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Harte v. Board of Commissioners of the County of Johnson County

United States District Court, D. Kansas

March 29, 2018

Adlynn K. Harte et al., Plaintiffs,
v.
Board of Commissioners of the County of Johnson County, Kansas et al., Defendants.

          MEMORANDUM & ORDER

          JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE.

         In April 2012, law enforcement officials from the Johnson County, Kansas Sheriff's Office obtained a search warrant to search plaintiffs' home for marijuana. That warrant was issued based on certain facts set forth in an underlying affidavit, including that plaintiff Robert Harte had made a purchase at a local hydroponic store and that wet, vegetative material subsequently obtained from plaintiffs' trash on two occasions field-tested positive for marijuana. On April 20, 2012, law enforcement officials executed the warrant, searched plaintiffs' home and detained plaintiffs for the duration of the search. No. evidence of marijuana in any form was found during the search.

         Thereafter, plaintiffs filed this lawsuit against the Board of County Commissioners of Johnson County, Kansas and eleven law enforcement officials from the Johnson County Sheriff's Office alleging violations of 42 U.S.C. § 1983 for unlawful search and seizure and excessive force in violation of the Fourth and Fourteenth Amendments. Plaintiffs also asserted a claim for municipal liability under Monell v. Department of Social Services, 436 U.S. 658 (1978) as well as state law claims of trespass, assault, false arrest, abuse of process, outrageous conduct causing severe emotional distress and false light/invasion of privacy.

         In December 2015, this court granted summary judgment in favor of defendants on plaintiffs' 1983 claims on qualified immunity grounds and on the merits of plaintiffs' state law claims. In July 2017, the Tenth Circuit affirmed in part and reversed in part this court's judgment in a fractured decision that resulted in three separate opinions. But in the end, a two-judge majority resolved each of the pertinent issues. Specifically, the Circuit affirmed this court's grant of summary judgment as to plaintiffs' excessive force and Monell liability claims and this court's grant of summary judgment to one defendant, Jim Wingo, a sergeant with the Missouri State Highway Patrol. The Circuit reversed this court's grant of summary judgment as to plaintiffs' unlawful search and seizure claims because it held that the defendants were not entitled to qualified immunity. The Circuit also reversed the grant of summary judgment as to the four state law claims pursued by plaintiffs on appeal-trespass, assault, false arrest and outrageous conduct causing severe emotional distress. With respect to plaintiffs' unlawful search and seizure claims, this court subsequently held that the Circuit's decision left only one § 1983 claim for trial-a claim based on the limited theory that defendants Blake, Burns and/or Reddin lied about the results of the field tests conducted in April 2012 such that the warrant was invalid and the resulting search and seizure was therefore unconstitutional.

         Plaintiffs' remaining claims were tried to a jury beginning on December 4, 2017. The jury returned its verdict on December 12, 2017 and found in favor of defendants on all issues and claims. Specifically, the jury found that plaintiffs failed to prove by a preponderance of the evidence that any of the defendants who participated in obtaining the warrant (defendants Blake, Burns and Reddin) lied about the results of any field tests to obtain the warrant. Under the Circuit's decision and the court's instructions to the jury, this finding was fatal to plaintiffs' § 1983 claim. The jury also found that probable cause did not dissipate at any time during the search of plaintiffs' residence. Consistent with Kansas law and the court's instructions to the jury, this finding was fatal to plaintiffs' trespass and false arrest claims and obviated the need for the jury to otherwise resolve plaintiffs' trespass and false arrest claims. Finally, the jury found that plaintiffs failed to prove by a preponderance of the evidence their claims of assault or outrageous conduct causing severe emotional distress against any defendant.

