigation. Regarding the second policy, Kansas law permitted officials to rely on
field-test results to establish probable cause in situations similar to obtaining a search
warrant, and Sheriff Denning implied that this law dictated the Sheriff’s Office’s
internal policies. The Hartes presented evidence that at least one “4/20” search
warrant from the previous year had yielded only a tomato grow. But they presented
no evidence about whether that search warrant was obtained based solely on field-test
results, so we can’t infer that the Sheriff’s Office knew that this specific practice
would lead to unreasonable searches. Even if the law didn’t permit reliance on field
tests for probable cause, or only allowed such reliance when specially trained
officials performed the field tests, I have previously established that probable cause
supported the search warrant here. Because the deputies had probable cause, the
Sheriff’s Office can’t be liable for a violation of the Fourth Amendment’s prohibition
on unreasonable searches.
60
assault claims, but would reverse on the claims of intentional infliction of emotional
distress and false arrest.
A. Trespass
The Hartes claim that the deputies trespassed on their property by entering the
house without authorization. See Armstrong v. Bromley Quarry & Asphalt, Inc., 378
P.3d 1090, 1092 (Kan. 2016) (“[A] trespasser is one who enters the premises of
another without any right, lawful authority, or express or implied invitation or
license.”). But the search warrant permitted the deputies to enter the Hartes’ house.
Harte, 151 F. Supp. 3d at 1195–96 (citing Restatement (Second) of Torts § 210 cmt.
h (1965)). Because I agree with the district court that the search warrant was valid, I
also agree with its order granting the deputies summary judgment on the trespass
claim.
B. False Arrest
The Hartes also claim that the deputies falsely arrested them. “In an action for
false arrest . . . all that is necessary is that the individual be restrained of his liberty
without any sufficient legal cause therefor, and by words or act which the one being
restrained fears to disregard.” Thompson v. Gen. Fin. Co., 468 P.2d 269, 280 (Kan.
1970). Because I conclude that the deputies’ probable cause dissipated and that their
search became unreasonable under the Fourth Amendment, I also conclude that the
Hartes’ continued detention became unreasonable under Summers. Therefore, in my
view, the Hartes have presented sufficient evidence to meet the elements of false
61
arrest, and I would reverse the district court’s order granting the deputies summary
judgment on this claim.
C. Assault
I conclude above that the Hartes submitted evidence sufficient to show that the
deputies used excessive force. But this doesn’t mean under Kansas law that the
deputies assaulted the Hartes. In Kansas, assault is “an intentional threat or attempt,
coupled with apparent ability, to do bodily harm to another, resulting in immediate
apprehension of bodily harm. No bodily contact is necessary.” Baska v. Scherzer, 156
P.3d 617, 622 (Kan. 2007) (quoting Pattern Instructions for Kan. Civ. 3d 127.01).
“The gravamen of a civil assault . . . is grounded upon the actor’s intention to inflict
injury.” Id.
The Hartes’ claim for assault fails because they can’t show that the deputies
intended to threaten them or attempted to injure them. Id. Rather, the deputies
intended to take control of the situation and conduct their search.22 The Hartes’
assault claim fails unless we credit their account that overzealous deputies wanted to
barge into the Hartes’ house to threaten them or attempt to injure them. But if the
deputies believed the Hartes were growing marijuana, then they likely brought their
22
In their brief, the Hartes contend that the deputies timed their raid for when
the children were home. But later they say that Sergeant Reddin “wanted to execute
the search before [the children] left for school in order to maximize the possibility
that Bob and Addie would be home ‘before they le[ft] for work.’” Appellant’s
Opening Br. at 15 (alteration in original) (quoting Appellant’s App. at A543)
(emphasis added). This doesn’t show that the deputies intended to threaten the
children.
62
weapons to protect themselves rather than to threaten, harm, or even frighten the
Hartes—even though doing so was unreasonable under the circumstances. True, the
deputies’ beliefs turned out to be mistaken, and further investigation would have
allayed reasonable fears of danger. But this doesn’t convert their actions into assault.
Baska, 156 P.3d at 622. The Hartes didn’t present evidence sufficient to create a
genuine dispute of material fact that the deputies intended to threaten or harm the
Hartes. The deputies sought only to uncover a marijuana-growing operation.
