Opinion
File No. 1:01-CV-717
September 9, 2002
OPINION
Before this Court is Defendants motion for summary judgment. In this case, Plaintiff Terrence Howard alleges that Defendants, Grand Rapids City police officers, violated his constitutional rights by searching him in violation of the Fourth Amendment, engaged in a civil conspiracy to violate Plaintiff's constitutional rights, assaulted and battered Plaintiff in violation of state law, and committed the tort of intentional inflection of emotional distress. As explained, Defendants? motion is GRANTED in part and DENIED in part.
I.
On August 8, 2000 around 5:30 p.m., Plaintiff was a passenger in a van being driven near the intersection of Kalamazoo and Alexander in Grand Rapids. Defendant Officer McKersie stopped the vehicle for disobeying a stop sign. (Pl.'s Br. Opp'n Ex. B Report C. McKersie at 2). When Officer McKersie approached the car, the driver acknowledged that he did not have his driver's license in his possession. (Pl.'s Br. Opp'n Ex. A Dep. C. McKersie at 14). Officer McKersie arrested the driver, searched him, and placed him in the back of the patrol car. (Pl.'s Br. Opp'n ex. A. Dep. C. McKersie at 14-15, Ex. B Report C. McKersie at 2). After describing these events, Officer McKersie's report contains four lines that from the Court's copy appear to have been whited out and rewritten. In the rewritten lines, the report indicates that during this time, "[t]he other three occupants of the vehicle were extremely jumpy and were moving around nervously throughout the van." (Pl.'s Br. Opp'n Ex. B Report C. McKersie at 2).
Officer McKersie returned to the van and asked Plaintiff to get out of the front passenger seat of the van with his hands on his head. Plaintiff followed Officer McKersie's instructions and was led to the patrol car. Both parties agree that Officer McKersie asked Plaintiff if Officer McKersie could search Plaintiff. According to Plaintiff, he specifically told Officer McKersie "no" and did not give his consent to be searched. (Pl.'s Br. Opp'n Ex. C Aff. T. Howard ¶ 5).
Although Plaintiff did not consent to the search, Officer McKersie proceeded to search Plaintiff using a knife search technique. (Pl.'s Br. Opp'n Ex. A Dep. C. McKersie at 22-24). The knife search technique involves "run[ning] your hand from along that back area of the scrotum on through right up against the anus and everything else on the way through . . . slid[ing] [the] hand through the buttocks." (Pl.'s Br. Opp'n Ex. A Dep. C. McKersie at 23). The actions of the hand are comparable to a "thong." (Pl.'s Br. Opp'n Ex. A Dep. C. McKersie at 23). During this knife search technique, Officer McKersie felt "something." (Pl.'s Br. Opp'n Ex. A Dep. C. McKersie at 24-25). In his deposition, Officer McKersie explained "I run into something from the exterior of the clothing. I grab it with my two fingers from the exterior of the clothing and pinch it to see what it is, and it feels like a plastic baggie underneath his clothing with something hard, several hard-kind of pieces, what I figured was suspected crack cocaine." (Pl.'s Br. Opp'n Ex. A Dep. C. McKersie at 25). Officer McKersie acknowledged that he "pinched it to see what it was." (Pl.'s Br. Opp'n Ex. A Dep. C. McKersie at 25).
While pinching and holding the suspected contraband, Officer McKersie asked Plaintiff what was in his pants. (Pl.'s Br. Opp'n Ex. A Dep. C. McKersie at 26-27). Plaintiff claims that he attempted to turn around and explain to Officer McKersie that there was nothing in his pants. (Pl.'s Br. Opp'n Ex. C Aff. T. Howard ¶ 10). Officer McKersie recounts the events differently. He contends that Plaintiff took his hands off his head, placed his hands on the cruiser, and pushed off the cruiser almost knocking Officer McKersie down. (Pl.'s Br. Opp'n Ex. A Dep. C. McKersie at 31). As a result of Plaintiffs actions, Officer McKersie lost control of Plaintiff. (Pl.'s Br. Opp'n Ex. A Dep. C. McKersie at 31). To regain control, Officer McKersie grabbed Plaintiffs arm, applied a wrist lock, and pushed Plaintiff towards the cruiser. (Pl.'s Br. Opp'n Ex. A Dep. C. McKersie at 31). After Plaintiff turned around a second time, Officer McKersie grabbed Plaintiffs arm and forced Plaintiff to the ground using a straight-arm bar technique. (Pl.'s Br. Opp'n Ex. A Dep. C. McKersie at 31-32). While on the ground, Plaintiff was rolling around and pulling his hands underneath his body. (Pl.'s Br. Opp'n Ex. A Dep. C. McKersie at 32). During this struggle, Officer McKersie used his knee to strike Plaintiff three times. (Pl.'s Br. Opp'n Ex. A Dep. C. McKersie at 33-34). Eventually, Officer McKersie handcuffed Plaintiff. (Pl.'s Br. Opp'n Ex. A Dep. C. McKersie at 34).
After being handcuffed, Plaintiff was searched again and was placed in Defendant Officer Wojczynski's patrol car. According to Officer McKersie, he still felt something between Plaintiffs buttocks during this second search after Plaintiff was handcuffed. Furthermore, Officer McKersie continued to identify what he felt as a plastic bag with crack cocaine.
