Opinion
No. 11–P–1405.
2012-10-16
Gregory K. McBRIDE v. Thomas DUANE & others.
By the Court (CYPHER, BERRY & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Gregory K. McBride, appeals from the allowance of a motion for summary judgment which conclusively resolved against him his civil rights claims against the defendants, three Massachusetts State police troopers. The plaintiff's action arises out of a motor vehicle stop in November, 2001, on Interstate Route 93. The stop was the result of a report by an off-duty Boston police officer, who identified himself by name and who stated that a white Cadillac bearing Maryland plates (the plate number was included) was “all over the road” and that the operator, later identified as the plaintiff, was smoking marijuana. As a result of the stop and a subsequent investigation, the plaintiff, who was not arrested and was never placed in handcuffs, was charged with unauthorized use of a motor vehicle and summonsed to appear in court. Later, the criminal case was dismissed.
Discussion. Applying the familiar standard governing the review of the allowance of a motion for summary judgment, we affirm the decision below.
We review a grant of summary judgment de novo to determine “whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Juliano v. Simpson, 461 Mass. 527, 529–530 (2012). We draw inferences from the underlying facts in favor of the plaintiff as the party opposing summary judgment and resolve all doubt as to genuine issues of material fact against the defendants. See Attorney Gen. v. Bailey, 386 Mass. 367, 371, cert. denied, 459 U .S. 970 (1982). “Most favorable light” does not exclude adverse facts. Poon v. Massachusetts Inst. of Technology, 74 Mass.App.Ct. 185, 194 (2009).
Civil rights violations. The plaintiff's supposition that racial animus motivated the defendants to stop his vehicle rests on (1) his denial, without foundation, of the existence of the report by the off-duty Boston police officer, (2) the fact that he, an African–American man, was operating a white Cadillac with tinted windows and out-of-State plates, and (3) the fact that at one point during the encounter, Duane stated, “I know a thousand guys like you.” The plaintiff interpreted this comment as racial slur but could not explain why it should be understood as such, and offered no evidence of any abusive, provocative, or overtly racial remark that was made by any of the defendants. Based on the report from a motorist, who gave his identity and occupation as a police officer, that he had observed a specifically identified vehicle being operated in an erratic manner by a person who appeared to be smoking marijuana, the police were warranted in stopping the vehicle to investigate. See Commonwealth v. Riggieri, 438 Mass. 613, 616–617 (2003); Commonwealth v. Cavitt, 460 Mass. 617, 628–630 (2011); Commonwealth v. Anderson, 461 Mass. 616, 621 (2012). Because this case arose at a time when the possession of even a small quantity of marijuana was a criminal violation, the evidence of the odor of freshly burnt marijuana detected by the troopers established probable cause for an automobile search. See Commonwealth v. Garden, 451 Mass. 43, 47–48 (2008), overruled by Commonwealth v. Cruz, 459 Mass. 459 (2011). There is no need to separately analyze the basis for the exit order and patfrisk because the plaintiff's challenge regarding those actions is based entirely on what he alleges was an unlawful stop.
At his deposition, the plaintiff testified that he had no prior contact with the three State police troopers or the Boston police officer, who was included as a defendant in the original action. Furthermore, his testimony suggests that he believed he was a victim of racial profiling from the outset of his encounter with the police. During the stop, the plaintiff told Duane that if he did not have a gun belt on, he would “show him a tap dance”; that Duane did not know anybody like him but he was about to find out; and that Duane was “a waste of a life.”
Other claims. The Superior Court judge was warranted in granting judgment for the defendants on the malicious prosecution claim because the charge of unauthorized use was supported by the evidence that the plaintiff was not listed on the rental car contract as an authorized driver. Even though the plaintiff eventually gave the police the name of the person who had given him the keys to the car, the police were warranted in their belief that the defendant was aware that he was not listed on the rental car contract. See Commonwealth v. Keefner, 461 Mass. 507, 517 (2012). Likewise, judgment was properly granted for the defendants on the plaintiff's abuse of process claim because the plaintiff did not show that the defendants used process for an illegitimate purpose that caused the plaintiff damages, nor did he identify any collateral advantage they sought to obtain from him. See Keystone Freight Corp. v. Bartlett Consol., Inc., 77 Mass.App.Ct. 304, 312–313 (2010), and cases cited. The remainder of the plaintiff's claims need not be addressed because they are stated in a conclusory fashion without supporting authority and must therefore be deemed waived. See Mass.R.App.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
Judgment affirmed.