         This matter is now before the court on plaintiffs' renewed motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b) (doc. 467) and plaintiffs' motion for a new trial pursuant to Federal Rule of Civil Procedure 59(a) (doc. 470). Plaintiffs' motion for judgment as a matter of law is limited to just two claims asserted by plaintiffs and relates only to one issue in the case-the dissipation of probable cause. Because that motion misconstrues the Circuit's earlier decision in this case and asks the court to weigh the evidence and make credibility determinations, it is denied. Plaintiffs' motion for a new trial is more expansive and asserts errors beginning with the jury selection process and ending with the court's instructions to the jury after the close of the evidence. Discerning no error at any point during the trial of this case, the court denies that motion as well.

         Judgment as a Matter of Law

         Plaintiffs have renewed their motion for judgment as a matter of law on their trespass and false arrest claims. Plaintiffs' argument in support of their motion rests on their contention that the Tenth Circuit in this case held, as a matter of law, that probable cause dissipated as soon as the deputies learned that plaintiffs had no marijuana grow operation and, more specifically, as soon as the deputies discovered a tomato garden in plaintiffs' basement. According to plaintiffs, then, they are entitled to judgment as a matter of law because no reasonable jury could have concluded based on the evidence at trial that defendants had probable cause, for the duration of their two-and-a-half hour search, to believe that a marijuana grow operation existed in plaintiffs' home. As will be explained, the court disagrees. Contrary to plaintiffs' arguments, the Circuit's statements about dissipation are not legal conclusions that were binding on the jury; a reasonable jury could conclude based on the evidence at trial that probable cause continued for the duration of the search because the deputies had reason to believe for the duration of the search that evidence of a past grow operation existed in plaintiffs' home; and, in any event, plaintiffs would not be entitled to judgment as a matter of law on their trespass and false arrest claims in light of remaining factual disputes that would require resolution by a jury. The motion is denied.

         In resolving plaintiffs' renewed motion for judgment as a matter of law, the court draws all reasonable inferences in favor of defendants, the nonmoving parties. See In re Cox Enterprises, Inc., 871 F.3d 1093 1096 (10th Cir. 2017). The court may grant judgment as a matter of law only when “a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.” See id. (quoting Fed.R.Civ.P. 50(a)(1)). Stated another way, “judgment as a matter of law is appropriate only if the evidence points but one way and is susceptible to no reasonable inferences which may support the nonmoving party's position.” Id. (citations and quotations omitted).

         The court begins with plaintiffs' contention that the Circuit held, as a matter of law, that probable cause dissipated as soon as the deputies learned that plaintiffs had no marijuana grow operation and, more specifically, as soon as the deputies discovered a tomato garden in plaintiffs' basement. According to plaintiffs, the Circuit's conclusion as to the specific point at which probable cause dissipated was binding as the “law of the case.” The court disagrees. To be sure, Judge Phillips makes numerous statements about the dissipation of probable cause without making reference to the summary judgment standard, but those statements are consistent with the procedural posture of the case on appeal-this court's grant of summary judgment on qualified immunity. While plaintiffs highlight that Judge Phillips' opinion does not contain the “magic” language typically utilized on summary judgment concerning reasonable inferences and the existence of material factual disputes, that fact is not surprising given that such questions arise differently in the qualified immunity context than in other settings. See Pauly v. White, 874 F.3d 1197, 1224 (10th Cir. 2017) (the “question of whether a genuine issue of material fact exists is largely irrelevant” in qualified immunity analysis and arises if, and only if, the plaintiff first demonstrates that the defendant's alleged conduct violated clearly established law) (Moritz, J., concurring) (emphasis added); see also Gutteridge v. Oklahoma, 878 F.3d 1233, 1238 (10th Cir. 2018) (when a defendant asserts qualified immunity at summary judgment, the burden shifts to plaintiff, who “must clear two hurdles” to defeat the motion, including demonstrating that the facts alleged show a constitutional violation). The Circuit, then, was analyzing only whether, if one assumes the validity of plaintiffs' alleged facts, plaintiffs had demonstrated a constitutional violation. Berglund v. Pottawatomie County Bd. of County Comm'rs, 350 Fed.Appx. 265, 268 (10th Cir. Oct. 22, 2009); Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009) (in the qualified immunity context the Circuit generally accepts the facts as the plaintiff alleges them). Because the evidence presented at trial was different from the record reviewed by the Circuit in the context of its qualified immunity analysis, [1] the Circuit's decision concerning the timing of any dissipation of probable cause was not binding on the jury as the law of the case. See Vaughn v. Ruoff, 304 F.3d 793, 796 (8th Cir. 2002) (Circuit's earlier opinion on qualified immunity issues in which Circuit described possible procedural due process violation was not binding law of the case); Oladeinde v. City of Birmingham, 230 F.3d 1275, 1289-90 (11th Cir. 2000) (Circuit's earlier opinion on qualified immunity issues presented no binding conclusion of law but simply allowed case to proceed to jury, where new and substantially difference evidence was introduced)