After this second search, Defendant Sergeant Keelean arrived at the scene, and after Officer McKersie recounted the stop of the vehicle and the arrest of the driver and Plaintiff, Sergeant Keelean ordered Officer McKersie to search Plaintiff a third time before taking plaintiff to the Kent County Correctional Facility. Pursuant to this order, Officer Wojczynski drove Plaintiff and Officer McKersie to a church parking lot on Fuller and Hall. At the parking lot, Officer McKersie donned a latex glove, removed Plaintiff from the patrol car, shook Plaintiffs pants, and inserted his gloved hand into Plaintiffs pants underneath Plaintiff's clothes. According to Plaintiff, Officer McKersie ran his index finger "from the back of my scrotum to the top of my buttocks, coming into contact with my anus." (Pl.'s Br. Opp'n Ex. C Aff. T. Howard ¶ 17). Officer McKersie acknowledges looking for contraband during this search and putting on a glove to avoid touching the contraband with his bare skin. (Pl.'s Br. Opp'n Ex. A Dep. C. McKersie at 49-50). After this third search was completed, Officer Wojczynski and Officer McKersie returned with Plaintiff to the original location where the van was stopped.
Back at the location of the initial traffic stop, Officer McKersie explained these events to Defendant Lieutenant Nawrocki who ordered a strip search of Plaintiff at the Kent County Correctional Facility. In compliance with this order, Officer Wojczynski and Defendant Officer Host strip searched Mr. Howard at the Kent County Correctional Facility. They did not find any contraband in Mr. Howard's buttocks. While the strip search was conducted, Officer McKersie prepared an affidavit for a search warrant to authorize a body cavity search of Mr. Howard.
In his affidavit, Officer McKersie explained his background as a police officer and the events supporting the issuance of a search warrant. (Pl.'s Br. Opp'n Ex. F). The affidavit notes that Officer McKersie has only been a police officer for seven months, that he has participated in twenty-five arrests involving crack cocaine, and that "[d]uring many of these occassion[s], the crack cocaine has been secreted in various locations in the clothing and parts of the body, to include the genitalia and buttocks." (Pl.'s Br. Opp'n Ex. F). In describing Mr. Howard's arrest, Officer McKersie stated that while conducting a consent search, he believed that he felt a baggie with crack cocaine between Mr. Howard's buttocks, that after Mr. Howard attempted to resist arrest and to flee, he was placed under arrest and seated in the back of officer Wojczynski's cruiser, and that while in the cruiser, Mr. Howard was putting his hands down the back of his pants. Because a baggie of crack cocaine was not located in the cruiser or at the Kent County Correctional Facility, the affidavit was presented to a Kent County judge, who issued a warrant to search Mr. Howard's person. Mr. Howard was taken to St. Mary's Hospital, and at St. Mary's, a doctor searched Mr. Howard's anal cavity for contraband. The doctor did not find any contraband, and Mr. Howard was returned to the Kent County Correctional Facility. The charges against Mr. Howard for resisting arrest and obstructing an officer were dismissed.
In November 2001, Mr. Howard filed this action against the City of Grand Rapids ("the City"), Officer McKersie, Officer Wojczynski, Lieutenant Nawrocki, Officer Host, Sergeant Keelean, Officer John Doe, and Chief Harry Dolan ("Chief Dolan"). On February 22, 2002, Mr. Howard moved to voluntarily dismiss the City and Chief Dolan with prejudice because the evidence did not "support allegations of deliberate indifference regarding the City and/or Police Chief Harry Dolan." (Pl.'s Mot. to Dismiss ¶ 3). In his motion, Mr. Howard also requested that the Court dismiss his claims against the individual defendants without prejudice. The Court granted Mr. Howard's motion to dismiss with prejudice as to the City and Chief Dolan and denied his motion to dismiss as to the individual defendants. Consequently, the pending motion for summary judgment addresses Mr. Howard's claims against the individual Grand Rapids City police officers (collectively "Defendants").
II.
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). An issue concerning a material fact is genuine if the record as a whole could lead a reasonable trier of fact to find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Under Rule 56, the court must view the evidence in the light most favorable to the nonmoving party. Adickes v. S.H. Kress Co., 398 U.S. 144, 158-59 (1970). Summary judgment is not proper if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248. Summary judgment is proper if the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to the party's case for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
III.
Defendants argue that summary judgment is appropriate as to Plaintiffs claims against them in their official capacities because Plaintiff has already acknowledged that the City and Chief Dolan are not liable. Similarly, they claim that they are entitled to summary judgment on Plaintiffs claims against them in their personal capacities because they are entitled to qualified immunity. Implicit in this argument is Defendants' recognition that Plaintiff has sued them in both their official and individual capacities. Moore v. City of Harriman, 272 F.3d 769, 772-73 (6th Cir. 2001). Plaintiff counters that Defendants maybe held accountable in both their official and individual capacities.