Thus, because I conclude that the Hartes failed to present evidence from which
a jury could find that the deputies intended to harm or to threaten them, I would
affirm the district court’s order granting summary judgment on this claim.
D. Intentional Infliction of Emotional Distress
To prove intentional infliction of emotional distress, the Hartes must show (1)
that the deputies acted intentionally or with reckless disregard for the Hartes’ well-
being; (2) that the deputies’ conduct was extreme and outrageous; (3) a causal
connection between the deputies’ conduct and the Hartes’ mental distress; and (4)
that the Hartes’ mental distress is extreme and severe. Roberts v. Saylor, 637 P.2d
1175, 1179 (Kan. 1981). The Hartes have to show that the deputies’ actions were “so
outrageous in character, and so extreme in degree, as to go beyond the bounds of
decency, and . . . [be] utterly intolerable in a civilized society.” Id.
The district court concluded that, because the defendants violated no
constitutional rights in executing the search warrant and that the force they used was
reasonable for Fourth Amendment purposes, the Hartes also failed to meet their
63
burden on this claim. I disagree. The Kansas Supreme Court has said that plaintiffs
can show intentional infliction of emotional distress when telling an “average
citizen” what happened would “arouse resentment against the actor, and lead that
citizen to spontaneously exclaim, ‘Outrageous!’” Taiwo v. Vu, 822 P.2d 1024, 1029
(Kan. 1991) (quoting Roberts, 637 P.2d at 1179).
The deputies’ conduct here could and did elicit such a response. And Kansas
has clarified that “it is for the court to determine, in the first instance, whether the
defendant’s conduct may reasonably be regarded as so extreme and outrageous as to
permit recovery . . . and [if] reasonable men may differ, the question is for the jury to
determine.” Id. at 1028 (quoting Dawson v. Assocs. Fin. Servs. Co. of Kan., Inc., 529
P.2d 104, 113 (Kan. 1974)) (emphasis omitted) (alteration in original). Because
reasonable men may differ and the Hartes presented evidence that all four family
members have been diagnosed with post-traumatic-stress disorder, I would vacate the
district court’s order granting the deputies summary judgment on this claim.
64
16-3014, Harte v. Board of County Comm’rs
MORITZ, J.
Seven deputies from the Johnson County Sheriff’s Office (JCSO) entered and
searched the Harte family’s residence pursuant to a warrant.1 The Hartes brought this
action to redress their alleged injuries arising from that incident. In my view, several of
the Hartes’ claims involve fact questions that only a jury can decide. Accordingly, I
would partially reverse the district court’s order granting summary judgment in favor of
the deputies.
A judge issued a warrant to search the Harte residence based on Deputy Mark
Burns’ representations that (1) he “field tested a sample of the plant material” obtained
from the Hartes’ trash; and (2) the tests “showed a positive response for the presence of
THC.” App. 708. At the summary-judgment stage, the Hartes contested the second fact,
asserting that Deputy Burns “falsely reported that the field tests were positive.” Supp.
App. 118.
If the Hartes’ version of the facts is true, the deputies violated the Fourth
Amendment. See Franks v. Delaware, 438 U.S. 154, 171 (1978); Snell v. Tunnell, 920
F.2d 673, 698 (10th Cir. 1990); Snell, 920 F.2d at 699 (explaining that “entry and search
of a residence on the basis of known false allegations violate[s] the [F]ourth
[A]mendment’s proscription against unreasonable searches and seizures”). And because
the deputies have failed to demonstrate that there exists no genuine dispute of material
fact, I would conclude that the district court partially erred in entering summary judgment
1
I adopt, in general, the facts set forth in Judge Phillips’ separate opinion. See
Phillips Op. 2-11. I also provide additional facts as needed.
for the deputies on the Hartes’ Franks claims. Further, because the district court assumed
the warrant’s validity in entering summary judgment on those claims, I would also hold
that the district court erred in granting summary judgment on the Hartes’ wrongful search
and seizure and state-law claims. But I would find that the district court correctly entered
summary judgment on the Hartes’ excessive-force and supervisory liability claims.
