Allen et al v. City of Fredericksburg et al, No. 3:2009cv00063 - Document 75 (E.D. Va. 2011)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 11/9/11. Copy sent: Yes as directed(tdai, )
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division CHERYL L. ALLEN, et al., Plaintiffs, v. Civil Action No. CITY OF FREDERICKSBURG, 3:09CV63 et al., Defendants. MEMORANDUM OPINION Cheryl L. Allen and Rashid A. filed this action under 42 U.S.C. Mustafa, § proceeding pro Ms. 1983. se, Mr. Allen and Mustafa (collectively "Plaintiffs") allege, inter alia, that their constitutional rights were violated during an intrusion into Ms. By Memorandum Opinion and Order entered on Allen's home in 2007.x February 22, 2011, the Court dismissed all of Plaintiffs' claims except for the following two claims: Claim 1 Violations of Plaintiffs' rights under the Fourth Amendment:2 (b) Carter demanded violated that Ms. Carter Allen's secure a rights search when she warrant. "Carter's presence in the plaint[i]ffs['] residence after such a demand constitutes an unlawful act." (Am. Compl. 9.)3 1 The two remaining defendants are Robert Wayne Hunnicutt, a detective with the Fredericksburg Police Department, and G. Carter, a deputy with the Spotsylvania Sheriff's Department. 2 "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const, amend. IV. 3 Because the Amended Complaint is not consistently numbered, the Court employs the page numbers assigned to Complaint by the Court's CM/ECF docketing system. the Amended Claim 4 "Plaintiffs claim that Hunnicutt and Carter the actions constitute of defendants the act of conspiracy . . . ." (Id. at 11.) Specifically, Hunnicutt and Carter agreed that if they could not obtain Ms. Allen's consent and cooperation, they would remain in the residence until they obtained a search warrant. See Allen v City of Fredericksburg, No. 3:09CV63, 2011 WL 782039, at *12 (E.D. Va. Feb. 22, 2011). The matter is before the Court on the Motions for Summary Judgment filed by Hunnicutt Plaintiffs' and Carter {collectively "Defendants") and responses thereto. I. STANDARD FOR A MOTION FOR SUMMARY JUDGMENT Summary judgment must be rendered "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. 56(a). seeking summary It is the responsibility of the party P. judgment to inform the court of the basis for the motion, and to identify the parts of the record which demonstrate the absence of a genuine issue of material fact. 477 U.S. 317, the burden of 323 (1986). proof at See Celotex Corp. v. Catrett, "[W]here the nonmoving party will bear trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file." Id. at 324 (internal quotation marks omitted). motion is properly supported, the pleadings and, the nonmoving party must go beyond by citing affidavits or "^depositions, to interrogatories, and admissions on file,' facts there showing that When the is a genuine issue designate for answers ^specific trial.'" Id. (quoting former reviewing a Fed. summary R. Civ. P. 56(c) judgment motion, and the 56(e) court (1986)). "must draw justifiable inferences in favor of the nonmoving party." States v. 1992) Carolina Transformer Co., 978 (citing Anderson v. Liberty Lobby, (1986)). Nevertheless, F.2d 832, Inc., "[f]anciful 835 In all United (4th Cir. 477 U.S. 242, 255 inferences and bald speculations of the sort no rational trier of fact would draw or engage in at trial need not judgment." 640 Local Union 7107 v. Clinchfield Coal Co., 124 F.3d 639, (4th Cir. County, be drawn or engaged in at summary 1997) 48 F.3d 810, (citing Sylvia Development Corp. 817-818 (4th Cir. 1995)). v. Lastly, Calvert "*Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment.'" Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) (guoting Skotak v. Tenneco Resins, Inc., & n.7 (5th Cir. P. need consider 1992)); only see Fed. R. Civ. cited materials, but 953 F.2d 909, 56(c)(3) it may 915 ("The Court consider other materials in the record."). Defendants submitted affidavits and copies of police records in support of their Motions for Summary Judgment. opposed the statements. Motions for Summary Judgment with Plaintiffs have their own sworn In light of the foregoing submissions and principles, the following facts are established for purposes of the motion for summary judgment. II. A. SUMMARY OF PERTINENT FACTS Background on the Criminal Investigation In January of 2007, Deputy Carter was investigating car breakins and illegal credit card use that had occurred in the Spotsylvania area. (Carter's Br. Supp. Mot. Summ. J. Ex. 1 ("Carter Aff.") SI 2.) Deputy Carter prepared an investigative flyer asking anyone with information related to the crimes to contact him. SI 3.) (Id. On or about January 25, 2007, Deputy Carter received a call from the police in Ohio where Mr. Mustafa had been arrested on November 4, 2006. Aff. SI 1.) (Id. SI 4; Pis.' Mem. Opp'n Mot. Summ. J. Mustafa A search of the vehicle Mr. Mustafa had been driving at the time of his arrest, yielded a gun. which was registered to (Carter Aff. SI 4. ) Ms. Allen, had The serial number of the gun matched the serial number of a gun that had been stolen in one of the car break-ins Deputy Carter was investigating. "Ohio authorities sent [Deputy Carter] (Id. SI 5.) a picture of Mustafa which appeared to match a video still of an individual leaving a Wal-Mart after using a stolen credit card." (Carter Aff. SI 5.) Carter updated his investigative flyer with the picture of Mr. Mustafa sent by the Ohio authorities and the fact of Mr. Mustafa's arrest in Ohio. obtained (Carter Aff. Ex. A.) two warrants for On January 26, 2007, Deputy Carter the arrest of Mr. Mustafa for larceny and possession of a firearm by a convicted felon. Aff. grand (Carter SI 6.) Around this same time, Detective attempting to identify an individual, 4 Hunnicutt also had who turned out to "been be Mr. Rashid A. Mustafa, for criminal activities that occurred in the City of Fredericksburg." Ex. 1 SI 2.)4 ("Hunnicutt Aff.") 2007, Detective Hunnicutt investigative flyer. & (Hunnicutt's Mem. Ex. A.) The Supp. Mot. Summ. J. Sometime prior to January 30, received Deputy Carter's updated (Carter's Br. Supp. Mot. Summ. J. Ex. 3 SI 3 flyer explained that Mr. Mustafa was under investigation in Spotslyvania County for using credit cards that he had stolen from vehicles. Ex. A.) (Carter Br. Supp. Mot. Summ. J. Ex. 3 The flyer encouraged law enforcement personnel who had similar cases or pictures of Mr. Mustafa to contact Carter. B. (Id.) Carter's Initial Arrival at Allen's Residence On January 30, 2007, went to Ms. Deputy Carter and Detective Earl Swift Allen's residence at 200 King Arthur's Way, Apartment 204 in Stafford, Virginia. (Carter Aff. SI 7.) Detective Swift and Deputy Carter asked Ms. Allen if they could come in and ask her some questions. Aff.") SI 6.) (Pis.' Mem. Opp'nMot. Summ. J. Allen Aff. ("Allen Deputy Carter explained that they knew Mr. Mustafa was her boyfriend, that he was in custody in Ohio, and that he had been driving her car. whether Mr. Mustafa prior to his arrest. (Id. SI 7.) had brought (Carter Aff. Deputy Carter asked Ms. Allen any items SI 8.) into their apartment Deputy Carter asked Ms. Allen "if [she] would mind if they 'look around?'" 