A. Official Capacity Claims
"An official capacity claim filed against a public employee is equivalent to a lawsuit directed against the public entity which that agent represents." Claybrook v. Birchwell, 199 F.3d 350, 355 n. 4 (6th Cir. 2000) (citing Kentucky v. Graham, 473 U.S. 159, 165 (1985)). In other words, Plaintiffs claims against Defendants in their official capacities are identical to Plaintiffs claims against the City and Chief Dolan in his official capacity. To prove a claim against the City, Chief Dolan in his official capacity, or Defendants in their official capacities, Plaintiff must demonstrate that the alleged constitutional violation was a result of a custom, policy, or practice. Kostrzewa v. City of Troy, 247 F.3d 633, 644-45 (6th Cir. 2001) (citing Monell v. Dept. of Soc. Servs., 436 U.S. 658, 694 (1978)). Because Plaintiff has the burden of proving a custom, policy, or practice, Plaintiff as the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." FED. R. Civ. P. 56(e). In his response brief, Plaintiff has set forth no facts to suggest that there was a custom, policy, or practice. Furthermore, in voluntarily dismissing the City and Chief Dolan, Plaintiff expressly acknowledged that he did not have evidence of a custom, policy, or practice. (Pl.'s Mot. to Dismiss ¶ 3). Consequently, Plaintiff has not raised a genuine issue of material fact as to the existence of a custom, policy, or practice which caused the alleged constitutional violation. Accordingly, Defendants in their official capacities are entitled to judgment as a matter of law.
B. Individual Capacity Claims
Having determined that Defendants are entitled to summary judgment in their official capacities, Defendants next argue that they are entitled to qualified immunity for Plaintiff's claims against them in their individual capacities. "Qualified immunity may be asserted by government officials sued in their individual capacity." Guest v. Leis, 255 F.3d 325, 337 (6th Cir. 2001). In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court explained that qualified immunity is a two part analysis. First, "[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Id. at 201. Second, if a constitutional right was violated, "the next, sequential step is to ask whether the right was clearly established." Id. Defendants claim that they have not violated Plaintiffs constitutional rights and that even if they did violate Plaintiffs constitutional rights, those rights were not clearly established.
1. Constitutional Violations
The lawfulness of the stop and searches of Plaintiff are assessed in two steps. United States v. Martin, 289 F.3d 392, 397 (6th Cir. 2002). The first step is to analyze "whether there was a proper basis to stop the individual based upon the officer's aware[ness] of specific and articulable facts which gave rise to a reasonable suspicion." Id. (internal quotation omitted) (alteration in original). For the second step, the Court must consider "whether the degree of intrusion into the suspect's personal security was reasonably related in scope to the situation at hand, which is judged by examining the reasonableness of the officials' conduct given their suspicions and the surrounding circumstances." Id. (internal quotation omitted).
a. Constitutionality of Stop
Beginning with the first step, because Plaintiff was riding in a van, the Court must determine whether the van was lawfully stopped. "As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." Whren v. United States, 517 U.S. 806, 810 (1996) cited in, United States v. Johnson, 242 F.3d 707, 709 (6th Cir. 2001). Plaintiff does not dispute that Officer McKersie lawfully stopped and detained the van when the driver failed to obey a stop sign.
While Officer McKersie lawfully stopped the van, it is a separate question whether it was permissible to detain Plaintiff as a passenger in a lawfully stopped van. Because Plaintiff was a passenger in a lawfully stopped vehicle, the Fourth Amendment permits Officer McKersie to order Plaintiff from the van. Maryland v. Wilson, 519 U.S. 408, 415 (1997). In Wilson, the officer ordered the defendant out of the car, and as the defendant got out of the car, "a quantity of crack cocaine fell to the ground." Id. at 411. The super Court noted that:
Maryland urges us to go further and hold that an officer may forcibly detain a passenger for the entire duration of the stop. But respondent was subjected to no detention based on the stopping of the car once he had left it; his arrest was based on probable cause to believe that he was guilty of possession of cocaine with intent to distribute. The question which Maryland wishes answered, therefore, is not presented by this case, and we express no opinion upon it.Id. at 415 n. 3; see also Dennis v. State, 345 Md. 649, 653, 693 A.2d 1150, 1152 (1997) (finding it impermissible for an officer to detain a passenger merely because the passenger was in a lawfully stopped vehicle). Accordingly, it is an open question whether a passenger may be detained based solely on his presence in a lawfully stopped vehicle. As explained below, this Court does not need to resolve this issue in this case.
b. Constitutionality of Frisk
Because Plaintiff was lawfully stopped, the second step is to analyze whether Officer McKersie's decision to perform a knife technique search on Plaintiff was reasonable. In answering this question, "[t]he scope of law enforcement activities in an investigative stop depends upon the circumstances that originally justified the stop." Martin, 289 F.3d at 396. Additionally, "[t]o conduct such a protective search, an officer must first have reasonable suspicion supported by articulable facts that criminal activity may be afoot." United States v. Burton, 228 F.3d 524, 528 (4th Cir. 2000); see also United States v. Gray, 213 F.3d 998, 1000 (8th Cir. 2000) ("A protective frisk is constitutionally reasonable when a police officer `observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous.'") (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)); United States v. Glenn, 152 F.3d 1047, 1049 (8th Cir. 1998) (finding unreasonable an officer's search of a driver "solely because this was [the officer's] routine practice when placing drivers in the back seat of his car during traffic stops"). In this case, Officer McKersie argues that he had a reasonable suspicion that Plaintiff was armed and dangerous because Plaintiff and the other passengers "were extremely jumpy and were moving around nervously." (Defs.' Br. Supp. Ex. B Report C. McKersie at 2). Officer McKersie is correct that specific movements by an individual may suggest that a weapon is being concealed. See e.g., United States v. Brown, 273 F.3d 747, 748 (7th Cir. 2001) (determining that search was lawful because in addition to being nervous and looking around, the defendant did not have identification and made a quick move on exiting the car); United States v. Moorefield, 111 F.3d 10, 12 (3d Cir. 1997) (finding search reasonable because officer observed the defendant "shove something toward his waist" and because the defendant did not follow the officers' instructions). In these other cases, however, additional facts supported the officer's reasonable suspicion. Here, the only basis for Officer McKersie's suspicion was the passengers' movements.
