DENVER – A Kansas family asked a 10th Circuit panel Wednesday for a new trial in their lawsuit against police officers who ransacked their home after mistaking a hydroponic tomato garden for an illegal marijuana operation.

Former CIA agents Adlynn and Robert Harte first sued Johnson County, Kansas, along with a dozen of sheriff’s officers who raided their home on April 20, 2012, after mistaking loose-leaf tea they found in the family’s trash as evidence of a marijuana grow. The couple’s 7-year-old daughter and 13-year-old son watched as officers searched for evidence in their backpacks and underwear drawers, according to the family’s lawsuit.

Neither the officers nor a drug-sniffing police dog found any marijuana in the family’s home – only tea and hydroponic tomatoes.

In 2017, the 10th Circuit reversed a federal judge’s finding in favor of the officers. U.S. Circuit Judge Carlos Lucero wrote the scathing ruling, blasting the officers’ efforts to hide behind qualified immunity and warning “law-abiding tea drinkers and gardeners beware.”

On remand, however, a unanimous jury also found in favor of the officers and denying the Hartes’ request for $7 million in damages.

The family appealed again, asking for a new trial. On Wednesday, their attorney Allan Pixton of Kirkland & Ellis in Chicago told the panel that in addition to an all-white jury stacked with members biased toward law enforcement, the judge in the case “incorrectly instructed the jury on the scope of the warrant’s authority.”

“This is not your typical case,” Pixton said. “Once the deputies knew there was no marijuana in the house, they just kept searching and probable cause dissipated as soon as they saw a tomato garden.”

When officers failed to find marijuana plants, they searched instead for personal-use marijuana and eventually broadened their search to look for any criminal activity.

“I do need this ask this question: Is there any evidence on which it could be substantiated that probable cause remained?” Lucero asked Johnson County’s attorney, Lawson Hester of the Mississippi firm Pettis, Barfield & Hester. “After they discovered the tomato plants growing in the basement, what remained?”

Lawson said “nine empty containers” were considered evidence enough to continue the search.

U.S. Circuit Judge Joel M. Carson couldn’t help but smile, as he repeated Hester’s statement: “They found nine empty containers and that led them to conclude there was a dismantled marijuana operation? When they found the empty containers, they were equally likely to plant tomatoes in them as marijuana,” he said.

Hester answered the jury found probable cause remained, bolstering the officers’ continued search of the house for any trace of marijuana.

“I’d like to share one of my favorite jokes with you,” Lucero quipped. “‘If ifs and buts were candy and nuts, then we could all have a Merry Christmas.’”

Although the Sunflower State shares borders with three states which have legalized various uses of marijuana, use and possession of the devil’s weed remains still strictly prohibited by Kansas law.

U.S. Circuit Judge Harris Hartz rounded out the panel. They did not indicate how or when they will rule.