I
During their cursory pre-search investigation of the Hartes’ residence, the deputies
retrieved three “clump[s] of green vegetation” from the Hartes’ trash. App. 548. After
discarding the first clump, the deputies allegedly conducted field tests on the second and
third clumps. In his warrant application, Deputy Burns averred that tests of both clumps
“showed a positive response for the presence of THC.” App. 708. Based on those alleged
results, Deputy Burns concluded that the green vegetation was “saturated marijuana plant
material.” Id. at 709. We now know that the vegetation was nothing more than discarded
tea leaves. Nevertheless, a judge issued a warrant in reliance on Burns’ representations.
The Hartes claim that the deputies obtained the warrant through either “deliberate
falsehood[s]” or “reckless disregard for the truth.” Franks, 438 U.S. at 171. Specifically,
the Hartes assert three putative Franks violations: (1) the deputies lied about the results of
the tests; (2) the deputies misinterpreted the test results, construing negative results as
positive; and (3) assuming that the deputies actually received positive results, they
2
recklessly disregarded the truth—that the leaves were tea, and not marijuana—by relying
solely on inaccurate field tests and failing to conduct a thorough investigation.2
A
The Hartes’ first claim implicates Franks’ deliberate-falsehood prong. The Hartes
allege that the deputies generally, and Deputy Burns specifically, lied about the test
results. If that allegation is true, the deputies unquestionably violated the Hartes’ clearly
established Fourth Amendment rights. See Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th
Cir. 2004) (“No one could doubt that the prohibition on falsification or omission of
evidence, knowingly or with reckless disregard for the truth, was firmly established as of
1986, in the context of information supplied to support a warrant for arrest.”); Clanton v.
Cooper, 129 F.3d 1147, 1154 (10th Cir. 1997) (“It has long been clearly established that
the Fourth Amendment’s warrant requirement is violated when ‘a false statement
knowingly and intentionally . . . was included by the affiant in the warrant affidavit’ if the
false statement is necessary to a finding of probable cause.” (quoting Franks, 438 U.S. at
155-56)).
The parties dispute whether Deputy Burns lied in the warrant affidavit. Thus, it’s
imperative to apply the correct framework for resolving that dispute.
2
Although the Hartes’ complaint alleges a Franks claim only in broad terms,
their summary-judgment and appellate briefing articulate the distinct theories set
forth above. I refer to these theories as “claims” throughout.
On appeal, the Hartes also seem to assert a new Franks claim: that the deputies
never field tested the tea leaves at all, and that they lied about doing so. But the
Hartes didn’t make this argument below. Nor do they argue for plain-error review on
appeal. Accordingly, I decline to consider this alternative Franks claim. See Richison
v. Ernest Grp., Inc., 634 F.3d 1123, 1130-31 (10th Cir. 2011).
3
“Because of the underlying purposes of qualified immunity, we review summary
judgment orders deciding qualified immunity questions differently from other summary
judgment decisions.” Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001). At the first
step in the analysis, this court must determine whether the facts alleged by the Hartes,
when viewed in the light most favorable to them, establish a constitutional violation. See
Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015). But mere allegations aren’t
enough; the Hartes’ version of the facts must be “sufficiently grounded in the record.”
Cox v. Glanz, 800 F.3d 1231, 1243 (10th Cir. 2015) (quoting Thomson v. Salt Lake Cty.,
584 F.3d 1304, 1326 (10th Cir. 2009) (Holmes, J., concurring)); see Quinn, 780 F.3d at
1004 (explaining that “plaintiff’s factual recitation must find support in the record”). As I
discuss below, the Hartes’ allegations of lying are supported by record evidence. And as
the previous paragraph demonstrates, that version of the facts gives rise to a clearly
established Franks violation.
Accordingly, the burden shifts to the deputies, “who must prove that ‘no genuine
issues of material fact’ exist.” Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir.
2002) (quoting Gross v. Pirtle, 245 F.3d 1151, 1156 (10th Cir. 2001)). “In the end,
therefore, the defendant still bears the normal summary judgment burden of showing that
no material facts remain in dispute that would defeat the qualified immunity defense.” Id.
In setting forth this framework, I’m mindful of our precedent indicating that “to
survive qualified immunity, a [Franks] plaintiff must make a substantial showing of
deliberate falsehood.” Snell, 920 F.2d at 698; see id. (explaining that a Franks plaintiff
must make “a specific affirmative showing of dishonesty by the [warrant] applicant”
4
(quoting Myers v. Morris, 810 F.2d 1437, 1458 (8th Cir. 1987)); see also Franks, 438
U.S. at 171 (holding that “the challenger’s attack must be more than conclusory”).
