Opinion
Case No. 01-CV-70301-DT
January 24, 2002
OPINION AND ORDER
I. INTRODUCTION
This matter is before the Court on Defendants' Motion for Judgment on the Pleadings, or in the Alternative, for Summary Judgment. Plaintiff responded and Defendants replied. The Court finds that the facts and legal arguments are adequately presented in the panics' briefs and the decisional process would not be significantly aided by oral argument. Therefore, pursuant to E.D. MICH. LR 7.1(c)(2), it is hereby ORDERED that the motion be resolved on the briefs submitted. For the reasons set forth below, Defendants' Motion for Summary Judgment is DENIED,
Pursuant to FED. R. Civ. P. 12, the Court will treat Defendants' motion, styled as one for dismissal on the pleadings under Fun. P. Civ. P. 12(b)(6), as one for summary judgment under Fun.R. Civ. P. 56 because Defendants' motion and Plaintiff's response contain mailers outside the pleadings. See FUD.R. Civ. P. 22(c); see also Dayco Corp. v. Goodyear Tire Rubber Co., 523 F.2d 389, 392 (6th Cir. 2975).
II. BACKGROUND
This case involves an action by Plaintiff, pursuant 42 U.S.C. § 1983, to collect damages and attorney's fees pursuant to 42 U.S.C. § 1988 for Defendants' alleged violation of Plaintiff's rights guaranteed by the Fourth Amendment to the United States Constitution.
A. Factual History
Although subject to minor discrepancies, the factual allegations herein are commonly alleged by both parties except where noted. Plaintiff had an "on again, off again" relationship with John Ira-Ed Kimbler (hereinafter "Kimbler") until June 16, 2000, when the two were "not together." On that date, Kimbler arrived at the Jackson City Police Department and informed Defendant Mitt that Plaintiff "was going to purchase marijuana for him" and that there were "problems in their relationship because of Plaintiff's marijuana use." Kimbler then telephoned Plaintiff from the police station, in the presence of Defendant Hitt, and allegedly arranged to meet Plaintiff at a local bar for delivery of marijuana. Defendant Hitt overheard only Kimbler's side of the conversation, which lasted about ten minutes, and stated that Kimbler "seemed calm, assured and normal." Defendants point out that Kimbler provided the identity of Plaintiff, a description of her vehicle (small, red, with damage to the hood and passenger side), the location of the delivery, and the direction in which Plaintiff would be approaching the bar. Defendant Hitt also allegedly stated that he recognized Kimbler from the neighborhood, however, there is no citation to the record establishing the basis for this fact. Indeed, Defendant Hitt, in his deposition testimony, states that lie did not know anything about Kimbler; that he "didn't know him from Adam."
Plaintiff states that Kimbler did call her, but that she emphatically refused to obtain marijuana for him and that she "didn't like dealing with that." Plaintiff further states that she has never obtained marijuana for Kimbler before. However, Plaintiff states that she did agree to pick Kimbler up at the bar. Defendants then determined that they had received enough information to warrant a stop and search of Plaintiff's vehicle and person.
Defendant Hitt received permission from Defendant Gleason to stop and search Plaintiff's person and vehicle. Therefore, Defendant Hitt took Kimbler to the bar and parked in the parking lot. When the small red two-door vehicle approached with the damages Kimbler described, Defendant Hitt radioed Defendant Albrecht that the vehicle had approached. At this point, Defendants assert that Kimbler's tip, along with Defendants' corroboration of the facts contained in the tip, gave them probable cause to believe that Plaintiff was engaging in the possession and delivery of marijuana.
Plaintiff attacks Kimbler's reliability as an informant, and therefore necessarily attacks Defendants' assertion that they had probable cause. Defendant Hitt stated that he knew that Kimbler and Plaintiff wore involved in a relationship that had problems, yet no inquiry was made into the specifics of Kimbler's relationship with Plaintiff, Defendant Hitt had never met Kimblor before, Kimbler had a disheveled appearance, no rap sheet was obtained on Kimbler or Plaintiff, Defendants had no recollection of prior informant work done by Kimbler, and Defendant Hitt did not write down the phone number at which Plaintiff was allegedly called at the station.
Defendant Albrecht then stopped the vehicle two or three blocks from the bar, establishing Plaintiff's identity when she furnished her driver's license. Plaintiffs four year old son was in the vehicle, strapped into a child restraint seat. Defendant Albrecht stated that he did not witness any violation of the Michigan Motor Vehicle Code, asserting that the sole justification for the stop was the alleged probability that Plaintiff possessed, and was about to deliver, marijuana. Defendants never petitioned a magistrate for either an arrest warrant or search warrant.