         In any event, even assuming that probable cause dissipated when the deputies learned that no evidence existed of a marijuana grow operation, a reasonable jury could have found that probable cause did not dissipate at any time during the search of plaintiffs' home. Viewed in the light most favorable to defendants, the evidence at trial was sufficient to demonstrate that the searching deputies, throughout the duration of the search, had a reasonable basis to believe that a marijuana grow operation existed in the home. While the searching deputies realized within twenty or thirty minutes of entering the home that no active grow operation existed in the home, ample evidence was presented to the jury that the searching deputies had a reasonable basis to believe that evidence of a dismantled grow operation or evidence of recently harvested marijuana existed in the home.

         As Judge Phillips noted in his separate opinion in this case, to determine whether and when probable cause dissipated, it is necessary to examine “what the deputies knew and when.” Not surprisingly, the evidence about “what the deputies knew and when” was substantially different at trial than it was before the Circuit. In concluding for purposes of the qualified immunity analysis that probable cause dissipated at some point prior to the end of the search, Judge Phillips appropriately credited plaintiffs' evidence that, prior to the search, the deputies knew only that Mr. Harte had shopped at the Green Circle on one occasion and had received two positive field test results on wet, green vegetative material pulled from plaintiffs' trash. At trial, however, Deputy Blake testified, based on his experience with narcotics investigations, to his knowledge that the Sheriff's Department-for good or for ill-had engaged in numerous successful narcotics investigations that started with tips from surveillance conducted at the Green Circle on individuals purchasing items for hydroponic grows used to grow marijuana. According to Deputy Blake, then, this knowledge-in addition to his knowledge about the two positive field tests and the Green Circle tip-was in his mind when his search team discovered the hydroponic garden in plaintiffs' basement.

         Judge Phillips concluded, again crediting plaintiffs' proffered evidence, that probable cause dissipated based on “what the deputies learned early on in the search.” That evidence included only two empty cups in the hydroponic garden; a finding that Deputy Shoop “helped in the search;” and Deputy Shoop's “admission” that the deputies knew within 15 or 20 minutes that the deputies “wouldn't have a massive grow operation, as we had speculated.” Judge Phillips also emphasized in reaching his conclusion that the deputies “don't explain why they needed so much time” to conclude that there was no active or dismantled grow operation. But at trial, the jury heard that there were 9 empty cups in the garden; that while Deputy Shoop agreed that the deputies knew within 20 minutes that they would not find a “massive” grow operation, he nonetheless believed for at least 90 minutes that they would find evidence of a dismantled grow operation; and that Deputies Blake and Kilbey were searching for evidence of a dismantled grow or harvested marijuana until the conclusion of the search. The jury also heard an explanation from the deputies as to “why they needed so much time” to conduct that search- the size of the house; the fact that the house was messy; and the fact that harvested marijuana could be hidden almost anywhere. The jury, then, clearly had access to much different evidence than what the Circuit had before it and the jury was entitled to weigh that evidence in finding that probable cause did not dissipate during the search.