I would find that the Hartes have made the required showing here and that the
deputies, in turn, have failed to dispel the existence of a genuine factual dispute. I would
further find that the Hartes’ allegations of lying are sufficiently grounded in record
evidence, and that same evidence creates a triable issue of fact as to whether the deputies
lied about the field-test results.
To begin, the record contains chemical evidence that Deputy Burns didn’t obtain
positive test results for the tea leaves. The Hartes’ retained expert, Michael Bussell, tested
the exact same samples—using the exact same type of field test the deputies used—and
yet obtained very different results: contrary to the deputies’ alleged results, Bussell stated
that the tea leaves tested negative for the presence of THC. A jury could reasonably infer
from those negative results that Deputy Burns lied about obtaining positive results.3
The district court disregarded this hard evidence for three reasons. First, the
district court noted that the tea leaves were more than three years old when Bussell tested
them. The district court reasoned that this fact undermines Bussell’s testing because
“[t]here is no evidence in the record from which a jury could conclude that the plant
3
In his separate opinion, Judge Phillips suggests that Bussell’s negative results
don’t support the Hartes’ allegations because the field test at issue is inaccurate 70%
of the time. See Phillips Op. 19 n.9. But that 70% figure indicates, based on a single
study, how often this test yields false positives for a variety of chemical substances,
e.g., vanilla, peppermint, and 40 others. Because the study doesn’t indicate how often
this test yields false positives specifically for caffeine—the only substance relevant
here—the putative 70% inaccuracy rate doesn’t support Judge Phillips’ position.
Indeed, the study’s testing yielded an accurate negative result for a caffeine-based
coffee flavoring.
5
material was sufficiently the same in terms of its chemical makeup in May 2015 as
compared to April 2012.” App. 112. But that reasoning wrongly shifts the evidentiary
burden away from the deputies, who bear the ultimate burden to show that no factual
disputes exist. See Olsen, 312 F.3d at 1312. The Hartes came forward with evidence
contradicting Deputy Burns’ warrant affidavit, and a jury could credit that evidence. The
deputies were free to introduce their own evidence regarding the tea leaves’ chemical
composition, but they didn’t do so. In the absence of such evidence, there’s no basis for a
jury to conclude that the tea leaves weren’t chemically identical in 2012 and 2015.4
Next, the district court noted that Bussell obtained a false-positive result when he
tested a batch of freshly brewed tea leaves. In the district court’s view, this positive result
would preclude a reasonable jury from concluding that Deputy Burns lied about obtaining
a positive result in 2012. I disagree. First, as the district court conceded, there’s “no
evidence” that the 2012 tea leaves were the same type of tea leaves that Bussell brewed in
2015. App. 117. Second, Bussell obtained a positive result by using a field test made by a
different manufacturer—and based on a different chemical reagent—from the tests the
deputies used in 2012. Notably, when Bussell tested the freshly brewed leaves using the
same field test that the deputies used, he obtained a negative result. Perhaps a jury would
give some weight to a result obtained from a chemically different field test and a
potentially different type of tea. But in my view, that result doesn’t preclude the jury
4
On appeal, the deputies replicate the district court’s error. They argue that
caffeine in the tea leaves triggered a false positive in 2012, and they speculate that
the caffeine may have “substantially dissipated” by 2015. Aplee. Br. 28. But the
deputies point to no record evidence supporting that speculation.
6
from crediting the results the Hartes rely on, which involved the same field test and the
original tea leaves.