It is from this point that the parties' version of the facts differs sharply. Defendant Albrecht testified that he asked Plaintiff if he could search her car and she gave permission. Defendants state that "Plaintiff's general disposition was that she was willing to be cooperative, and she seemed happy that she didn't have anything. Officer Hitt was answering Plaintiff's questions and saying things that explained why [Plaintiff] had been stopped." Defendant Officer Jennifer Carter was called to the scene to search Plaintiff's person. The following is Defendants' description of Defendant Carter's search of Plaintiff:
Officer Carter searched Plaintiff over by her patrol ear which was across the street. The suspect had her back to the car and her feet in the street, Officer Carter checked the waistband in the suspect's shorts by gently pulling out same. She checked the suspect['s] shirt by pulling the shirt and flapping it. Officer Carter used her fingers to check the suspect's hair for drugs. She checked the suspect's bra for drugs by using her thumb and index finger to pull it straight out; Officer Carter's hands were outside the suspect's clothing. Officer Carter had the suspect remove her shoes and socks, and checked them for drugs. As Officer Carter was checking, she told the suspect what she was doing and Plaintiff said that was fine. Plaintiff was compliant. The suspect made no protests and was not upset. The suspect's child was not upset.
Defendants essentially state that they obtained Plaintiff's full consent to search her vehicle and her person, and that Plaintiff was compliant with both searches.
Plaintiffs version of these events is sharply different. Plaintiff avers that she never consented to the search of her person or her vehicle, that she asked Defendants multiple times the reason for the stop, initially receiving no answer, and then vague answers and innuendos, and that she told Defendants that if she was not under arrest that she wanted to leave. Plaintiffs four year old son was removed from the passenger seat and her vehicle searched while Plaintiff's protestations continued. Plaintiff states that she was stopped for fifteen minutes when Defendant Carter arrived at the scene. Plaintiff states that Defendant Carter began to search her person without permission. Plaintiff described the search as follows:
[Defendant Carter] then moved her hands on my breast and had her hands underneath the underwire, on top of my shirt, and shook my underwire and shook my breasts and moved my shirt like if something would have fallen out, it could have . . . done so. And I said "This is ridiculous." I looked around, and that's when I noticed people walking across the street, kitty-corner from the area we were in, and looking.
Plaintiff then states that she was ordered to remove her hair tie and that she then felt Defendant Carter's hands "in the back of her pants, with the pants being pulled out." Plaintiff states that she was also ordered to slowly take off her shoes and socks. Plaintiff states that Defendant Carter's search took approximately ten minutes, and the entire stop took thirty to forty-five minutes. After having to ask Defendants for her license back, and being informed that she was a "prospective drug runner, Defendants released Plaintiff from their custody and allowed her to leave. Plaintiff alleges that this episode caused her much distress.
B. Parties' Respective Legal Positions
Defendants' allege that they had probable cause to stop and search Plaintiff, based solely on Kimbler's tip and Defendants' corroboration thereof However, Defendants assert that Plaintiff was never arrested, and further that Plaintiff furnished full consent to search her vehicle and person. Finally, Defendants argue that they are protected by the doctrine of qualified immunity. Plaintiff alleges that she did not furnish consent and that Defendants lacked probable cause for the stop and search, thereby making the stop and search unconstitutional.
The possible legal scenarios are as follows: 1) Defendants had probable cause based on Kimbler's tip, held Plaintiff for thirty to forty-five minutes, thereby putting her under custodial arrest, see United States v. Hardnett, 804 F.2d 353, 356-57 (6th Cir. 1986), and performed a constitutional full exploratory search incident to that arrest, see United States v. Robinson, 414 U.S. 218, 235 (1973); ¶ 2) Defendants had probable cause to stop Plaintiff's vehicle and received her consent to search her vehicle and her person; 3) Defendants had reasonable suspicion to stop Plaintiff, see Terry v. Ohio, 392 U.S. 1 (1968), and received her consent to search her vehicle and her person. Defendants only raise the second scenario as a defense to Plaintiff's lawsuit.
Recognizing that the issue of Plaintiff's consent is a genuine issue of material fact, the Court can only grant Defendants' Motion for Summary Judgment if it finds that Defendants obtained the requisite probable cause to stop and search Plaintiff and her vehicle.
III. STANDARD OF REVIEW
Summary judgment is appropriate only if the answers to interrogatories, depositions, admissions, and pleadings combined with the affidavits in support show that no genuine issue as to any material fact remains and the moving party is entitled to a judgment as a matter of law. See FED. R. Civ. P. 56(c). A genuine issue of material fact exists when there is "sufficient evidence favoring the non-moving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (citations omitted). In application of this summary judgment standard, the Court must view all materials supplied, including all pleadings, in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "If the evidence is merely colorable or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).