Furthermore, having reviewed the facts, there are no other facts that support a reasonable suspicion that Plaintiff or the other passengers had weapons. When he stopped the van, Officer McKersie only knew that the driver had committed a traffic violation. He did not have any other information to suggest that the van or its occupants were engaged in illegal activity. After speaking with the driver, Officer McKersie discovered that the driver did not have his driver's license with him. While it was proper to arrest the driver for this offense, nothing about this offense implies that Plaintiff or the other passengers were participating in any criminal activity. Cf. United States v. Bell, 762 F.2d 495, 499 (6th Cir. 1985) (finding that it is improper to frisk an individual "based upon nothing more than an unfortunate choice of associates"). Solely on the basis of the passenger's movements, Officer McKersie decided to frisk Plaintiff for weapons. Contrary to Defendants' argument, this single fact does not support a reasonable suspicion that Plaintiff had possession of weapons or was participating in criminal activity.
Additionally, the facts indicate that the passengers' behavior was not the reason that Officer McKersie decided to frisk Plaintiff. Instead, Officer McKersie searched Plaintiff because Officer McKersie thought that by arresting an individual from a vehicle, he had the authority to search all the other occupants of the vehicle. In his deposition, Officer McKersie stated that he searched Plaintiff: "Because there was an arrest out of that vehicle. The vehicle is incident to search after the arrest; all occupants also." (Pl.'s Br. Opp'n Ex. A Dep. C. McKersie at 16). Officer McKersie's reasoning is not a correct statement of the law. In an unpublished opinion, the Sixth Circuit has explained that:
[A] per se rule allowing police to search passengers after ordering them from the stopped car, as urged by the government, is not authorized by Maryland v. Wilson's narrow holding. Until the Supreme Court extends the holding in Maryland v. Wilson, or directs otherwise, we must instead apply traditional Fourth Amendment analysis to review the propriety of the search. We therefore hold, under Terry, that the government must independently establish reasonable suspicion to support the frisk of [the passenger].United States v. Cleveland, No. 97-3297, 165 F.3d 28, 1998 WL 639173, at *2 (6th Cir. Sept. 11, 1998) (unpublished); see also United States v. Johnson, 170 F.3d 708, 714 (7th Cir. 1999) ("No decision of the Supreme Court . . . has ever held that police may conduct a Terry `frisk' of a house or an apartment — that is, approach it on nothing but a suspicion that something is amiss and conduct a brief warrantless search."). Because Officer McKersie has not identified specific and articulable reasons for searching Plaintiff, Officer McKersie's search of Plaintiff was unreasonable.
Even assuming that Officer McKersie was reasonable in searching Plaintiff, his search exceeded the permissible scope of a Terry search for weapons. "If the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed." Minnesota v. Dickerson, 508 U.S. 366, 373 (1993). In his deposition, Officer McKersie admitted that the knife search technique is beyond the scope of a Terry search. "Q: A knife procedure is not a part of a Terry pat-down is it? A: No. Q: For obvious reasons, that you are not worried about weapons being secreted into the cavity at that — A: Correct." (Pl.'s Br. Opp'n Ex. A Dep. C. McKersie at 10). Because the knife search technique exceeds the scope of a lawful Terry search, viewing the facts in the light most favorable to Plaintiff, Officer McKersie's search violated Plaintiffs constitutional rights.
c. Constitutionality of Arrest
Next, Plaintiff claims that his arrest violated his constitutional rights. "[A] full-fledged arrest must be supported by probable cause." McCurdy v. Montgomery County, Ohio, 240 F.3d 512, 517 (6th Cir. 2001). Officer McKersie argues that he had probable cause to arrest Plaintiff for possession of a controlled substance and for hindering and opposing a police officer. Specifically, there was probable cause to arrest Plaintiff for possession of a controlled substance because Officer McKersie felt what he believed was a plastic bag with crack cocaine between Plaintiffs buttocks. Officer McKersie also had probable cause to arrest Plaintiff for hindering and obstructing as Plaintiff had struggled with Officer McKersie on the ground and hindered Officer McKersie from handcuffing him. Plaintiff counters that Officer McKersie may not rely on his belief that there was crack cocaine between Plaintiffs buttocks to establish probable cause for Plaintiffs arrest for possession of a controlled substance. Similarly, Officer McKersie did not have probable cause to arrest Plaintiff for hindering or opposing as Officer McKersie was not performing his lawful duties when he was attempting to handcuff Plaintiff. Plaintiffs arguments are without merit.