Finally, the district court points to the test results obtained by JCSO’s Crime
Laboratory (the Crime Lab). Four months after the April 20 raids, the Crime Lab retested
the original tea leaves, using the same field test that the deputies used, and obtained a
positive result. That’s certainly favorable evidence for the deputies. And perhaps a jury
would put more stock in a test conducted four months later—albeit by the deputies’ own
Crime Lab—than in one conducted three years later by an expert the Hartes retained. But
in the face of directly contradictory test results, I would conclude that we can’t substitute
our judgment for a jury’s.5
In addition to the Hartes’ direct evidence that the deputies misrepresented the
results of their field tests, the record is replete with circumstantial evidence that the
deputies were motivated to obtain a search warrant by whatever means necessary. As
Judge Lucero’s separate opinion thoroughly and aptly explains, the deputies were “under
5
At trial, several factors could cause a jury to credit Bussell’s result over the
Crime Lab’s. While Bussell extensively filmed, photographed, and documented his
testing, the Crime Lab documented its testing in a single-paragraph report. Because
interpreting field-test results isn’t an exact science, a jury may prefer Bussell’s
interpretation and explanation of his results—which are supported by pictures and
video—to the Crime Lab’s written, barebones interpretation of its results. Or a jury
may conclude that Bussell’s credentials and expertise compare favorably to those of
Melinda Spangler, the Crime Lab’s technician. These matters of judgment are
inherently within the province of a jury. See Prager v. Campbell Cty. Mem’l Hosp.,
731 F.3d 1046, 1060 (10th Cir. 2013) (“Having reviewed the pertinent expert
testimony, we cannot say with confidence that ‘the evidence points but one way,’”
and the “question [is] one for the jury to weigh and ultimately decide.” (quoting
Wagner v. Live Nation Motor Sports, Inc., 586 F.3d 1237, 1244 (10th Cir. 2009))).
7
enormous pressure to [obtain a warrant] in time to carry out the raids on April 20.”
Lucero Op. 13.
This pressure may explain certain anomalies in the deputies’ investigation. For
instance, as Judge Lucero’s separate opinion notes, the deputies retrieved clumps of green
vegetation from the Hartes’ trash on three separate dates. “[O]n April 3, it was identified
as innocent plant material and discarded without testing. As the April 20 deadline
approached, however, . . . the [deputies] determined that this previously innocuous
material was now suspicious and should be tested for the presence of marijuana.” Id. at
12. And instead of conducting a thorough investigation—e.g., surveilling the Harte
residence, conducting background checks, or reviewing the Hartes’ utility usage—the
deputies did nothing more than search the Hartes’ trash.6
A jury may conclude that the same pressure that caused a shoddy investigation
also motivated the deputies to manufacture false test results. That evidence, in
conjunction with Bussell’s negative test result from the same tea leaves, creates a genuine
dispute of material fact as to whether the deputies lied about the field-test results.
Therefore, I would conclude that the district court erred in entering summary judgment
on the Hartes’ first Franks claim.
6
The Hartes assert that Deputy Burns’ failure to photograph the field test
results is additional evidence that he lied about the results. But as Judge Phillips’
separate opinion explains, Deputy Burns’ testimony establishes that it wasn’t his
practice to photograph test results in these circumstances. See Phillips Op. 16-17.
Nevertheless, the lack of photographs is significant for a different reason: it deprives
the deputies of the kind of evidence that would “blatantly contradict[]” the Hartes’
version of the facts. Scott v. Harris, 550 U.S. 372, 380 (2007). In the absence of such
evidence, this is not a case where a plaintiff “asserts that the sun rises in the west and
demands a jury trial to resolve the issue.” Olsen, 312 F.3d at 1313.
8
B
The Hartes’ second and third Franks claims, in contrast with their first claim, turn
on whether the deputies acted with “reckless disregard for the truth” in submitting the
warrant affidavit. Franks, 438 U.S. at 171. Specifically, the Hartes assert that the deputies
(1) misinterpreted the test results, construing negative results as positive; and (2)
recklessly disregarded the truth—that the leaves were tea, and not marijuana—by relying
solely on inaccurate field tests and failing to conduct a thorough investigation.
I would not decide whether these allegations amount to a constitutional violation
because the Hartes have failed to demonstrate that the asserted violations are clearly
established. See Swanson v. Town of Mountain View, 577 F.3d 1196, 1199 (10th Cir.
2009) (exercising discretion to first determine that the asserted right was not clearly
established). True, it has long been clearly established that a warrant is invalid if it
contains a “deliberately or reckless[ly] false statement,” so long as probable cause is
contingent on that statement. Franks, 438 U.S. at 165; see Clanton, 129 F.3d at 1154.