The moving party bears the initial responsibility of informing die Court of the basis for its motion and identifying those portions of the record that establish the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its burden, the nonmoving party must go beyond the pleadings and come forward with specific facts to demonstrate that there is a genuine issue for trial. See FED. It Civ. P. 56(e); Celotex, 477 U.S. at 324. The non-moving party must do more than show that there is some metaphysical doubt as to the material facts. It must present significant probative evidence in support of its opposition to the motion for summary judgment in order to defeat the motion for summary judgment. See Moore v. Philip Morris Co., 8 F.3d 335, 339-40 (6th Cir. 1993).
IV. ANALYSIS
The Court finds that Defendants Jacked probable cause when they stopped Plaintiff's vehicle and subsequently searched that vehicle and Plaintiff's person.
The Fourth Amendment protects our citizens from unreasonable searches and seizures. See U.S. CONST. amend. IV. "The burden of proving the constitutional validity" of a search or seizure "falls squarely on the Government." United States v. Cooper, No. 99-5633, 2001 U.S. App. LEXIS 516, at *8 (6th Cir. Jan. 10, 2001) (citing United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1295 (6th Cir. 1988)). Defendants aver that they have satisfied the Fourth Amendment's requirement that a full search or seizure be based upon probable cause.
The seminal case regarding the current standard with which to measure probable cause based upon an informant's tip is the Supreme Court's decision in Illinois v. Gates, 462 U.S. 213 (1983). In Gates, the Court repudiated the rigid and technical analysis of probable cause previously set forth in Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli v. United States, 393 U.S. 410 (1969), which required that probable cause be based solely on 1) the informant's "basis of knowledge" the particular means by which the informant obtained the information, and 2) facts that sufficiently establish the informant's "veracity" or the "reliability" of the informant's report. Instead, the Court held that while an informant's basis of knowledge, veracity, and reliability are still highly relevant considerations, courts should look at the "totality of the circumstances" in assessing whether an informant's tip establishes probable cause. In sum, the Court stated that a magistrate, in considering issuing a warrant based upon probable cause, "is simply to make a practical, common-sense decision whether, given all the circumstances . . ., including the "veracity" and "basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Gates, 462 U.S. at 238.
The Court recognized that probable cause determinations are based upon "`factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" Id. at 231 (quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)). The Court was also clear that police officers may make warrantless arrests based upon an informant's tip if it appears reliable under the totality of the circumstances — the tip is "reasonably corroborated by other matters within the officer's knowledge." Id. at 242. Finally, probable cause is measured by an objective standard. The test is whether "any prudent, trained officer could justifiably believe that an offense has been committed," not whether the "arresting officers themselves believed they had probable cause to act." United States v. Cooper, No. 99-5633, 2001 U.S. App. LEXIS 516 (6th Cir. Jan. 10, 2001).
In Cooper, police stopped defendant's vehicle based on the charge that lie was a felon in possession of a firearm. The Sixth Circuit held that the police had the requisite probable cause to stop and arrest defendant based on information received from defendant's wife. Defendant's wife came to a Federal Bureau of Investigation office, which referred her to the Bureau of Alcohol, Tobacco, and Firearms ("ATF"). The wife informed ATF agents she and defendant were having marital difficulties, that defendant threatened her, and she was in fear of her life. The wife stated that defendant owned three rifle-type guns and that she was missing one of her pistols. The wife stated that defendant may have her pistol and that defendant had confronted police when they came to her home on a domestic violence call. ATF agents arranged for the wife to call defendant and tell him her car was being serviced and that she needed him to pick her up. ATF arranged to have local police officers stop defendant on the way to meet his wife and obtain his consent to search the vehicle for the sole purpose of giving ATF agents enough time to search defendant's home for the weapons without a violent confrontation with defendant. The Sixth Circuit found that the wife's information provided the police with probable cause to stop and arrest defendant without a warrant.
In Cooper, as in the case at bar, the informant was known and had an intimate relationship with the defendant. However, the informant in Cooper, unlike Kimblar, produced concrete evidence of defendant's violation (a silencer for a firearm), provided explicit information about exactly how many guns were in the house and exactly where they could be located, brought her claim to two federal agencies, provided proof of her identity, authorities checked the informant's criminal record, and checked the defendant's criminal record to confirm that he was a convicted felon. It was these last two steps taken by authorities that the Sixth Circuit found most persuasive in finding probable cause. See Id. at *17. The questioning by authorities that resulted in specific facts sufficient to warrant probable cause based on the informant's tip took several hours.
