A tea cup full of marijuana is displayed at The Hive Co-Op Cannabis Club in Lafayette, Colorado. (Jeremy Papasso, Daily Camera file)

SWAT-style search for marijuana over tea leaves and garden supplies heads to court

WICHITA, Kan. — A federal trial that begins Monday will focus on whether police lied about the results of tests on discarded tea leaves found in a Kansas couple’s trash to get a search warrant ahead of a SWAT-style raid on their home in search of marijuana.

Robert and Adlynn Harte are seeking $5 million for economic losses, emotional pain, distress and humiliation and an additional $2 million in punitive damages in response to the 2012 raid on their Leawood home.

Authorities targeted the Hartes, both former CIA employees, after seeing Robert Harte and his two children leaving a store that sold hydroponic gardening equipment, which is sometimes used to grow marijuana. Johnson County sheriff’s deputies found the brewed tea leaves in trash they collected from a curbside receptacle outside their home. An affidavit claimed field tests indicated the leaves were marijuana.

Officers armed with assault rifles raided the couple’s home on April 20, 2012. The calendar day is significant because April 20 marks an annual celebration among users of all things cannabis. On that day in Kansas, law enforcement authorities planned a series of marijuana raids dubbed “Operation Constant Gardener” capped by a news conference. But at the Hartes’ house, the swat team found only some scrawny vegetable plants the family was growing indoors. The Hartes sued Johnson County officials in 2013.

A federal judge dismissed the Hartes’ lawsuit in 2015, but the 10th U.S. Circuit Court of Appeals reinstated parts of it in July. Appeals Judge Carlos Lucero called the raid an unjustified government intrusion based on nothing more than junk science, an incompetent investigation and a publicity stunt.

“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,” Lucero wrote.

Law enforcement officials enjoy a high level of immunity from liability, and many of the Hartes’ claims have been dismissed.

The key issue left for the trial is whether one or more officials lied about the positive field test results on the wet leaves, which would make the warrant invalid and the resulting search unconstitutional. The defendants facing trial on that claim are Johnson County deputies Mark Burns, Edward Blake and Thomas Reddin.

The Hartes’ attorneys have asked the judge to let them brew tea for jurors so they can determine themselves that wet tea leaves are different in appearance and smell than marijuana.

In addition, jurors will be asked to decide whether deputies used unreasonable force in executing the warrant, whether the deputies’ decision to remain in the Hartes’ home and detain them after it became clear there was no longer any probable cause constituted trespass and false arrest, and whether the deputies’ forceful entry into the house caused the Hartes to fear bodily harm and therefore constituted assault. Defendants facing trial on those claims are the Johnson County Board of Commissioners, Sheriff Frank Denning and several deputies.

U.S. District Judge John Lungstrum is presiding over the trial in the federal courthouse in Kansas City, Kansas.