Harte v. Board of Commissioners, Johnson County Kansas, 2017 WL 3138494 (July 25, 2017) (KS): Although a civil case, for our purposes, Judge Lucero’s discussion of Franks v. Delaware is notable. He writes that if there is substantial evidence to support a deliberate falsehood or reckless disregard for the truth and the exclusion of these statements would undermine probable cause, then the warrant is invalid. Recklessness is inferred from an omission of facts which is critical to the probable cause analysis.

Here, the officers rummaged through the family’s garbage three times. On each occasion they found moist loose-leaf tea which at first did not arouse their suspicion. Allegedly, the 2d and 3d time they found it, an officer “field-tested” it and then claimed in the search warrant affidavit that it tested “positive” for THC. Judge Lucero concludes the officers “fabricated the ‘positive’ field tests.” There was no reason to “accept the word of a government agent . . . when that agent had every motive and opportunity to dissemble.” (The officers were under pressure to put something together by April 20 to satisfy an already drafted press release lauding the success of numerous drug raids in the county.

Although the officer who tested the tea had a camera with him, he did not photograph the test results. Also the test itself precludes the conclusion that the results were “positive”. This is so because the test package says “these tests are only presumptive in nature . . . [and] will give you probable cause to take the sample in to a qualified laboratory for definitive analysis.” Thus, only an analytical lab test as the packaging directs could “yield a final, positive result.” The officers never sent the tea to a lab, so there was no evidence of positive test results. Judge Lucero says the officers’ conduct “gives rise to a reasonable inference of a classic Franks violation.”