In the case at bar, an admittedly unknown and disheveled man walked into Defendants' station, said lie and Plaintiff were having problems because she uses marijuana, Defendants saw the man pick up a phone and dial numbers on the phone without verifying what number he called and hearing only the man talk into the phone, from that took the man's word that Plaintiff told him she would be delivering marijuana to him at a bar, and listened to the man describe the car Plaintiff would be using to get to the bar, a car he has undoubtedly seen countless times considering his relationship with Plaintiff. According to Defendant's brief, no more than ten or fifteen minutes had elapsed from the time Kimbler walked into the station house until Defendants left to intercept Plaintiff's vehicle. Further, Defendants failed to delve into the facts of Kimbler relationship with Plaintiff, and failed to investigate the background, or even confirm die identity, of either Plaintiff or Kimbler.
Defendants' place an inordinate amount of emphasis on the fact that they "corroborated" Kimbler's tip when the description of Plaintiff and her vehicle, and the direction of the vehicle, matched Kimbler's description. Defendants' emphasis is inordinate in this case because using Defendants' line of reasoning, anyone with a grudge against X, a description of his car, and an idea of his travel habits can show up to the police station, tell them X deals drugs, pick up a phone, dial numbers, tell the police X is bringing him drugs in his car, and in fifteen minutes, and with nothing more, establish the requisite probable cause to stop X based on a drug violation. The Supreme Court certainly did not mean to sanction this kind of credulity when it decided Gates.
Defendants, in the middle of their brief, immediately switch gears and discuss the standards for an investigatory stop under Terry v. Ohio, 392 U.S. 1 (1968). Under Terry, an officer may temporarily detain and question an individual without probable cause if that officer has an articulable suspicion not an "inchoate and unparticularized suspicion or `hunch,'" Terry, 392 U.S. at 27 that a person has committed or is about to commit a crime. See id. 30-31. Indeed, "[a] brief stop of a suspicious individual, in order to determine [her] identity or to maintain the status quo momentarily while obtaining more information, may be the most reasonable in light of the facts known to the officer at the time." Adams v. Williams, 407 U.S. 143, 146 (1972) (discussing when an informant's tip may carry sufficient "indicia of reliability" to justify a Terry stop even though it may lack the probable cause required for an arrest or search) (citing Terry, 392 U.S. at 21-22)).
Assuming, arguendo, that Defendants satisfied the prescription of Terry in stopping Plaintiff, the subsequent search of Plaintiff's person and vehicle far exceeded what is constitutionally permitted when a suspect is stopped pursuant to Terry. If a suspect is stopped pursuant to Terry, any search undertaken by the police is strictly limited in scope "to an intrusion reasonably designed to discover guns" or other weapons that may be used to harm the police officer. See Terry, 392 U.S. at 29. A search in a stop occasioned under Terry "is not justified by any need to prevent the disappearance or destruction of evidence of a crime." Id. (citing Preston v. United States, 376 U.S. 364, 367 (1964)).
In the case at bar, Defendants searched Plaintiff's vehicle but waited fifteen minutes before Defendant Carter arrived to search Plaintiff's person; it appears that Defendants were not overly concerned with their safety or the likelihood that Plaintiff was carrying a concealed weapon. The search of Plaintiff's person that Defendant Carter did conduct was far more intrusive than was necessary to discover whether she was armed. See discussion supra Part II.A. Moreover, any doubt as to Defendants' motive for the search was quelled by Defendants' explicit affirmations that the search they conducted on Plaintiff's person and her vehicle was for the sole purpose of discovering marijuana.
Therefore, absent Plaintiff's consent, Defendants' full exploratory search of Plaintiff's person and vehicle occurred without probable cause and egregiously violated the standards for a protective Terry "pat-down" search for weapons.
Beceause the issue of Plaintiff's consent is a genuine issue of material fact, the Court cannot determine at this time whether Defendants violated a clearly established constitutional right under the Fourth Amendment, or whether Defendants' prospective violation of that constitutional right was objectively unreasonable. See Harlow v. Fizgerald, 457 U.S. 800, 818 (1982). Therefore, Defendants' request for qualified immunity is DENIED.
V. CONCLUSION
Accordingly, for the reasons stated above, Defendants' Motion for Summary Judgment is DENIED. The issue of Plaintiff's alleged consent to Defendants' to search her person and her vehicle is a disputed genuine issue of material fact that must be submitted to a jury.IT IS SO ORDERED.