         The jury heard additional testimony about what the searching deputies knew at various points in the search. Deputy Shoop testified that his first impression when he saw the hydroponic garden in the basement was that it was a “non-active” marijuana grow and that plaintiffs were “between a harvest.” Deputy Shoop testified that the amount of time, effort and money invested in the garden, coupled with the fact that several empty pots were found in the garden, led him to believe that the searching deputies would find some kind of processed marijuana in the house that had been harvested from the grow operation. Deputy Farkes also testified, based on his experience, that the empty cups from the hydroponic garden indicated to him (coupled with his knowledge that material from the house had tested positive for marijuana) that someone had harvested marijuana from the grow operation in the basement and stored the marijuana somewhere in the house.[2] Similarly, Deputy Blake testified that, in his mind, the significance of observing the hydroponic garden with at least 9 empty pots indicated to him that someone had harvested marijuana and moved it somewhere else in the home, which caused the deputies to continue searching the home. According to Deputy Blake, harvested marijuana could be hidden almost anywhere. Under these facts, coupled with evidence that these deputies knew that vegetative material from the house had tested positive for marijuana, a reasonable jury could conclude that probable cause did not dissipate prior to the end of the search and that the deputies were reasonably still searching for evidence of a past grow operation during that time.

         Even plaintiffs concede that defendants' evidence supports the conclusion that 90 minutes into the search, the deputies still had probable cause to believe that evidence of a past grow operation existed in the home. But they contend that probable cause dissipated at the 90-minute mark and that it was unreasonable for the jury to conclude that probable cause continued after the 90-minute mark. This argument is based exclusively on the testimony of Deputy Shoop. Indeed, Deputy Shoop's testimony could be construed as evidence that the deputies, at roughly the 90-minute mark, “switched” from a search for evidence of a past grow operation to a search for evidence of “personal use” marijuana. But Deputy Shoop was, at most, offering his views based on a limited perspective. He was the photograph/video officer during the execution of the warrant. The jury could reasonably have credited the more specific testimony of Deputies Blake and Kilbey on this point. Both of these defendants personally searched the home and both testified that, for the duration of the search, they were searching for marijuana in “all forms, ” including but certainly not limited to personal use marijuana. On this motion, the court may not credit the testimony of Deputy Shoop over the testimony of other witnesses.

         Finally, plaintiffs have not demonstrated that they are entitled to the relief they seek- judgment as a matter of law-even if the court accepted their argument that no reasonable jury could have concluded that probable cause did not dissipate during the search of plaintiffs' home. Based on the format of the verdict form, the jury's threshold finding that no dissipation occurred obviated the need for the jury to address plaintiffs' trespass and false arrest claims. Consistent with the court's directions on the verdict form, the jury “skipped” over the trespass and false arrest questions based on their finding that no dissipation occurred. Plaintiffs did not object to the approach utilized by the court in drafting the verdict form. Had the jury found dissipation, then the jury would have continued to resolve the trespass and false arrest claims as to each plaintiff and each defendant. Plaintiffs do not suggest that no factual disputes existed as to these claims and, in fact, the record at trial clearly reflects such disputes.

         With respect to plaintiffs' trespass claims, defendants' evidence was sufficient to support a reasonable inference that the continued presence of the deputies in plaintiffs' home after the 90-minute mark was justified (or even, in the absence of evidence that plaintiffs asked the deputies to leave, that plaintiffs consented to it) for the reasonable amount of time that it took for deputies to complete specific tasks necessarily associated with executing the valid warrant, such as taking a “post search” video of the house (to establish that deputies were leaving the home in the same condition in which it was found) and completing paperwork.[3] With respect to plaintiffs' false arrest claims, defendants' evidence demonstrated that plaintiffs were free to leave the home, a finding that would have been fatal to plaintiffs' false arrest claims had the jury made it. These disputes, then, would have to be resolved by a jury. Judgment as a matter of law is not appropriate.