8.) Ms. Allen responded, 4 Mr. Ohio told detective Mustafa's "'No!'" (Id.) (Allen Aff. SI Deputy Carter stated that Mustafa asserts that in December of 2006, a detective in him that a detective from Fredericksburg and another from Spotsylvania had separately requested a copy of Mr. photo. (Mustafa Aff. SI 6.) he Ms. could obtain a Allen "told search warrant him, 'Get in a the matter search of minutes. warrant (Id.) then!'" (Id.) Plaintiffs' and Defendants' accounts of what happened next diverge. C. Defendants' Version of Events While Waiting for the Search Warrant According to Carter and Swift, as they were preparing to leave the apartment, Hunnicutt. Carter received (Carter Aff. Ex. 2 ("Swift Aff.") SI 4.) [Deputy Carter's] SI 9; a phone Carter's call Br. from Supp. Mot. Detective Summ. J. Detective Hunnicutt "called pursuant to investigative flyer to find out if [Carter] had any information regarding . . . Mustafa that might help him in a related investigation Aff. SI 9.) in the City of Fredericksburg." (Carter When Deputy Carter explained that he was at Ms. Allen's apartment and that she had not given consent to a search of the apartment, warrant and Detective come to Hunnicutt the said apartment he would shortly. obtain a search (Id.) Detective Hunnicutt "asked for the description and location of the apartment complex and [Deputy Carter] gave it to him." After the phone call, impending search warrant. (Id.)5 Deputy Carter told Ms. Allen about the (Id.) Detective Swift and Deputy Allen then "promptly left the apartment." (Id. ) As they were leaving the apartment, Ms. Allen asked if she had to stay in the apartment. 5 In the Amended Complaint, Plaintiffs suggested the phone conversation was feigned or preplanned. Detective Hunnicutt swears, "My phone conversation with Detective Carter was real; it was not feigned, and it was not preplanned. Both he and I happened to be investigating Mr. Mustafa for separate crimes in our respective jurisdictions." (Hunnicutt Aff. SI 5.) (Swift Aff. SI 5.) Detective Swift told her that she did not have to stay in the apartment. (Id.) Deputy Carter and Detective Swift then waited outside of the apartment on the second floor breezeway for Detective Hunnicutt to arrive. (Id. SI 6.) Shortly thereafter, Sergeant Alex S. Smith ("Sergeant Smith") from Stafford County arrived to serve the search warrant. (Id.) When Sergeant Smith arrived, he was met downstairs in the parking lot of the apartment building by Deputy Carter and Detective Swift. Aff.") SI 3.) (Carter's Br. Supp. Mot. Summ. J. Ex. 4 ("Smith Shortly after Sergeant Smith arrived, Detective Hunnicutt appeared with the search warrant.6 (Id. ; Swift Aff. SI 6; Carter served Aff. SI 13.) After Sergeant Smith the warrant, Detective Hunnicutt, Deputy Carter, and Detective Swift entered the apartment. D. (Carter Aff. SI 13; Swift Aff. SI 6.) Ms. Allen's Version of Events While Awaiting the Arrival of the Search Warrant According to Ms. Allen, after she told Deputy Carter to get a search warrant, Deputy Carter answered his phone and said, "'Hey! I was just about to call him and here he is calling me!'" (Allen Aff. SI 9.) "Carter spoke into his phone saying: get the search warrant.'" (Id.) 'she wants us to Ms. Allen insists, "Carter did not give any information whatsoever about where he was at, who [she] was, nor did he give a description of anything (especially the fact that the apartment has a green door, which is listed on the search 6 The magistrate approximately 3:30 p.m. signed off on (Hunnicutt Aff. the SI 8.) search warrant at warrant.)" Allen] (Id. SI 10.) "When Carter put asked him what happens now? (Id. SI 11.) He told Ms. Allen asked Deputy Carter, here?'" (IdJ Deputy Carter replied, "About twenty (20) minutes his phone away [her,] [Ms. 'We wait.'" "'Do you have to wait "'Yes.'" (Id.) later, a knock at the door was answered by Swift who admitted defendant Robert Wayne Hunnicutt into the apartment." (Id. SI 12.) "Approximately five (5) minutes or so after he was inside the apartment, Hunnicutt made a phone call from his cellphone, after which he stated: be here shortly.'" (IcL. SI 13.) 