Kyle SwensonWashington Post
The police report would claim it all kicked off at 7:38 a.m., but Bob Harte later thought it had to be earlier.
His 7:20 a.m. alarm had just yanked him awake. Got to get the kids — a boy in seventh grade, a girl in kindergarten — ready for school. Then he heard, like a starter's pistol setting everything into motion, the first pounding on the front door of his home in Leawood, Kansas, a bedroom suburb south of Kansas City. It was thunderous. It didn't stop. Should I get up? Bob thought. Should I not? Sounded like the house was coming down, he would recall later.
Wearing only gym shorts, the stocky 51-year-old left his wife in bed and shuffled downstairs. The solid front door had a small window carved at eye-level, one-foot-square. As he approached, Harte saw the porch was clogged with police officers. Immediately after opening the door, seven members of the Johnson County Sheriff's Office (JCSO) pressed into the house brandishing guns and a battering ram. Bob found himself flat on the floor, hands behind his head, his eyes locked on the boots of the cop standing over him with an AR-15 assault rifle. Are there kids? the officers were yelling. Where are the kids?
"And I'm laying there staring at this guy's boots fearing for my kids' lives, trying to tell them where my children are," Harte recalled later in a deposition on July 9, 2015. "They are sending these guys with their guns drawn running upstairs to bust into my children's house, bedroom, wake them out of bed."
Harte's wife, Addie, bolted downstairs with the children. The Hartes' son put his hands up when he saw the guns. The family of four were eventually placed on a couch as police continued to search the property. The officers would only say they were searching for narcotics.
Addie had a thought: It's because of the hydroponic garden, she told her husband, they are looking for pot. No way, Harte said, correctly reasoning marijuana wasn't a narcotic. And all this for pot?
But after two hours of fruitless search, the officers showed the Hartes a warrant. Indeed, the hunt was for marijuana. Addie and Bob were flabbergasted — all this for pot?
"You take the Constitution, the Bill of Rights, all the rights you expect to have - when they come in like that, the only right you have is not to get shot if you cooperate," Harte told The Washington Post this week. "They open that door, your life is on the line."
The April 20, 2012, raid would not furnish JCSO with the desired arrests and publicity (a news conference had already been planned for the afternoon.) But it would cause considerable embarrassment. Not only were the Hartes upstanding citizens with clean records, they were also both former Central Intelligence Agency officers. And they were not weed growers. Rather, the quick-trigger suspicion of law enforcement had snagged on — it would later turn out — tea leaves and a struggling tomato plant.
The Hartes would eventually file a federal lawsuit against the county, city, and officers involved. And although a federal judge later threw out their claim, this week a three-judge panel of the U.S. Court of Appeals for the 10th Circuit ruled that the family could move forward in court. The decision has larger implications for Fourth Amendment litigation and legislation targeting badly behaving police officers.
The scorching judicial pronouncement blasted authorities for laziness and possible fabrication, the kind of overzealous police work that's become a sometimes deadly facet of the drug war. And despite the sustained effort of the Obama Administration to power down the law enforcement's more quixotic battles with illicit substances, Attorney General Jeff Sessions has promised to reprioritize marijuana investigations. The Hartes case is a textbook reminder how that can be dangerous.
"Our family will never be the same," Addie told The Post. "If this can happen to us, everybody in the country needs to be afraid," Bob added.
The events leading to the raid began a year earlier, according to court documents. Starting in 1997, Sgt. James Wingo of the Missouri State Highway Patrol started pulling surveillance shifts in the parking lots of hydroponic garden stores around the state. The project's logic, as Wingo explained in a 2011 letter to other law enforcement agencies, was that the stores "sell items that are consistently found in indoor marijuana growing operations." As customers came and went, Wingo would note their license plate information and enter names into a database.
In 2011, Wingo conceived of "Operation Constant Gardener." In his letter to law enforcement, Wingo stated he would "supply your agency with the names of these customers that are within your jurisdiction. This will give your agency two weeks to initiate a brief investigation" to "obtain probable cause for a search warrant." Then, per Wingo's plan, the various agencies would all strike on the same day — April 20. Wingo chose the timing due to the date's association with weed life: it was a date "celebrated in that community much as we celebrate Christmas." Wingo promised the operation would be a "significant media event."
The first series of "Operation Constant Gardener" raids were successful, with 30 agencies participating in the roundups. Fifty-two "indoor grows" were seized, according to court records. "The media coverage was 99% positive," Wingo noted in an email to the agencies.
