WALKE v. CULLEN et al
Filing
65
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MARY A. MCLAUGHLIN ON 10/18/11. 10/19/11 ENTERED AND COPIES E-MAILED TO COUNSEL.(lvj, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
LAVELLE WALKE
v.
JAMES CULLEN, et al.
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CIVIL ACTION
NO. 05-6665
MEMORANDUM
McLaughlin, J.
October 18, 2011
The plaintiff brought this suit alleging constitutional
violations by two police officers.
In 2003, the defendants
executed a search warrant at the plaintiff’s home and then
transported the plaintiff to a field office for questioning.
The
plaintiff alleges that the defendants acted unreasonably in
waiting only 30-40 seconds after knocking and announcing their
presence before entering his home.
He also alleges that
excessive force was used when he was blindfolded and forced to
lie on the floor of the police car during transportation.1
The defendants moved for summary judgment on August 15,
2011.
The Court will grant the defendants’ motion for summary
judgment.
1
The plaintiff’s complaint alleged violations of his Fourth
and Fourteenth Amendment rights in three counts and a violation
of the Pennsylvania Constitution, Article I, § 8 in a fourth
count. The defendants moved for summary judgment on all four
counts. In response to the defendants’ motion for summary
judgment, the plaintiff dropped the two counts. Pl.’s Mem. of
Law in Opp. to Defs.’ Mot. for Summ. J. (“Pl. Mem.”) 2. The two
remaining claims by the plaintiff are addressed here.
1
I.
Summary Judgment Record
The parties do not dispute the underlying facts of this
case.
On December 31, 2003, the defendants, two officers with
the City of Philadelphia police department, along with
approximately nine other officers, arrived at the plaintiff’s
residence to execute a valid search warrant.
The warrant was
based upon controlled buys and confidential information which
suggested that the plaintiff was engaged in cocaine trafficking.
Def. Mot. for Summ. J. (“Def. Mot.”), Ex. A (“Cullen Decl.”) ¶¶
3-5.
The defendants arrived at the plaintiff’s two-story row
home at approximately 7:15 A.M.
At the time, the plaintiff was
asleep in his second story bedroom.
Id.; Pl.’s Mem. of Law in
Opp. to Defs.’ Mot. for Summ. J. (“Pl. Mem.”), Ex. B (“Walke
Decl.”) ¶ 2.
The defendants knocked and announced their presence,
waited 30-40 seconds and then, when there was no answer, forcibly
entered the home.
The plaintiff was found in his bed.
After the
plaintiff was placed in handcuffs and a loaded gun located under
the bed was secured, the plaintiff was read his Miranda rights.
Officer Cullen then explained to the plaintiff why police were
searching his home and requested his cooperation.
The plaintiff
cooperated with the search of his home, helping the officers
recover two guns, money from drug purchases, and over 800 grams
of powder cocaine.
Cullen Decl. ¶¶ 6-8; Pl. Mem., Ex. B (“Hr’g
Tr.”) 23-28.
2
The defendants then detained the plaintiff for further
questioning.
The plaintiff waited, unrestrained, in his kitchen
while both defendants retrieved their car.
defendants’ car.
He was taken to the
The plaintiff was taken to the Narcotics Field
Unit headquarters, the location of which was secret at the time
of the plaintiff’s arrest.
To keep secret the location of the
headquarters and prevent the plaintiff from being seen with
narcotics officers, the plaintiff was blindfolded and directed to
lie on the floor of the car.
request.
The plaintiff complied with this
The defendants questioned the plaintiff at the
Narcotics Field Unit.
The defendants decided to release the
plaintiff without arresting him at that time.
The plaintiff was
blindfolded and asked to lie on the floor of the car again.
He
was released by the defendants at a location near his home.
Cullen Decl. ¶¶ 9-13; Hr’g Tr. 91-93.
The plaintiff was arrested several days later.
He was
charged by federal authorities with intent to deliver more than
500 grams of cocaine, possession of a firearm in furtherance of a
drug trafficking crime, and possession of a firearm by a
convicted felon.
He pled guilty to these counts on October 15,
2005 and was sentenced by the Honorable Judge Diamond on
September 22, 2008 to 123 months incarceration.
The plaintiff is
currently incarcerated at Federal Correctional Institution Milan
in Michigan.
Cullen Decl. ¶ 15; Def. Mot., Ex. C; Def. Mot., Ex.
B (“Compl.”) ¶ 1.
3
The plaintiff experienced anxiety attacks, night
terrors, and sweats following the events of December 31, 2003 and
is still brought to tears by recalling the day.
Walke Decl. ¶¶
3-5.
II.
Analysis
A party moving for summary judgment must show that
there are no issues of material fact and that judgment is
appropriate as a matter of law.
Fed. R. Civ. P. 56(a).
The
moving party bears the initial burden of demonstrating the
absence of any genuine issue of material fact, which may be
satisfied by demonstrating the party who bears the burden of
proof lacks evidence to support his case.
Catrett, 477 U.S. 317, 323 (1986).