And in Part I.A, I concluded that the law is clearly established with respect to any
deliberately false statements the deputies made. That’s because every reasonable officer
would know that lying in a warrant affidavit is unconstitutional. See Clanton, 129 F.3d at
1154 (“[Plaintiff] has alleged that [defendant] knowingly and intentionally swore to the
veracity of [a third party’s] confession, while knowing that confession to be false: a
classic Franks violation.”). Because there’s little ambiguity as to what kind of conduct
constitutes lying, “existing precedent . . . placed the statutory or constitutional question
9
beyond debate,” and “[w]e do not require a case directly on point.” Ashcroft v. al-Kidd,
563 U.S. 731, 741 (2011).
The term “reckless,” on the other hand, is a legal term of art, like “excessive
force” or “exigent circumstances.” And the Supreme Court has repeatedly admonished us
that those terms don’t inform reasonable officers what type of conduct is prohibited. See,
e.g., Mullenix v. Luna, 136 S. Ct. 305, 308-09; Saucier v. Katz, 533 U.S. 194, 205 (2001)
(“It is sometimes difficult for an officer to determine how the relevant legal doctrine, here
excessive force, will apply to the factual situation the officer confronts. An officer
might . . . have a mistaken understanding as to whether a particular amount of force is
legal in those circumstances.”). Accordingly, when determining whether an officer has
recklessly disregarded the truth in a warrant application, “the result depends very much
on the facts of each case.” Brosseau v. Haugen, 543 U.S. 194, 201 (2004). The Hartes
must therefore “identify a case where an officer acting under similar circumstances as
[the deputies] was held to have violated the Fourth Amendment.” White v. Pauly, 137 S.
Ct. 548, 552 (2017)
The Hartes haven’t done so. Their second Franks claim alleges that the deputies
misinterpreted the test results and construed negative results as positive. But even if the
deputies did so, the Hartes don’t identify any cases establishing that this kind of conduct
is reckless.
Their third Franks claim fares no better. The Hartes allege that the deputies
recklessly disregarded the truth—that the leaves were tea, and not marijuana—by (1)
relying solely on inaccurate field tests and (2) failing to conduct a thorough investigation.
10
Regarding their first allegation, the Hartes cite a single case relating to inaccurate drug
tests: Eaton v. Lexington-Fayette Urban County Government, 811 F.3d 819 (6th Cir.
2016). There, the court held that “an utterly unreliable—read random—testing procedure
might well violate the Fourth Amendment.” Id. at 822. But even if a lone Sixth Circuit
case could define clearly established law in this circuit—a questionable proposition7—the
court in Eaton didn’t hold that the drug testing at issue there amounted to a constitutional
violation. See id. Accordingly, a reasonable officer reading Eaton wouldn’t know
whether relying on faulty field tests violates the Fourth Amendment.
As for their second allegation, the Hartes fail to cite a case establishing that an
inadequate investigation amounts to a reckless disregard for the truth. In fact, our cases
demonstrate quite the opposite: “The failure to investigate a matter fully, to ‘exhaust
every possible lead, interview all potential witnesses, and accumulate overwhelming
corroborative evidence’ rarely suggests a knowing or reckless disregard for the truth. To
the contrary, it is generally considered to be[]token negligence ‘at most.’” Beard v. City
of Northglenn, 24 F.3d 110, 116 (10th Cir. 1994) (quoting United States v. Dale, 991
F.2d 819, 844 (D.C. Cir. 1993)).
Because the Hartes’ second and third Franks claims don’t assert clearly
established constitutional violations, I would hold that the district court correctly entered
summary judgment on those claims.
7
In the absence of a controlling decision by the Supreme Court or the Tenth
Circuit, “the clearly established weight of authority from other courts must have
found the law to be as the plaintiff maintains.” Morris v. Noe, 672 F.3d 1185, 1196
(10th Cir. 2012) (quoting Klen v. City of Loveland, 661 F.3d 498, 511 (10th Cir.
2011)).
11
II
A
In light of my conclusion that one of the Hartes’ Franks claims survives summary
judgment, I would also conclude that the Hartes’ wrongful search and seizure claims
necessarily survive. See Poolaw v. Marcantel, 565 F.3d 721, 732 (10th Cir. 2009). And
because the district court entered summary judgment on the Hartes’ state-law claims
based, in part, on its conclusion that there were no Franks violations, I would reverse the
entry of summary judgment on the four state-law claims at issue on appeal.
