Policing: Dangerous Missouri Tomatoes

By: Mike McDaniel    It is fashionable these days to broadly attack “the police,” as though police agencies are monolithic, walking in lockstep, working under the same polices, laws and conventions. While all such agencies share certain similarities, such as being sworn to enforce the laws of their jurisdiction and uphold the Constitution, there are enormous differences. An outrageous, and arguably illegal action by one officer may reflect nothing more than that officer’s single mistake. On the other hand, the murders committed by Las Vegas Police do reflect on a very sick policing culture affecting an entire agency.

Let us review a recent case in Missouri, gentle readers, and see what it has to teach us about policing. The Chicago Tribune reports:

“[Bob Harte’s] 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 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 who is Bob Harte? A dope dealer? A terrorist?  Actually, a former CIA employee.

“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.”

The Hartes soon find themselves, in their nightclothes, under guard on a couch in their living room while the heavily armed police began to tear their home apart. They were trying to grow tomatoes in their basement. That couldn’t be why the police were there–could it?

“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.”

Harte is certainly right about that. When a SWAT team stages a raid, whatever information they’ve been given by their superiors is all they know about why they’re there. In a very real sense, they’re like guided missiles with only targeting programming. They might believe a normal, harmless family to be violent criminals, and lives are indeed 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 filed a lawsuit which eventually wound its way to the 10th circuit Court of Appeals:

“…a three-judge panel on 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.”

What led the police to the Hartes home that morning?

“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 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.”

CATO Institute, botched SWAT raids circa 2014

Competent police officers should have had nothing to do with Wingo’s scheme. Drug cases, particularly those that are successful against major criminal conspiracies, take time. They cannot be done on a predetermined schedule. They require the use of informants, controlled buys, undercover agents, countless hours of surveillance, careful record keeping, hundreds of photos and hour and hours of video. Even so, many agencies did participate, and apparently had some success, but the article does not explain what “success” meant. Did they seize bales of pot? Pounds? A few plants? A baggie or two?

“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.”

Harte was not caught up in that initial PR ploy, however, the local sheriff’s office got information from Wingo’s surveillance the following year, and Harte was one of those purchasing hydroponic equipment. Here’s where things become absurd:

“[Harte] 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.”

Notice, gentle readers, how little hydroponic equipment–according to the court’s decision, only a single bag–was purchased, and only on a single occasion. Professional police agencies focus only on major growing operations, carefully identifying people that purchase sufficient equipment to indicate they’re not casually growing a few flowers or veggies. Such buys take place repeatedly over time. Another major element of such investigations is carefully monitoring water and electricity use of suspected growers. If they’re using significantly more of both than would normally be expected, that’s a potential sign they’re up to no good. None of that was done in the Harte investigation.

“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.”

The Hartes, straight arrows, were stunned. What could have led the police to their home? “Seeds and stems” found on their property? Even if that were true, absent some specific way to tie those fragments to the Hartes, no judge in their right mind would authorize a search based on that alone.

“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.”

Do you see it coming, gentle readers?

“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.”

It gets better:

“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.”

No competent judge should have authorized a warrant based on those presentations. Drug field tests are notoriously unreliable, producing frequent false positives. Competent officers always have the material professionally tested before proceeding with charges or using the materials as probable cause for a search warrant. In fact, the manufacturer’s instruction cautioned that any positive results must be professionally confirmed.

The Harte’s initial lawsuit was dismissed, but the 10th Circuit reinstated it:

“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.”

And here we learn of another significant fault in the police investigation. The officers ignored the manufacturer’s direction to independently confirm any positive result, and also ignored professional police practice. The Appeal’s Courts decision (available here) is the kind of rebuke that should cause the Sheriff’s Office involved to make major changes in policy and personnel. It represents failure throughout every portion of the criminal justice system.

Failure #1: Wingo, the Highway Patrolman, should have differentiated between small, incidental and obviously lawful purchases of hydroponic equipment, and the repeated, large and significant purchases that could reasonably spark further investigation.

Failure #2: Law enforcement is not a PR exercise to be run on a press release schedule. Wingo’s superiors should never have allowed such a thing to occur. Under their self-imposed schedule, they had only four weeks to manufacture probable cause in time for their pre-scheduled press conference.

Failure #3: Individual law enforcement agencies should have carefully vetted the information provided by Wingo to determine if it was legitimate. They should have declined to play PR games with lives.

Failure #4: The local Sheriff’s office should have taken the time to do the investigation right. They should have kept track of the Harte’s utility records. That alone would have prevented their raid. They absolutely should have confirmed the field test results before seeking a search warrant. They did not conduct surveillance, look for fans or other signs of a significant drug operation, nor did they even bother to look in a large, front facing basement window that would have revealed the entire basement and its contents to them. They did not bother to conduct background checks of the Hartes, whose records were clean.

Failure #5: Whoever supervised the deputies handling the Harte case was obviously incompetent. They should have demanded utility records, and records of exactly what equipment the Hartes purchased, how often and when. They should have ensured proper testing was done on the substance they thought was pot. And most of all, they should have reviewed the search warrant affidavit before it was submitted to a judge. From the opening of the 10th Circuit Panel’s Decision:

“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 with your children are at home, and keep the entire family under armed guard for two and a half hours while concerned resident of your quiet, family-oriented neighborhood wonder what nefarious crime you have committed. This is neither hyperbole nor metaphor–it is precisely what happened to the Harte family in the case before us on appeal.”

Perhaps the hierarchy of the Sheriff’s Office learned something. This again, from the decision, reads like a bad TV cop show episode:

“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 feature 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.”

Failure #6: The judge authorizing the search warrant should be reeducated on the Fourth Amendment. There was no probable cause for the search. They should have denied the warrant. In fact, the Circuit Court concluded the deputies, under time pressure to make the raid in time for the press conference, lied; they made up the positive field tests.

Failure #7: Within 15-29 minutes, the deputies knew there was no marijuana present, and the Hartes were only growing a small number of tomato plants. They knew they would find no marijuana. The on-scene supervisor should have immediately called off the search, apologized and left, but they carried on, widely exceeding the scope of the warrant, for two and a half hours.

FINAL THOUGHTS: The entire basis for the search was limited to a one-time buy of a single bag of gardening supplies, and several searches of the Harte’s garbage, combined with two field tests, which even the manufacturer said could not be trusted as conclusive. No rational, professional police officer should imagine this was anything close to sufficient probable cause, to say nothing of a judge.

The Hartes will almost certainly end up wealthy as a result of the serial mistakes of the Sheriff’s Department. Unfortunately, that agency will likely roll into a defensive ball and refuse to learn any lessons from this unnecessary debacle, as is the case with far too many agencies in similar situations.

There is reason to be wary of the Johnson County, Missouri Sheriff’s Department, and the Missouri State Highway Patrol, and this kind of thing is more common that anyone would like to acknowledge, but it does not indict all police everywhere. In many respects, we very much deserve the police we have.

For additional information on the nature of policing, the dangers of SWAT raids, and similar issues, Visit this five part-series from 2014.  The link is to the fifth article, which has links to the preceding four.

Mike’s Home blog is Stately McDaniel Manor.