Harte v. Board Comm'rs Cnty of Johnson, No. 18-3091 (10th Cir. 2019)Annotate this Case
Plaintiff Robert Harte (“Bob”) was a stay-at-home father; he kept a vegetable garden with his son as part of an education project. Plaintiff Adlynn Harte (“Addie”) enjoyed loose-leaf tea. Discards from Addie's tea would lead the family with no criminal history whatsoever (save a few parking tickets) to become embroiled in a marijuana sting. Armed with a battering ram, firearms, and a warrant, Sheriff’s Deputies detained Plaintiffs for over two hours early on an April 2012 morning after a SWAT-style raid. They found "wet marijuana plant material" discarded in the Hartes' garbage. Had police from the raid sent the discards to a crime lab, it would have been discovered the vegetation was not marijuana but loose-leaf tea. Deputies found the hydroponic tomato garden that was readily visible from the exterior of the home through a front-facing basement window. And after ninety minutes of extensive searching, a couple of the deputies claimed to smell the “faint odor of marijuana” at various places in the residence. A drug-detection dog showed up, but did not alert the officers to any other areas of the house requiring further searches. Before leaving the residence empty-handed, the deputies “strongly suggested” to the Hartes that their 13-year-old son was a drug user. Plaintiffs sued, challenging the original search warrant its allegedly negligent execution. The district court granted summary judgment to the deputy defendants. The Tenth Circuit Court of Appeals issued a one-paragraph per curiam opinion followed by three separate opinions, affirming in part, reversing in part, and remanding the case back to the district court. The lower court, Plaintiffs, and Defendants, all interpreted the Tenth Circuit's per curiam opinion differently. The issue presented in this case's second trip to the Tenth Circuit centered on how to proceed when two of the three panel judges shared some common rationale, yet ultimately reached different outcomes, and a different combination of two judges reached a common outcome by different rationales. The Court held that, in applying a fractured panel’s holding, the district court need only look to and adopt the result the panel reached. "To hold otherwise would be to go against the result expressed by two of the three panel members. That we cannot do." Accordingly, the matter was remanded again for further proceedings.