B
In his separate opinion, Judge Phillips concludes that the deputies obtained a valid
search warrant. Phillips Op. 14-25. Nevertheless, he concludes that “the deputies violated
the Fourth Amendment’s reasonableness requirement by continuing to search [the Harte
residence] after probable cause had dissipated.” Id. at 42. Because I would hold that the
warrant was invalid under Franks, I would decline to decide whether the deputies
properly executed the warrant. But even if I agreed that the warrant was valid, I wouldn’t
reach the Hartes’ dissipation theory because they abandoned it on appeal.
In their opening brief, the Hartes devote a scant two paragraphs to their argument
that the deputies’ search exceeded the scope of the warrant. And nowhere in those
paragraphs do they argue—as they did in the district court, see Supp. App. 131-32—that
probable cause dissipated during the search. Instead, they assert that the deputies
exceeded the scope of the warrant by searching for evidence of general criminal activity.
See Aplt. Br. 44 (“[T]he deputies acted as if they possessed a general warrant and thus
12
violated the Fourth Amendment.”).8 Because the Hartes abandoned their dissipation
theory on appeal, I would decline to consider it. See Swanson v. Guthrie Indep. Sch. Dist.
No. I-L, 135 F.3d 694, 702-03 (10th Cir. 1998).
III
Regarding the Hartes’ excessive-force claim, I join Part II.C.2 of Judge Phillips’
separate opinion. See Phillips Op. 53-56. Because I agree that the law in this area isn’t
clearly established, I would decline to decide whether the deputies’ conduct amounts to a
constitutional violation. See Swanson, 577 F.3d at 1199.
IV
Finally, the Hartes assert that the department had two policies or customs that give
rise to supervisory liability under Monell v. Department of Social Services, 436 U.S. 658
(1978): (1) JCSO’s participation in Operation Constant Gardener; and (2) JCSO’s faulty
reliance on the KN reagent field tests. The Hartes argue that these policies or customs
caused the alleged constitutional violations. I disagree.
My limited resolution of the alleged constitutional violations simplifies this issue.
I would only reverse summary judgment as to the Hartes’ first Franks claim (and the
unlawful search and seizure that directly resulted therefrom). That violation is based on
the deputies’ alleged lies. But the Hartes haven’t established “a direct causal link”
8
Judge Phillips’ discussion of personal-use marijuana illustrates the
distinction between his analysis and the Hartes’ argument on appeal. The Hartes
tacitly concede that the deputies were permitted to search for personal-use marijuana
because the search warrant so authorized. Judge Phillips, in contrast, reasons that the
deputies “continued searching for evidence of a separate crime for which they did not
have probable cause—personal use of marijuana.” Phillips Op. 46.
13
between the policies or customs they assert and the deputies’ alleged lies. See Bd. of Cty.
Comm’rs v. Brown, 520 U.S. 397, 404 (1997).
JCSO’s participation in Operation Constant Gardener has no causal connection to
the violations. True, I reasoned above that the operation may be evidence of the deputies’
motivation to lie. But a “direct causal link,” id., requires more than that. In Brown, the
Court held that “[w]here a plaintiff claims that the municipality has not directly inflicted
an injury, but nonetheless has caused an employee to do so, rigorous standards of
culpability and causation must be applied to ensure that the municipality is not held liable
solely for the actions of its employee.” Id. at 405. Accordingly, “[a] plaintiff must
demonstrate that a municipal decision reflects deliberate indifference to the risk that a
violation of a particular constitutional or statutory right will follow the decision.” Id. at
411. And in this context, mere “but-for” causation is insufficient. Id. at 410. It’s therefore
consistent to hold that pressure from the operation may have motivated the deputies to
lie, yet didn’t cause them to lie for Monell purposes.
Nor does JCSO’s reliance on the KN reagent field tests have any causal
connection to the violations. If Deputy Burns obtained a warrant by lying about the field-
test results, the tests’ accuracy is irrelevant. Accuracy would matter only if the deputies
recklessly relied on false positives. In other words, JCSO’s alleged policy of relying on
inaccurate tests didn’t cause Deputy Burns to lie. Thus, I would affirm the district court’s
entry of summary judgment on the Hartes’ Monell claims.
14