Opinion
Case No. 00-1060-JTM
May 22, 2001
MEMORANDUM AND ORDER
This matter comes before the court on defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56. The motion is fully briefed and ripe for determination. For the reasons set forth below, the court grants defendants' motion.
I. Factual Background
Officers Thompson and Hudson are police officers in the city of Newton, Kansas. On the evening of October 6, 1998, Thompson was patrolling in the southbound direction on Main Street in Newton. At the same time, plaintiff Kirkley exited the parking lot of a convenience store and maneuvered his vehicle across four lanes of traffic without visible use of a turn signal. Kirkley stopped along the opposite curb and hailed a pedestrian whom Thompson knew to be Eric Jordan. Jordan approached Kirkley's vehicle and opened the passenger side door as the two began to converse. Meanwhile, Thompson had engaged his emergency lights and pulled behind Kirkley's vehicle. Jordan attempted to walk away from the vehicle when Thompson's patrol car approached. Thompson immediately instructed Jordan to have a seat in the passenger compartment. After several requests, Jordan reentered Kirkley's vehicle and shut the door.
When Thompson approached the vehicle, he recognized Kirkley from three previous encounters: a traffic stop, while responding to a nuisance call, and while addressing a deer tag violation. Thompson advised Kirkley that he had failed to use his turn signal while changing lanes. Kirkley stated that he had borrowed the vehicle and did not know whether the turn signal was functional. Thompson then obtained Kirkley's license and information and returned to the patrol car. In his incident report, Thompson states, "[a]s [Kirkley] handed me his driver's license I noticed Carl was shaking and appeared nervous." Memorandum in Opposition, Thompson Police Report. In his affidavit testimony, Thompson states that this nervousness "was a substantial departure from his demeanor on the previous occasions that I had met him." Thompson Affidavit, at ¶ 21. Plaintiff attempts to controvert this comparison and conclusion by noting that Thompson did not include it in his initial report. Plaintiff does not introduce any evidence, beyond a conclusory statement in his Memorandum in Opposition to controvert Thompson's affidavit testimony. As such, the court deems admitted the fact that Kirkley responded to the encounter with an unusual degree of nervousness.
While running a computer check on Kirkley, Jordan and Kirkley's vehicle, Thompson learned that the vehicle belonged to Bruce Edris. Thompson knew that Edris was "heavily involved in the trafficking of illegal drugs in Newton and Harvey County." Thompson Affidavit, at ¶ 25. Similarly, Thompson knew Jordan to be a "drug user and drug dealer" who "ha[d] often fled from police encounters or become combative during police encounters." Id. at ¶ 9.
Shortly after Thompson returned to his patrol car with Kirkley's license, Officer Hudson arrived on the scene. Thompson prepared a failure to signal citation for Kirkley and then informed Hudson of the situation and of his intent to ask Kirkley for consent to search the vehicle. Hudson assisted by asking Jordan to step out of the vehicle. Hudson conducted a pat-down search for weapons. Finding none, he escorted Jordan to a safe spot away from the vehicle. Thompson then asked Kirkley to exit the vehicle and move to the rear of the car. He gave the citation to Kirkley, explained where Kirkley should sign the citation and pointed out the court date. According to Thompson, "I told Kirkley he was free to go, however I would like to ask him a few questions. Kirkley said `sure.'" Thompson Affidavit, at ¶¶ 37-38. Thompson then asked Kirkley if there were any weapons, drugs, or other illegal contraband in the vehicle. Kirkley indicated there were no such items in the vehicle. Thompson next told Kirkley to step onto the sidewalk with Hudson. Hudson handcuffed Kirkley and patted him for weapons. Kirkley apparently informed Hudson that he had a registered, unloaded handgun in his right pocket. Hudson patted the gun and then removed it from Kirkley's pocket. The officers placed Kirkley under arrest for criminal use of a weapon and Thompson transported him to a detention center.
Hudson remained with Kirkley's vehicle and awaited the arrival of Newton Police Corporal Dunlavy and his drug detection canine. The canine indicated twice at different portions of the vehicle at which point the two officers searched the vehicle finding drug paraphernalia and some items of stolen property. On a plea of no contest, the Newton Municipal Court convicted Kirkley on one count of possession of drug paraphernalia and one count of criminal use of a weapon. An appeal is currently pending before the Harvey County District Court. Here, plaintiff asserts a claim under 42 U.S.C. § 1983 and Kansas common law that defendants unlawfully detained, searched, and arrested him. Plaintiff further claims that defendants tortiously invaded his privacy.
II. Summary Judgment Standards
Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all of the evidence in a light most favorable to the opposing party. Jurasek v. Utah State Hosp., 158 F.3d 506, 510 (10th Cir. 1998). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Baker v. Board of Regents, 991 F.2d 628, 630 (10th Cir. 1993). The moving party need not disprove the nonmoving party's claim or defense; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).
The party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita). The opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the opposing party must present significant admissible probative evidence supporting that party's allegations. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
III. Analysis and Discussion
The central issue in this case is whether the actions of Officers Thompson and Hudson were lawful. If their actions were lawful, then they are entitled to qualified immunity, or the right to be free from suit entirely. As with any Fourth Amendment analysis, the court must take an incremental approach by fully considering each additional level of intrusion into plaintiff's constitutionally protected rights. First, it is uncontested that Thompson's initial decision to stop Kirkley was justified. Kirkley violated local traffic ordinances by changing lanes without visible use of a turn signal. The initial stop and brief associated detention was thus justified.