         Motion for New Trial

         Rule 59(a) authorizes a court to grant a new trial on all or some of the issues for “any reason for which a new trial has heretofore been granted in an action at law in federal court.” Fed.R.Civ.P. 59(a). Plaintiffs' motion for a new trial is based on several asserted errors, including the court's denial of four for-cause challenges during jury selection; the court's failure to instruct the jury that probable cause dissipated when the defendants learned that plaintiffs had no marijuana grow operation in their home; the court's refusal to admit into evidence communications between defendants and their counsel after the attorney-client privilege was waived; the court's refusal to permit plaintiffs to present evidence of their “general warrant” theory to the jury; and improper comments allegedly made by defense counsel to the jury concerning plaintiff's expert witness. Discerning no error relating to any of these issues, the court denies the motion in its entirety.

         A. Jury Selection

         Plaintiffs first assert that three prospective jurors and one seated juror should have been deemed actually and/or impliedly biased and struck for cause. The court denied plaintiffs' for-cause challenge as to each of these jurors and plaintiffs utilized their peremptory challenges to strike three of them.[4] The evaluation of a juror's actual bias is based upon “determinations of demeanor and credibility that are peculiarly within a trial judge's province.” Zia Shadows, LLC v. City of Las Cruces, 829 F.3d 1232, 1243 (10th Cir. 2016). Actual bias is a question of fact reviewed only for clear error, United States v. Powell, 226 F.3d 1181, 1188 (10th Cir. 2000), and is shown by the “express admission of the juror of a state of mind prejudicial to a party's interest.” United States v. Brooks, 569 F.3d 1284, 1289 (10th Cir. 2009). The trial court's function in assessing actual bias is to rely on its own evaluation of “demeanor evidence and of responses to questions” to reach a conclusion as to impartiality and credibility. Powell, 226 F.3d at 1188.

         Implied or presumed bias is a legal determination dependent “on an objective evaluation of the challenged juror's experiences and their relation to the case being tried.” Zia Shadows, 829 F.3d at 1243 (quotations and citations omitted). A “finding of implied bias is appropriate where the juror, although she believes that she can be impartial, is so closely connected to the circumstances at issue in the trial that bias is presumed.” Id. at 1244. The Tenth Circuit has held that the implied-bias doctrine “is not to be lightly invoked, but must be reserved for those extreme and exceptional circumstances that leave serious question whether the trial court subjected [a party] to manifestly unjust procedures resulting in a miscarriage of justice.” Id. (quoting Powell, 226 F.3d at 1188). Accordingly, the Circuit requires claims of implied bias to meet a “high threshold.” Id. (quoting Powell, 226 F.3d at 1188).

         1. Actual Bias

         Plaintiffs assert that prospective Juror 01-0026, who was struck by plaintiffs on a peremptory challenge, was actually biased against them. During voir dire, Juror 01-0026 related what could be construed as a negative experience that she had with law enforcement nearly 20 years ago. When the court asked Juror 01-0026 whether that experience would affect her ability to be fair and impartial, Juror 01-0026 responded “I would hope not.” When pressed by the court about her ability to be fair and impartial, Juror 01-0026 further responded “As a matter of fact, I actually am in more support of the police than not.” Based on this statement, and certain additional remarks made by Juror 01-0026 during plaintiffs' counsel's voir dire, plaintiffs maintain that Juror 01-0026 maintained an actual bias and should have been struck for cause.

         During his portion of the voir dire questioning, plaintiffs' counsel asked Juror 01-0026 why she felt “more in support of the police than not.” Juror 01-0026 responded as follows:

Quite honestly, I believe that the police have a very unenviable position now. They are the people we go to when we have problems. They're the people that step in whenever there's any issue at all that we can't take care of and yet they are the first to be accused of all kinds of problems, issues, as evidenced in every- almost every city across the country. So, I feel-I believe that we are-that they get a bum rap for a job that is extremely difficult.