Citing Wong Sun v. United States, 371 U.S. 471 (1963), Plaintiff asserts that Officer McKersie may not establish probable cause for an arrest from the fruits of an illegal search. In Wong Sun, the Supreme Court explained that the exclusionary rule, which prohibits the use in a criminal case of evidence obtained in violation of the constitution, applies to the "fruits" of an unconstitutional search or seizure. Id. at 485. Here, Plaintiff argues that Officer McKersie's suggestion that there was a plastic bag of crack between Plaintiffs buttocks was the fruit of an unlawful search and that Officer McKersie impermissibly used this fruit to establish probable cause to arrest him. While Plaintiff has established an unlawful search, Plaintiff has not cited any case law applying the exclusionary rule in a civil case.
Furthermore, having researched and considered this issue, this Court is persuaded by the well-reasoned analysis of the district court in Reich v. Minnicus. 886 F. Supp. 674, 681-86 (S.D. Ind. 1993). In Reich, the district court analogized the application of the exclusionary rule in a § 1983 action to its application when evidence is unlawfully obtained "by officers reasonably relying on a warrant issued by a detached and neutral magistrate." United States v. Leon, 468 U.S. 897, 913 (1984). In United States v. Leon, 468 U.S. 897 (1984), the Supreme Court addressed this second situation. Id. at 913. The Leon Court explained that whether the exclusionary rule applies in the second situation requires balancing the costs and the benefits of exclusion. Id. at 907. Balancing the costs and benefits in a § 1983 action, the district court in Reich determined that exclusion was not appropriate. Reich, 886 F. Supp. at 685. Although the Reich court did not exclude evidence unlawfully obtained, it was careful to note that "civil rights plaintiffs may recover damages for injuries suffered as a proximate result of defendants' constitutional violations." Id. at 684.
Guided by this analysis and following the Leon Court's direction, balancing the costs and benefits does not favor exclusion. In both civil and criminal cases, "the exclusionary rule is designed to deter police misconduct." Leon, 468 U.S. at 916. Unlike in a criminal case, nothing in this case suggests that exclusion will deter police misconduct. Furthermore, Plaintiff is not penalized by this decision because Plaintiff may still recover money damages for the arrest to the extent that it was proximately caused by the unlawful search. Id. at 684-85 n. 10. Therefore, this Court will not apply the exclusionary rule's fruits doctrine in this case. Accordingly, based on his belief that crack cocaine was secreted between Plaintiffs buttocks, Officer McKersie had probable cause to arrest Plaintiff for possession of a controlled substance.
Even if Officer McKersie's unlawful search could not provide the probable cause for Plaintiff's arrest for possession of a controlled substance, Plaintiffs "response to even an invalid arrest or Terry stop may constitute independent grounds for arrest." United States v. Dawdy, 46 F.3d 1427, 1431 (8th Cir. 1995). In this case, Officer McKersie argues that he had independent grounds for arresting Plaintiff for hindering and opposing a police officer in violation of a Grand Rapids ordinance. GRAND RAPIDS, MICH., ORDINANCES § 9.135(1). Plaintiff counters that he was not resisting but had turned around to speak with Officer McKersie. (Pl.'s Br. Opp'n Ex. C Aff. T. Howard ¶¶ 9-11). Plaintiff also argues that Officer McKersie was not performing his duties because Officer McKersie had already violated Plaintiffs constitutional rights. These arguments are without merit.
First, Plaintiff has not created a genuine issue of material fact that he was not hindering or opposing Officer McKersie. After Plaintiff turned around, Officer McKersie attempted to handcuff Plaintiff. According to Officer McKersie, Plaintiff struggled with Officer McKersie and prevented Officer McKersie from handcuffing him. (Pl.'s Br. Opp'n Ex. A Dep. C. McKersie at 31-33). Specifically, Plaintiff rolled around on the ground and pulled his arms underneath his body. Plaintiff does not dispute these facts, and based on these facts, Officer McKersie had probable cause to arrest Plaintiff for hindering and opposing a police officer. United States v. Collins F.3d 1196, 1198 (8th Cir. 2000) (en banc) (accepting that the officer did not have authority to arrest the defendant but finding that defendant's actions in struggling with officer after officer had wrongfully determined to arrest him were obstruction and created probable cause to support the defendant's arrest). Second, although Officer McKersie had already violated Plaintiff's constitutional rights, he was still performing his duties as a police officer. Cf. Monroe v. Pape, 365 U.S. 167, 184 (1961) ("Misuse of power, possessed by virtue of state law and made possible only because the wrong doer is clothed with the authority of state law, is action taken under color of state law." (internal quotations omitted)). Hence, Plaintiff was lawfully arrested.
d. Constitutionality of Force Used During Arrest
Next, Plaintiff claims that Officer McKersie used excessive force in arresting him. Because Plaintiff alleges excessive force in the context of an arrest, his claim is analyzed under the Fourth Amendment's objective reasonableness standard. Graham v. Connor, 490 U.S. 386, 394-95 (1989). The Fourth Amendment's objective reasonableness standard focuses on the totality of the circumstances. Bass v. Robinson, 167 F.3d 1041, 1046 (6th Cir. 1999). In Graham v. Connor, the Supreme Court explained the circumstances that courts should consider. In particular, the Graham Court noted that:
proper application [of the objective reasonableness standard] requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.Id. at 396; Bass, 167 F.3d at 1045. The key to this analysis is that an officer's conduct is "judged from the perspective of a reasonable officer on the scene." Graham, 490 U.S. at 396; Bass, 167 F.3d at 1046.
