Opinion
Civil Action No. 02-M-337 (Consolidated with Civil Action No. 03-M-2603).
March 16, 2005
MEMORANDUM OPINION AND ORDER
In the late afternoon of Saturday, August 19, 2000, Leide DeFusco, Jason Heflin and Jeffrey Carpenter entered a residence at 611 East Evans St. in Pueblo, Colorado, occupied by Daniel Unis, his wife Rosa, and their two sons, David and Marcos. The entrants were officers of the Pueblo Police Department (the "PPD"). Two of them were dressed in the combat garb of a S.W.A.T. team. With drawn firearms, they forced the occupants onto the floor of the kitchen and handcuffed David and Marcos, who were in their underwear. Shortly thereafter, David Sanders and Paul Roach, agents of the Drug Enforcement Administration (the "DEA") went into the house. Sanders accompanied Marcos Unis to his room to permit him to get dressed. Marcos told Sanders that there were weapons and directed him to their location. There were two rifles which Sanders cleared while Marcos dressed. Roach took David Unis to get dressed and conducted a protective sweep for weapons.
The Unis brothers were taken to CBI headquarters in Pueblo. INS Agent Robert Berton guarded them there, after confirming that they were U.S. citizens. DEA Agent William Eldridge attempted to interview Marcos Unis but stopped when Marcos requested a lawyer. At the direction of DEA Agent Kent Florence and CBI Agent Pat Crouch, Berton and Sanders took Marcos and David Unis to the El Paso County Correctional Facility in Colorado Springs. They were held there until Monday morning, August 21, 2000, when they were released. No criminal violations were charged against either of them.
Daniel, Rosa, David and Marcos Unis brought this civil action against these law enforcement agents and others, seeking damages from them for violations of the Fourth and Fourteenth Amendments by the unlawful entry into and search of their residence. David and Marcos seek damages for the violation of their protected rights to be free from unlawful seizure and detention.
The plaintiffs claim common liability of all defendants as participants in a civil conspiracy because they were acting in the context of operations conducted under the authority of the Southern Colorado Drug Task Force ("Task Force"), formed by the DEA in cooperation with the Colorado Bureau of Investigation ("the CBI") and the PPD. Kent Florence, agent in charge of the DEA's Colorado Springs office, acted as the Task Force Supervisor, and Pat Crouch, CBI officer, acted as the group supervisor. A written contract, dated June 1, 2000, between the DEA and PPD provided for deputization of assigned PPD officers as "Task Force Officers" of the DEA pursuant to 21 U.S.C. § 878. (Florence Ex.2). That statute authorizes the designation of state and local law enforcement officers to execute and serve federal search warrants and arrest warrants and to make arrests without warrant if the arresting officer has probable cause to believe that the person to be arrested has committed or is committing a felony cognizable under the laws of the United States.
The plaintiffs have sued for damages on claims arising under 42 U.S.C. § 1983, applicable to those acting under color of state law. The defendants assert that they were acting under federal law. The extent of damages that may be recovered and recovery of attorney's fees will ultimately require a determination of this issue as to individual defendants at some later stage of litigation but for purposes of the present motions for summary judgment, the elements of the claims for liability are the same under Bivens v. Six Unknown Federal Agents, 403 U.S. 388 (1971), and 42 U.S.C. § 1983.
The plaintiffs moved for summary judgment against the defendants' assertions of qualified immunity and the defendants have filed motions for summary judgment of dismissal of all claims, asserting qualified immunity and the inability of the plaintiffs to prove sufficient participation of the respective defendants to make them responsible for constitutional violations. A hearing on the motions was held January 12, 2005, and the court orally granted the motion for summary judgment filed by Luis Torres, dismissing the claims against him. The court also granted the motion for summary judgment filed by the City of Pueblo. The remaining motions were taken under advisement.
The plaintiffs seek liability of all of the remaining defendants as co-conspirators in a common scheme or plan in which the core or hub of the plan is the Task Force and the respective defendants functioned as spokes or branches connected to that hub. The record presented in the papers filed by the parties does not demonstrate the existence of sufficient evidence to support liability of any of the individual defendants for any constitutional violations based upon a theory of such a hub and spoke conspiracy. Accordingly, the motions must be determined based upon what the record shows as support for individual liability of each defendant for his own participation in the events that form the basis for the plaintiffs' claims. The analysis then begins with determining the ability of the plaintiffs to present a triable issue of a constitutional violation and then the support for the liability of each defendant as a participant in that violation.
The Task Force began an investigation into drug trafficking in the Pueblo area in the summer of 2000 and the conduct giving rise to the claims in this case resulted from an undercover operation termed a "buy-bust." The principal target of the operation was Xavier Quintana who had made sales of small quantities of cocaine to a confidential informant ("CI") working with the DEA. David and Marcos Unis had been seen in the company of Quintana in circumstances giving rise to some suspicion that they were associated with his drug trafficking and that cocaine had at times been stored for him in the Unis residence.