The next level of intrusion occurred when Thompson sought to extend the scope of Kirkley's detention beyond what was necessary to address the traffic infraction. The court must analyze the additional detention as a Terry stop. See Terry v. Ohio, 392 U.S. 1 (1968). Generally, a Terry stop must be justified by an officer's reasonable suspicion that criminal activity is afoot and that the persons with whom he is dealing are armed and dangerous. However, in the instant case, such analysis is unnecessary because Kirkley consented to further questioning by Thompson. Because the encounter continued on a consensual basis, defendants' prolongation of the detention was lawful. See United States v. Mendez, 118 F.3d 1426, 1429 (10th Cir. 1997) (further questioning unrelated to the initial stop is permissible if the initial detention is over and the encounter becomes consensual with the driver voluntarily consenting to additional questions).
Even though the continued detention was consensual, the court must still assess the reasonableness of the subsequent pat-down search. An officer may conduct a pat-down search (or "frisk") if he or she "harbors an articulable and reasonable suspicion that the person is armed and dangerous." United States v. Davis, 94 F.3d 1465, 1468 (10th Cir. 1996). "A variety of factors may contribute to the formation of an objectively reasonable suspicion." United States v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir. 1998). "The law does not specify a minimum of factors necessary to constitute reasonable suspicion." United States v. Gutierrez-Daniez, 131 F.3d 939, 942 (10th Cir. 1997) (citation omitted), cert. denied, 523 U.S. 1035, 118 S.Ct. 1334, 140 L.Ed.2d 494 (1998). Arriving at reasonable suspicion is a process dealing with probabilities, not hard certainties, "`as understood by those versed in the field of law enforcement.'" United States v. Gutierrez-Daniez, 131 F.3d at 942 (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). "Police officers need not close their eyes to suspicious circumstances." Hunnicutt, 135 F.3d at 1349 (citation omitted). Indeed, an officer "is entitled to assess the facts in light of his experience" when it comes to detecting criminal activity. United States v. Brignoni-Ponce, 422 U.S. 873, 885, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). In evaluating the factors alleged in support of reasonable suspicion, the court "judge[s] the officer's conduct in light of common sense and ordinary human experience." United States v. Mendez, 118 F.3d at 1431 (citation omitted). "This approach is intended to avoid unrealistic second-guessing of police officers' decisions and to accord appropriate deference to the ability of a trained law enforcement officer to distinguish between innocent and suspicious actions." United States v. Gutierrez-Daniez, 131 F.3d at 941 (quoting United States v. Alvarez, 68 F.3d 1242, 1244 (10th Cir. 1995).
Here, the defendants suspected that Kirkley was involved in a drug transaction. These suspicions were based on the following factors: Kirkley's uncharacteristic nervousness, Jordan's attempts to leave the vehicle, Thompson's knowledge of Jordan's involvement in drug use and trafficking, Thompson's knowledge of Edris' involvement in drug trafficking, and the fact that Kirkley was driving Edris' vehicle. The court is satisfied that the combined evidentiary weight of these factors is sufficient for officers with defendants' experience and training to conclude there was reasonable suspicion of criminal activity occurring. See U.S. v. Silva, 957 F.2d 157, 161 (5th Cir. 1992) (companionship with or propinquity to an individual independently suspected of criminal activity is a factor to be considered in assessing the reasonableness of a seizure); United States v. Chaidez, 919 F.2d 1193, 1200 (7th Cir. 1990) (companionship of suspect and drug dealer a factor in reasonable suspicion analysis); United States v. Pope, 561 F.2d 663, 668-69 (6th Cir. 1977) ("flight from a clearly identified law enforcement officer may furnish sufficient ground for a limited investigative stop"); Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 676 (2000) ("Our cases have also recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.").
Still, in order to frisk Kirkley, Thompson must have had a reasonable suspicion that plaintiff was armed and dangerous. Under Tenth Circuit law, a reasonable suspicion that a person is engaged in a drug transaction is sufficient to raise the further suspicion that the suspect is armed and dangerous. See U.S. v. Hishaw, 235 F.3d 565, 569-70 (10th Cir. 2000) (citing United States v. Sakyi, 160 F.3d 164, 169 (4th Cir. 1998) (holding that "when the officer has a reasonable suspicion that illegal drugs are in the vehicle, the officer may, in the absence of factors allaying his safety concerns, order the occupants out of the vehicle and pat them down briefly for weapons to ensure the officer's safety and the safety of others"); United States v. Perrin, 45 F.3d 869, 873 (4th Cir. 1995) (noting that "it is certainly reasonable for an officer to believe that a person engaged in the selling of crack cocaine may be carrying a weapon for protection"); United States v. Anderson, 859 F.2d 1171, 1177 (3d Cir. 1988) (concluding that an officer's pat-down search of the occupants of a car was reasonable after the officer observed large amounts of money on the front seat, became suspicious that it might be drug money, and was concerned for his safety "because persons involved with drugs often carry weapons")). The court thus concludes that defendants' pat-down search of Kirkley was justified.
Of course, once Kirkley disclosed the presence of an illegal weapon, defendants had probable cause to arrest plaintiff. After the arrest, the search of the vehicle was lawful as incident to the arrest. Defendants did not violate any of plaintiff's clearly established Fourth Amendment rights and are thus entitled to qualified immunity from the section 1983 claim. Because they are entitled to qualified immunity from plaintiff's section 1983 claim, the discretionary function exception to the Kansas Tort Claims Act immunizes defendants from Kansas common law liability pursuant to Kan. Stat. Ann. § 75-6104(i). See Estate of Fuentes ex rel. Fuentes v. Thomas, 107 F. Supp.2d 1288, 1305 (D.Kan. 2000). The court thus finds that defendants are entitled to summary judgment on all of plaintiff's claims.
IT IS THEREFORE ORDERED this ___ day of May, 2001 that defendants' motion for summary judgment (dkt. no. 17) is granted.