In this case, Plaintiffs affidavit alleges that "Officer McKersie took me to the ground by force, and proceeded to handcuff me." (Pl.'s Br. Opp'n Ex. C Aff. T. Howard ¶ 11). In his deposition, Officer McKersie explained that while struggling with Plaintiff on the ground, he repeatedly ordered Plaintiff to put his hands behind his back. (Pl.'s Br. Opp'n Ex. A Dep. C. McKersie at 33). When Plaintiff refused to comply with Officer McKersie's orders, Officer McKersie applied a knee strike to Plaintiffs buttocks. (Pl.'s Br. Opp'n Ex. A Dep. C. McKersie at 32). Plaintiff continued to roll on the ground and hold his arms underneath his body. (Pl.'s Br. Opp'n Ex. A Dep. C. McKersie at 33-34). Again, Officer McKersie ordered Plaintiff to put his hands behind his back. (Pl.'s Br. Opp'n Ex. A Dep. C. McKersie at 34). When Plaintiff did not comply, Officer McKersie applied a second and third knee strike. (Pl.'s Br. Opp'n Ex. A Dep. C. McKersie at 34). While the second strike missed Plaintiff, the third hit Plaintiff in his mid thigh. (Pl.'s Br. Opp'n Ex. A Dep. C. McKersie at 34). At this point, Officer McKersie was finally able to handcuff Plaintiff. (Pl.'s Br. Opp'n ex. A Dep. C. McKersie at 34). In his affidavit, Plaintiff does not dispute these facts. Thus, the Court will accept Officer McKersie's description of Plaintiffs arrest. This description shows that Plaintiff was disobeying Officer McKersie's orders, that Plaintiff was struggling with Officer McKersie, and that the force applied was necessary to handcuff Plaintiff. Applying the Fourth Amendment's objective reasonableness standard to these facts, Officer McKersie did not use excessive force in arresting Plaintiff
e. Constitutionality of Additional Searches
Following Officer's McKersie's first search and Plaintiffs arrest, Defendants searched Plaintiff four more times. In the second search, Officer McKersie completed his initial search at the scene of the stop. For the third search, Officer McKersie and Officer Wojczynski took Plaintiff to a church parking lot, and Officer McKersie inserted his gloved hand under Plaintiffs clothes and touched Plaintiff's bare skin. The fourth search was a strip search conducted by Officer Wojczynski and Officer Host at the Kent County Correctional Facility. The fifth and final search occurred when a doctor examined Plaintiffs body cavity at St. Mary's Hospital. Defendants argue that the second, third, and fourth searches were justified as searches incident to arrest.
Incident to an arrest, police may lawfully search the arrestee. United States v. Robinson, 414 U.S. 218, 235 (1973). To comply with the Fourth Amendment, the search incident to arrest must be reasonable. Amaechi v. West, 237 F.3d 356, 361 (4th Cir. 2001). Here, Defendants argue that because Plaintiff was lawfully arrested, the second, third, and fourth searches were reasonable searches incident to arrest. In his brief, Plaintiff does not argue that the second search was unreasonable, and therefore, the second search did not violate Plaintiffs constitutional rights. On the other hand, Plaintiff disputes that the third and fourth searches were reasonable. In particular, Plaintiff claims that for the third search, Officer McKersie unreasonably inserted his hand under Plaintiffs clothing and touched Plaintiff's private areas in a public place. As for the fourth search at the Kent County Correctional Facility, Plaintiff alleges that it was unreasonable because the probable cause supporting a strip search was the fruit of an illegal search.
To analyze whether these searches were reasonable, the Fourth Amendment "requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." Bell v. Wolfish, 441 U.S. 520, 559 (1979). In Amaechi v. West, the Fourth Circuit applied this standard to a search conducted by "touching and penetrating [plaintiffs] genitalia and kneading her buttocks with [the officer's] gloved hand." 237 F.3d 356, 361 (4th Cir. 2001). The Amaechi court found the search unconstitutional because the search was highly intrusive, it was performed in public, and the officers were not concerned for their safety. Id. at 360-61.
Here, the third search was conducted in a church parking lot away from the scene of the arrest. According to Plaintiff, Officer McKersie placed his hand in Plaintiffs pants and ran his index finger "from the back of my scrotum to the top of my buttocks, coming into contact with my anus." (Pl.'s Br. Opp'n Ex. C Aff. T. Howard ¶ 17). By touching Plaintiff's genitalia and buttocks, Officer McKersie conducted a highly intrusive search. Officer McKersie also acknowledges that he was searching for contraband. Furthermore, the decision to conduct this search in a church parking lot away from the scene of the traffic stop and Plaintiffs arrest indicates that Officer McKersie was not concerned for his safety and that there was no exigency to retrieve the contraband. These circumstances are similar to the facts in Amaechi. Considering these circumstances, this search was unreasonable and constituted a violation of Plaintiffs rights. But cf. United States v. Williams, 209 F.3d 940, 944 (7th Cir. 2000) (finding that it was not unreasonable for an officer to retrieve contraband from a suspect's buttocks because the suspect was attempting to flee, the suspect's buttocks was not exposed, and the area was dark); United States v. Ashley, 37 F.3d 678, 680 (D.C. Cir. 1994) (holding that a seizure of drugs was reasonable where the suspect was directed to open his pants while being shielded from public view by the officer).