On August 12, Agents Florence and Eldridge, acting undercover, together with the CI, met with Quintana at a restaurant in Colorado Springs, where they negotiated for the sale of five kilograms of cocaine at a price of $97,500. Marcos Unis was present at the meeting but did not participate in the discussion.
Later that evening, Marcos Unis telephoned Agent Eldridge to inform him that the source of cocaine had been arrested at the Mexican border.
Two days later Quintana contacted the CI to arrange another meeting for the five kilogram sale. He arranged for the sale of a small amount of cocaine to the CI, delivered on August 16 by Simon Amaro. Delivery of the five kilograms was to take place at a Pueblo motel on Friday, August 18, 2000, and the Task Force planned the "buy-bust" for that time. Crouch gave an operational briefing to Task Force members on the morning of August 18, outlining the plan for the buy-bust operation for that day. Those in attendance were told that no arrest warrants or search warrants had been obtained. A written plan was distributed. The persons delivering the cocaine were to be arrested immediately at the motel. Simultaneous surveillance was to be maintained at the Quintana and Unis residences where knock-and-talks would be conducted after the arrests at the delivery site. Quintana called the CI in the afternoon, calling off the delivery but indicating that there could be delivery on the following day, Saturday.
On Saturday, August 19, 2000, Quintana said that the cocaine would be delivered on short notice. A different motel was selected and the Task Force set up surveillance equipment at the new site. Crouch held another briefing of the participants. Because it was Saturday, there were fewer law enforcement personnel available to conduct simultaneous surveillance at the Quintana and Unis houses as originally planned.
Amaro arrived at the motel with one kilogram of cocaine early Saturday afternoon. He was arrested. While Amaro was in custody at the motel, his cell phone rang several times. The calls were not answered. Sanders and Roach had conducted surveillance at the motel. When Amaro was arrested, they were instructed to go to the Unis residence where they were to conduct the knock and talk with backup assistance from the Pueblo police. Sergeant Andrew McLachlan, who had been at the briefings, went with other PPD officers to the Quintana residence for the same purpose. Sanders and Roach sat in separate vehicles near a park across the street from the Unis residence waiting for PPD officers to assist with the planned knock and talk. There is no indication in the record that Sanders and Roach knew the Unis brothers were at home at that time. Pueblo police officers DeFusco, Heflin and Carpenter arrived at the Unis house and entered without consent of any occupant. Sanders and Roach had no communication with the Pueblo police before they entered the house and the agents were surprised that the PPD defendants abruptly made their entry.
There is uncertainty as to what instructions Sgt. McLachlan received from agents Crouch and Florence. Their reports, written several days after the Unis brothers were arrested are worded in a self-serving manner to avoid any implication of their prior approval of the dynamic entry of the Unis residence. McLachlan understood that there was probable cause to arrest Quintana, Daniel Unis and Marcos Unis for drug trafficking and that the failure to deliver all five kilos created urgency. He went to the Quintana residence with other officers, entered and contacted Quintana's father, mistakenly thinking he was the subject of the investigation. Apparently there was no knock and talk prior to the entry of the Quintana home. The PPD defendants who entered the Unis residence and arrested the brothers understood that there were warrants for their arrest.
In Payton v. New York, 445 U.S. 573 (1980), the Supreme Court invalidated a New York statute permitting police entry into private property to execute an arrest warrant. The Court drew a distinction between the protection of the privacy of a residence provided by the Fourth Amendment and the seizure of the person upon probable cause of criminal conduct. The PPD defendants seek qualified immunity based on their understanding that arrest warrants had been obtained for the Unis brothers. The existence of arrest warrants would not have justified the forcible entry. There is no suggestion that the officers had any basis for a belief that there were search warrants. A federal search warrant, issued under Fed.R.Crim.P. 41, does not authorize breaking open an outer door of a house to execute the warrant unless the officer is refused admittance after notice of his authority and purpose.
The defendants argue that circumstances prevented them from obtaining any warrants. They have no adequate support for that claim. The center of this operation was a controlled purchase of cocaine. The information supporting probable cause for believing that the Unis brothers were associates of Quintana was not different after the arrest of Amaro and the seizure of the cocaine he brought to the motel with him from what it was earlier. Proper planning of this operation, with due regard for the Fourth Amendment, would include obtaining arrest warrants for David and Marcos Unis and a search warrant for the Unis residence before August 18. The delay to Saturday is no excuse. United States Magistrates are on duty through weekends and Fed.R.Crim.P. 41(c)(2) permits obtaining warrants by telephone or facsimile transmission. Warrants could have been obtained on Saturday if the magistrate judge found probable cause for them. The defendants argue that because Amaro had only one of the expected five kilos of cocaine with him, they were concerned that the remainder was in the Quintana or Unis residence. That is nothing more than speculation about possibilities. The defendants have provided no probable cause for implicating Daniel and Rosa Unis in Quintana's drug trafficking. It is not reasonable to believe that they would be unaware if their two sons had 4 kilos of cocaine which they were about to flush down the toilet in their house on this Saturday afternoon.