There was demand for a repeat in 2012. Thomas Reddin, a sergeant with the Johnson County Sheriff's Office, emailed Wingo five months after the first raids asking about more joint operations on the upcoming April date. Wingo admitted in an email he didn't have enough "new contacts to justify a full throttle 420 operation." But the State Highway Patrolman offered to share the names he did have with the county. On March 20, 2012, JCSO received the names from the garden store surveillance.
Bob Harte was among them.
He had met his wife Addie in 1989 when both were working for the CIA. Ten years later, the family relocated to the Kansas City-area to raise a family. Addie worked as an attorney with a local financial group. Bob stayed home and raised the kids. Around 2011, he'd come up with the idea of trying to raise tomatoes, golden melons, butternut squash, and other vegetates in a hydroponic garden in the family's basement as an educational project with his son. The set-up was small, just two parallel tubes of PVC piping with plastic cups of seeds and dirt under the lamps. And to gather supplies for the project, on August 9, 2011, Bob and his two children piled out of the family's Kia minivan in the parking lot of a gardening store called Green Circle in downtown Kansas City.
Wingo was watching from a parked car and noted the license plate.
Eight months later, as law enforcement continued to search every inch of their house for drugs, Addie sat on the couch, trying to explain to her son what was going on. "I had nothing, how do you explain that? They know I can't protect them then," she told The Post this week. "Sitting in your home, having your Miranda rights read to you, it's absolutely surreal."
The raid turned up no marijuana. Before leaving the Harte house, police would only say the family had been targeted and surveilled because marijuana "seeds and stems" had been found on the property. The cops also suggested the couple's son was smoking pot and told the Hartes to take him to a pediatrician for a drug test.
In the year following the raid, Addie and Bob both struggled to come up with an explanation for why marijuana seeds and stems would have been at their home. The couple says they've never smoked pot themselves. There just wasn't a sensible reason for the raid. The unanswered question began to eat particularly at Bob; previously calm and carefree, he stopped sleeping and found himself mentally tripping down a rabbit hole of possible scenarios. Who were they dealing with here? he wondered. Was this a situation of corrupt cops or a setup? Or did a neighborhood kid drop some marijuana on their lawn walking by?
Addie, who's brother was a former New York City police officer, watched as her children became frightened just driving by the police station or seeing a patrol car on the road.
Finally, nearly a year after the incident, JCSO provided some documentation to the couple. Right away, they understood what had happened. On the official paperwork before the raid, investigators noted they had pulled the couple's trash before the incident as part of the investigation. But the reports didn't refer to "stems and seeds." They referred to a "wet glob vegetation."
"As soon as we heard that, we knew it was my tea," Addie told The Post, referring to a loose-leaf Teavana brand tea she drank regularly. "But it took over a year and $2,500 for a lawyer to figure out what had happened."
In fact, the pre-raid investigation was actually even more suspect.
Court records later indicated that after identifying the Hartes from Wingo's tip, JCSO conducted three trash pulls on the house. On the first, April 3, the officers noted wet "plant material" but determined it was "innocent." At the next two trash pulls — April 10 and April 17 — the same material was found again, but this time JCSO officers tested the material with a marijuana field test. The results came back positive, but the offices didn't take photos of the results or send the material to a laboratory for confirmation. Instead, based on the Wingo tip and the two positive drug tests, JCSO applied for and was granted a search warrant for the April 20 raid.
In November 2013, the couple filed a federal lawsuit against the county's board of commissioners, as well as the officers involved. The family claimed the raid was an unlawful search-and-seizure in violation of the 14th and Fourth Amendments. The suit, which asked for $7 million in damages, also argued law enforcement violated state laws including trespassing and abuse of power.
In December 2015, U.S. District Judge John W. Lungstrum threw out the family's case citing qualified immunity, the legal doctrine that shields officers from liability for otherwise lawful acts in the course of their duty. The Hartes appealed.
This week, the three judge panel — Carlos Lucero, Gregory Phillips, and Nancy Moritz — ruled against the state, sending the case back to district court. What's notable is that the 100-page decision pushed back hard against the claim police officers are immune from legal responsibility if they are just doing their jobs.
"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," Lucero wrote in his opinion. "The Fourth Amendment does not condone this conduct, and neither can I."
The judge went on to question the department's claim of probable cause for the raid — particularly on the issue of the supposedly "positive" field-tested tea leaves. "There was no probable cause at any step of the investigation," the judge wrote. "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."
Ed Eilert, a chairman of the Johnson County board of commissioners, did not respond to an email seeking comment on the decision.
The appellate win, if not successfully appealed, means the Hartes will be able to press their case in district court. Five years after the raid, the couple says they are committed to pushing forward especially if the challenge could impact the latitude law enforcement takes when conducting police work.
"The Fourth Amendment was not there when we needed it," Bob said. "We want to restore that for future generations."
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