Next, Plaintiff was searched a fourth time at the Kent County Correctional Facility. Unlike the previous search, this search was conducted concurrently with Plaintiff being lodged at the Kent County Correctional Facility. According to Plaintiff, officers "took [him] into the bathroom where [he] was ordered to remove my pants and bend over. When I did so, the officers examined me visually." (Pl.'s Br. Opp'n Ex. C Aff. T. Howard ¶ 20). Plaintiff contends that this search was unreasonable because it was based on the fruits of the original unlawful search conducted by Officer McKersie. As previously explained, this case does not warrant applying the exclusionary rule's fruits doctrine to invalidate subsequent searches based on probable cause developed in an unconstitutional search. Consequently, because Defendants had reason to believe that Plaintiff was concealing contraband in his buttocks, it was not unreasonable to strip search Plaintiff. Furthermore, unlike the third search, the circumstances of this search were not unreasonable as the search was merely a visual inspection and was conducted in a bathroom at the Kent County Correctional Facility.
Unlike the second, third, and fourth searches, the fifth search was conducted pursuant to a warrant. "An officer who obtains a warrant through material false statements which result in an unconstitutional search may be held personally liable for his actions under § 1983." Aponte Matos v. Toledo Davila, 135 F.3d 182, 187 (1st Cir. 1998). Plaintiff
challenges the sufficiency of this warrant's probable cause to justify searching his body cavity. The warrant was issued based on Officer McKersie's affidavit. In his affidavit, Officer McKersie stated that Plaintiff had consented to the initial Terry search of his person and that during this consent search, Officer McKersie felt a plastic bag containing crack cocaine between Plaintiffs buttocks. Plaintiff counters that he did not consent to Officer McKersie searching his person.
A search warrant is invalid if a movant establishes that: (1) a factual statement made in an affidavit supporting a warrant is false; (2) the affiant made the false statement "knowingly and intentionally or with reckless disregard for the truth"; and (3) without the false statements, the remainder of the affidavit is insufficient to establish probable cause.Delta Eng'g v. United States, 41 F.3d 259, 62 (6th Cir. 1994) (quoting Delaware v. Franks, 438 U.S. 154, 155-56 (1978)); see also Mays v. City of Dayton, 134 F.3d 809, 815-16 (6th Cir. 1998) (using Franks to analyze validity of search warrant in civil rights action against police officer). Viewing the facts in the light most favorable to Plaintiff, Plaintiff did not give his consent for Officer McKersie to search him, and this false statement was included in Officer McKersie's affidavit. This false statement, however, did not provide the probable cause for the warrant. The statement that Officer McKersie felt a plastic bag with crack cocaine between Plaintiffs buttocks provided the probable cause for the warrant. Plaintiff counters that this fact may not be considered because it was the fruit of an unlawful search. As explained, the Court has determined that it is not appropriate to apply the exclusionary rule's fruits doctrine in this case. Therefore, Plaintiffs constitutional rights were not violated by the search of his body cavity.
f. Allegations of Eighth Amendment Violations
In his last alleged constitutional violation, Plaintiff alleges that he was subjected to cruel and unusual punishment in violation of the Eighth Amendment by Defendants actions. The Supreme Court has noted that "[t]he Cruel and Unusual Punishments Clause `was designed to protect those convicted of crimes,' and consequently the Clause applies `only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions.'" Whitley v. Albers, 475 U.S. 312, 318 (1986) (quoting Ingraham v. Wright, 430 U.S. 651, 664, 671, n. 40 (1977)); see also Graham v. Connor, 490 U.S. 386, 394 (1989) (explaining that the first step in a § 1983 case is to "identify the specific constitutional right allegedly infringed by the challenged application of force"). Here, Plaintiff was not convicted of a crime, and thus, the Eighth Amendment does not apply to his claims. Accordingly, Defendants have not violated Plaintiffs Eighth Amendment rights.
To summarize, the Court has found that Officer McKersie violated Plaintiff's Fourth Amendment rights when he performed the first search using the knife search technique and the third search at the back of the church parking lot. Although Plaintiff claims that Defendants engaged in a civil conspiracy, he does not allege that the other Defendants directly participated in these unlawful searches. As a result, Defendants, with the exception of Officer McKersie, are granted summary judgment for Plaintiffs claims of discrete constitutional violations but as explained not for Plaintiffs civil conspiracy claim.
2. Qualified Immunity
Having determined that some of Plaintiffs constitutional rights were violated, the second step is to analyze whether Officer McKersie is entitled to qualified immunity for these constitutional violations. "`The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Saucier v. Katz, 533 U.S. 194, 202 (2001) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). "This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent." Anderson, 483 U.S. at 640 (citation omitted); see also Amaechi v. West, 237 F.3d 356, 362 (4th Cir. 2001) ("[T]he exact conduct at issue need not have been held unlawful for the law governing an officer's actions to be clearly established."); Brokaw v. Mercer County, 235 F.3d 1000, 1022 (7th Cir. 2000) ("[Plaintiff] can establish a clearly established constitutional right by showing that the violation was so obvious that a reasonable person would have known of the unconstitutionality of the conduct at issue. Thus, binding precedent is not necessary to clearly establish a right."). This standard is applied to each constitutional violation.