The entry into the Unis residence was a violation of the Fourth Amendment protections of all four of the plaintiffs and the PPD officers do not have qualified immunity for that violation because a competent police officer would know that it was unlawful. Accordingly, the motion for summary judgment of the defendants DeFusco, Carpenter and Helfin is denied as to the claim for illegal entry of the house. Sgt. McLachlan's liability for the unlawful entry depends upon whether the PPD officers were acting at his direction. There is evidence that he had told them to make the arrest of the two Unis brothers. His statements in the present record are that Crouch asked him "to send two teams to two addresses and go pick up the three remaining parties." The sergeant may have misunderstood the request and may have misapprehended the legalities of the circumstances, erroneously believing that warrantless entry was authorized, but that does not excuse his responsibility for directing the PPD officers. His motion for summary judgment as to the entry is denied.
The liability of law enforcement officers for constitutional violations does not depend upon their subjective intent or state of mind. Their good faith belief in their authority to act is irrelevant. The standard for judging the reasonableness of their conduct is that of a competent police officer with the same knowledge of the facts and circumstances known to the defendants. Whren v. United States, 517 U.S. 806 (1996).
The motions for summary judgment by defendants Crouch and Florence with respect to the entry are also denied. Some evidence suggests that they fully expected Sgt. McLachlan and his officers to do more than support knock and talks by DEA agents. Evidence also suggests that they requested McLachlan to have his officers "go get" the Unis brothers. There is then enough circumstantial evidence to support a finding that these two supervisors of this operation were responsible for the unlawful entry by the PPD officers.
Taking all inferences most favorably to the plaintiffs' position, there is insufficient evidence to support a finding that any other defendant authorized or expected that the Pueblo police would enter the Unis residence as they did. Accordingly, they cannot be held liable for that illegal entry.
The defendants have made a substantial showing of probable cause to believe that Marcos Unis was an accomplice of Billy Quintana in the sale of cocaine and could be arrested without a warrant. There is little evidence of such complicity by David Unis. He was seen in a car with Quintana at the time of a sale of a small quantity of cocaine to the CI on July 26, 2000, but was not with him at the sale and what was known would only make him a bystander. Crouch and Florence suspected that Quintana was storing cocaine at the Unis residence but the observations of his comings and goings there at times near his transactions with the CI are insufficient to support probable cause to believe that the undelivered 4 kilograms would be found there on August 19. The initial arrest of Marcos Unis is supported by probable cause. The arrest of David Unis was not. Because the arrest of David was without probable cause, his arrest and continued detention was a violation of his Fourth Amendment rights for which defendants Heflin, DeFusco, Carpenter, Sanders, Roach, Crouch and Florence may be liable, and his continued detention is a violation of his Fourth Amendment rights for which Crouch and Florence may be liable. Because the arrest of Marcos Unis was supported by probable cause, his claim depends upon whether his continued detention was lawful. At some undisclosed time, an Assistant U.S. Attorney was contacted and declined to authorize charges and detention. It is not clear whether that was on Monday morning when the brothers were released or at an earlier time. To the extent that Marcos was held after the declination to prosecute, Crouch and Florence would be liable for that detention. Additionally, an important element of a finding of probable cause for arresting Marcos was the belief that he was the source of the 5 kilograms of cocaine which Quintana agreed to sell. After the arrest of the Unis brothers and removal of them from their residence, the defendants made no effort to obtain a search warrant to follow up on that suspicion by searching the Unis residence. A reasonable inference is that Crouch and Florence themselves knew that probable cause had dissipated but they continued to hold Marcos beyond the time that would be reasonably necessary to obtain a search warrant for the Unis residence to find evidence of the undelivered drugs. Without that evidence, there was no support for the probable cause that had justified the original arrest and Marcos should have then been released.
Upon the foregoing, it is
ORDERED that the motions for summary judgment filed by Luis Torres and the City of Pueblo are granted and the claims against them are dismissed, and it is
FURTHER ORDERED that the motions for summary judgment filed by defendants Berton and Eldridge are granted and the claims against them are dismissed, and it is
FURTHER ORDERED that the motion for summary judgment filed by defendants McLachlan, Heflin, Defusco and Carpenter with respect to the arrest of David Unis and the entry of the Unis residence is denied. It is granted as to all other claims against them except that ruling on motions for summary judgment on punitive damages is reserved, and it is
FURTHER ORDERED that the motions for summary judgment filed by defendants Crouch and Florence are denied with respect to the entry of the Unis home, the arrest of David Unis and the continued detention of Marcos Unis, but are granted in all other respects except that ruling on motions for summary judgment on punitive damages is reserved, and it is
FURTHER ORDERED that the motions for summary judgment filed by defendants Sanders and Roach are denied with respect to the arrest of David Unis and are granted in all other respects except that ruling on motions for summary judgment on punitive damages is reserved, and it is
FURTHER ORDERED that the plaintiffs' motion for summary judgment is denied.