Celotex Corp. v.
Once a properly supported
motion for summary judgment is made the burden shifts to the nonmoving party, who must set forth specific facts showing that
there is a genuine issue for trial.
Inc., 477 U.S. 242, 250 (1986).
Anderson v. Liberty Lobby,
A plaintiff cannot “rest[] on
the allegations in his pleadings, but rather must present
evidence from which a jury could find in his favor.”
Sheridan v.
NGK Metals Corp., 609 F.3d 239, 251 n.12 (3d Cir. 2010).
A.
Entry Into the Plaintiff’s Home
Under the protection from unreasonable searches and
seizures provided by the Fourth Amendment, before entering a
dwelling, police officers must knock on the door and identify
themselves.
Wilson v. Arkansas, 514 U.S. 927 (1995).
4
In United
States v. Banks, the Supreme Court considered how to apply the
standard of reasonableness to the length of time police executing
a warrant must wait after knocking and announcing before they can
enter without permission.
540 U.S. 31, 35 (2003).
The Court held that police officers searching for
cocaine acted reasonably when they waited 15-20 seconds after
knocking and announcing before forcibly entering Bank’s home.
Id. at 33.
The Court reasoned that “after 15 or 20 seconds
without a response, police could fairly suspect that cocaine
would be gone if they were reticent any longer.”
Id. at 38.
The plaintiff attempts to distinguish Banks from this
case on two grounds.
First, the warrant in Banks was executed at
two in the afternoon, while the warrant in this case was executed
at seven in the morning, when the plaintiff presumably was
asleep.
Second, the police in Banks executed a warrant in a two
bedroom apartment, while the plaintiff’s residence was a twostory home.
Neither fact distinguishes this case from Banks.
In
Banks, the Court refused to find that police entry was
unreasonable because Banks was in the shower when the police
arrived and therefore unable to hear the knock or destroy
evidence.
The Court was clear that when “judging reasonable
waiting time” the facts known to the police “are what count.”
The police had no way to know that Banks was in the shower when
they knocked, announced, and then entered.
5
Id. at 39.
Likewise,
there is no evidence that the police here knew the plaintiff was
in bed or asleep at the time they knocked and announced.
The Court explicitly addressed arguments about the size
of the residence in Banks.
The Court explained that in a search
for drugs, “the crucial fact in examining [police] actions is not
time to reach the door but . . . the opportunity to get rid of
cocaine.”
Id. at 40.
The Court explained that “[t]here is no
reason generally to peg the travel time to the location of the
door, and no reliable basis for giving the proprietor of a
mansion a longer wait than the resident of a bungalow.”
Id. at
40.
In Banks, the Court found that fifteen to twenty
seconds was a reasonable amount of time for police to wait before
entering to prevent the destruction of cocaine.
As the Court
explained, the hour of the day and size of the house are not
relevant to how quickly a suspect could destroy drug evidence.
Here, as in Banks, the defendants were searching for cocaine.
The defendants knocked and announced their presence and waited
nearly twice as long as the officers in the Banks case before
entering.
No reasonable jury could conclude that the defendants’
decision in this case was unreasonable.
B.
Excessive Force While Transporting the Plaintiff
The Fourth Amendment also protects against excessive
force while being detained by law enforcement.
490 U.S. 386, 388 (1989).
Graham v. Connor,
The inquiry into excessive force is an
6
objective one.
Id. at 397.
The question is whether the
defendants’ actions, in light of the facts and circumstances,
were “objectively reasonable.”
Id.
That is, whether the amount
of force a defendant used was the amount of force which a
reasonable officer would have used under similar circumstances.
A factfinder should consider all circumstances relevant to this
assessment, including the severity of the crime at issue, whether
the plaintiff posed a threat to others, whether the plaintiff was
actively resisting arrest, and whether the physical force applied
was of such an extent as to lead to unnecessary injury.
Id. at
396; Kopec v. Tate, 361 F.3d 772, 777 (3d Cir. 2004); Sharrar v.
Felsing, 128 F.3d 810, 822 (3d Cir. 1997).
Here, the plaintiff surrendered to police commands and
assisted them in locating items in the search warrant.
He was
permitted to remain in his home unrestrained while the defendants
brought their car to the front of the house.
There is no
evidence of a threat to civilians in the area.
Thus there was no
justification for much force.
The force the defendants used, however, was minimal.
The defendants had the plaintiff wear a blindfold and lie on the
floor of the car.
There is no evidence or allegation that the
defendants applied any physical force to the plaintiff nor that
the plaintiff suffered any physical injuries from doing so.
The
Court recognizes that blindfolding and transportation by police
officers can be frightening and intimidating, especially
following an early-morning search of one’s home.
7
In this case,
the plaintiff had cooperated with the police, was unrestrained
prior to his transportation, and was aware of the reason for the
blindfolding and laying on the floor of the car.
The Court
concludes that no reasonable jury could find that this minimal
use of force was objectively unreasonable.
An appropriate order will issue.
8
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