Plaintiff's constitutional rights were violated when he was searched without reasonable suspicion. As previously explained, generalized movements of all the occupants of the van did not create reasonable suspicion to search Plaintiff. This conclusion was reached by distinguishing cases where furtive movements plus additional factors supported finding reasonable suspicion for the search. Although the exact issue has not been addressed, a reasonable officer would know from these precedents that the passengers movements alone did not create reasonable suspicion sufficient to justify a Terry search. Consequently, the law was clearly established that Officer McKersie did not have reasonable suspicion to search Plaintiff based merely on the generalized furtive movements of the van's passengers. Accordingly, Officer McKersie is not entitled to qualified immunity on this point.
With regard to the first search, Plaintiffs rights were also violated when Officer McKersie exceeded the permissible scope of a Terry frisk. Specifically, Officer McKersie performed a knife search technique on Plaintiff. Again, the question for purposes of qualified immunity analysis is whether the law clearly established that a knife search technique exceeded the scope of a permissible Terry frisk. As to this constitutional violation, the law was clearly established. In 1993, the Supreme Court explained that "[i]f the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed." Minnesota v. Dickerson, 508 U.S. 366, 373 (1993). Officer McKersie knew that a Terry frisk or a Terry search was only for weapons. Yet, he acknowledges that the knife search technique is not part of a Terry frisk because he was "not worried about weapons being secreted into the cavity." (Pl.'s Br. Opp'n Ex. A Dep. C. McKersie at 10). Therefore, Officer McKersie is not entitled to qualified immunity for exceeding the permissible scope of a Terry frisk.
The Court also found that the third search violated Plaintiffs constitutional rights. This conclusion was reached by applying the balancing test in Bell v. Wolfish, 441 U.S. 520 (1979). Consistent with this test, the need for the search was balanced against the search's intrusiveness. Id. at 559. While the Bell case itself did not clearly establish that it was a constitutional violation to search by touch an individual's private areas underneath their clothes in a public place, its development and application makes it apparent that this search was unconstitutional. Amaechi v. West, 237 F.3d 356, 364-65 (4th Cir. 2001). As the Fourth Circuit explained in Amaechi v. West, qualified immunity is inappropriate for highly intrusive searches conducted in public. Id. Consequently, Officer McKersie is not entitled to qualified immunity for the third search.
C. Civil Conspiracy Claim
Defendants also move for summary judgment on Plaintiffs claim that they engaged in a civil conspiracy. Defendants argue that Plaintiff has not met his burden on this claim because he has not alleged that Defendants "acted pursuant to racial or class-based discrimination in arresting and searching him incident to arrest." (Defs.' Br. Supp. at 5). To support their argument that racial or class based discrimination is an element of a civil conspiracy, Defendants cite Griffin v. Breckenridge, 403 U.S. 88 (1971). In Griffin, the Supreme Court "granted certiorari to consider questions going to the scope and constitutionality of 42 U.S.C. § 1985 (3)." Id. at 93 (citation omitted); see also Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 268 (1993) (explaining that discriminatory animus is an element of a § 1985(3) claim); United Bhd. of Carpenters and Joiners of Am., Local 610, AFL-CIO v. Scott, 463 U.S. 825, 832 (1983) (noting that the Griffin opinion "held that § 1985(3) reaches purely private conspiracies and, as so interpreted, was not invalid on its face or as there applied").
In this case, Plaintiff claims that Defendants engaged in a civil conspiracy to violate Plaintiff's constitutional rights pursuant to 42 U.S.C. § 1983, 1988. (Pl.'s Compl. ¶¶ 2, 12, 35). Plaintiffs complaint does not allege a violation of 42 U.S.C. ¶ 1985(3). Unlike a claim under § 1985(3), a civil conspiracy claim pursuant to § 1983 does not require Plaintiff to prove discriminatory animus.
To prove a § 1983 conspiracy claim against a particular defendant, the plaintiff must show: that the defendant conspired with others to deprive him or her of a constitutional right; that at least one of the alleged co-conspirators engaged in an overt act in furtherance of the conspiracy; and that the overt act injured the plaintiff.Askew v. Millerd, 191 F.3d 953, 957 (8th Cir. 1999); see also Kerr v. Lyford, 171 F.3d 330, 340 (5th Cir. 1999) ("The elements of civil conspiracy are (1) an actual violation of a right protected under § 1983 and (2) actions taken in concert by the defendants with the specific intent to violate the aforementioned right."). Because on his § 1983 civil conspiracy claim, Plaintiff is not required to show discriminatory animus, Defendants' motion for summary judgment on this claim is denied.
IV.
In conclusion, Defendants' motion for summary judgment is GRANTED in part and DENIED in part. First, summary judgment is GRANTED as to all Defendants on Plaintiffs claims that they are liable in their official capacities. Second, Defendants Officer Wojczynski, Lt. Richard Nawrocki, Officer Adam Host, and Sergeant John Keelean's motion for summary judgment is GRANTED as to Plaintiffs claims of discrete constitutional violations but not as to Plaintiffs claim of civil conspiracy. Third, Defendant Officer McKersie's motion for summary judgment is DENIED. Viewing the facts in the light most favorable to Plaintiff, Officer McKersie has violated Plaintiffs constitutional rights, and furthermore, he is not entitled to qualified immunity for these violations. Finally, Defendants' motion for summary judgment on Plaintiffs civil conspiracy claim is DENIED. Accordingly, an order consistent with this opinion will be entered.