         Shortly thereafter, in response to plaintiffs' counsel's question as to whether his clients would “start out a little behind the police simply because they're accusing the police of doing something wrong, ” Juror 01-0026 stated:

I would hate to be in their spot and listen to someone say this, but-but if I'm going to be honest, I believe that actually is probably true. But, again, I don't think that I would-I would-I would like to believe that I would be able to listen to what is being evidenced and make a decision based on that.

         At that juncture, the court explained to Juror 01-0026 and the rest of the panel that the key issue for purposes of jury selection was whether each prospective juror, including Juror 01-0026, would be able to put aside any positive feelings about law enforcement and listen to the evidence in the case and decide the case “solely on the evidence and the law.” In response to that question, Juror 01-0026 responded: “I believe I could-being truthful about how I feel, I still believe that I would be able to render a decision based on facts.”

         Despite Juror 01-0026's expression of positive views about law enforcement, the court is persuaded-as it was at trial-that Juror 01-0026 was not prejudiced against plaintiffs or biased in favor of defendants. Significantly, Juror 01-0026 also expressed that she supported the individual rights of citizens under the Constitution and she affirmed to the court that she would be able to decide the case based on the evidence presented in the court room rather than on her general views about law enforcement or the constitutional rights of citizens. Juror 01-0026 unequivocally testified to her belief that she could be an impartial juror and the court found as a matter of fact that Juror 01-0026, if selected, would render an impartial verdict on the evidence. Nothing in plaintiffs' submissions suggests to the court that it should not have accepted Juror 01-0026's clear statements of impartiality.[5]

         Plaintiffs also contend that potential Juror 01-0072, whom plaintiffs also struck, harbored an actual bias against plaintiffs and in favor of defendants. They assert four separate bases for this argument, three of which completely lack merit and will be addressed in short order. Plaintiffs assert that Juror 01-0072 was somehow biased because he was a reserve police officer years ago in Ottawa, Kansas; he was experiencing problems in a personal relationship that caused him to doubt his ability to focus; and he expressed a belief that marijuana was “not a good thing.” Plaintiffs' counsel did not follow up with Juror 01-0072 on any of these topics. Thus, there is nothing in the record about whether Juror 01-0072's experience as a reserve police officer was positive or negative that might indicate a bias one way or the other. The court confirmed with that juror, however, that his experience would not impair his ability to decide the case based upon the evidence and the law. The court also confirmed with Juror 01-0072 that his relationship problems (which, of course, do not reflect a bias of any kind) had not impaired his ability to participate in the voir dire process and would not interfere with his ability to serve on the jury if selected. Finally, with respect to the statement about marijuana, the court explained to Juror 01-0072 that the case was “not about whether marijuana is good or bad” and asked Juror 01-0072 whether he could “decide this on the evidence and the law despite the fact that you don't like marijuana?” Juror 01-0072 responded that he could do so. Having had the opportunity to view the demeanor of Juror 01-0072 and to listen to his responses on these issues, the court has no doubts about Juror 01-0072's ability to render an impartial verdict if he had been selected to serve.

         Plaintiffs' primary concern with Juror 01-0072 is that he managed an appliance and electronics company that supplies various products to offices in Johnson County, including the Sheriff's Department. The court asked the juror whether “anything about that . . . would get in the way of your deciding this case just on the evidence and the law?” Juror 01-0072 responded, “I guess in total honesty, it would be iffy. I guess maybe the only way I could put it is business is business and stuff. So it could be difficult, yes.” The court then asked the juror whether that business relationship would affect his deliberations and whether he would be “sitting there thinking I could get in trouble with my business.” To that question, Juror 01-0072 responded, “Maybe, not necessarily, no.” The court then asked three separate follow-up questions which confirmed Juror 01-0072's impartiality:

Q: Is it something that if the evidence in this case persuaded you that the Hartes had met their burden of proof, as I'll describe that to you, to prove what I will explain to you the law would require for them to obtain a verdict, would you be able to render a verdict in favor of the Hartes ...

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