'The warrant will "Ten (10) to [f]ifteen (15) minutes later, a second knock at the door was again answered by Swift. A uniformed Stafford County Sheriff's Deputy entered and gave me a copy of the search warrant and affidavit and immediately left." (Id. SI 14.) E. Defendants' Evidence that They Did Not Engage in a Conspiracy to Violate Plaintiff s Fourth Amendment Rights Detective Hunnicutt swears that he "did not know and had no reason to know that Detective Carter was at Allen's residence when [he] decided to call him because Detective Carter did not [him] that he was going to the apartment in advance." Aff. SI 6; see Carter Aff. SI 11.) tell (Hunnicutt Prior to the phone call Deputy Carter received from Detective Hunnicutt at Ms. Allen's residence, Detective Hunnicutt and Deputy Carter "had never communicated [with each other] regarding SI 7; see Carter Aff. Mr. Mustafa or Ms. Allen." SI 10.) (Hunnicutt Aff. Detective Hunnicutt avers: At no point in time during the investigation of Mr. Mustafa did [he] act jointly with Detective Carter to effect an unlawful conspiracy or tacit agreement to violate either of plaintiffs' constitutional rights. Detective Carter and I simply searched the residence together as part of our investigation of Mr. Mustafa's criminal activity, pursuant to an executed search warrant. (Hunnicutt Aff. SI 12. ) III. A. ANALYSIS Claim 1(b) Fourth Amendment Claim Against Deputy Carter "It is . . . well-established that the police may not invade a person's house without a warrant except under very limited circumstances, such as the presence of exigent circumstances or an occupant's consent." United States v. McMullin, 576 F.3d 810, 814 Deputy Carter does not dispute that if he failed (8th Cir. 2009). to exit Ms. Allen's apartment after she implicitly directed him to leave, he would have constitutional rights.7 1147 (10th Cir. 2009) violated her clearly established See Manzanares v. Hiqdon, 575 F.3d 1135, (holding that police violated homeowner's "clearly established constitutional rights by remaining in his home after consent was withdrawn"); Gates v. Tex. Dep't of Protective & Regulatory Servs., 537 F.3d 404, 426-27 (5th Cir. 2008); Painter v. Robertson, 185 F.3d 557, 567 (6th Cir. 1999) occupant withdrew consent, departed the premises"). "the officers (observing that when should have promptly Deputy Carter insists that he is entitled to summary judgment with respect to Claim 1(b) because he honored Ms. Allen's Fourth Amendment rights and left the apartment after 7 (Carter's Br. Supp. Mem. Summ. J. 7-8. 9 being directed to do so and did not enter the apartment again until the warrant arrived. As reflected above, Ms. Allen insists that Deputy Carter remained in the apartment after she withdrew her consent and implicitly directed him to leave. Thus, there remains a dispute of material fact with respect to Claim 1(b). v. Pauley, 337 F.3d 767, 771 (7th Cir. 2003) See Pavne (observing that to survive summary judgment, a plaintiff does not need to persuade the court that his or her case is convincing, pending dispute omitted)). of material Accordingly, fact" Deputy only "that there is a (internal Carter's quotation motion for marks summary judgment with respect to Claim 1(b) will be DENIED. B. Alleged Conspiracy to Violate Plaintiffs' Constitutional Rights Claim 4 As pertinent here, § 1983, acted [Plaintiffs] jointly in "[t]o establish a civil conspiracy under must present evidence that the concert and that some overt act [Defendants] was done in furtherance of the conspiracy which resulted in" the deprivation of Plaintiffs' Fourth Amendment right to have Defendants vacate the apartment until they obtained a search warrant. Hinkle v. City of Clarksburg, W. Va. , 81 F.3d 416, 421 (4th Cir. 1996) v. Brown, Court of plaintiffs 983 F.2d 570, Appeals "have conspiracy." Id. for 577 the (4th Cir. Fourth Circuit a weighty burden to at 421. Here, 1992)). The United States has establish although (citing Hafner emphasized a civil Plaintiffs produce direct evidence of a meeting of the minds, that rights "need not [they] must come forward with specific circumstantial evidence that each member of 10 the alleged conspiracy shared the same conspiratorial objective." Id. (citing cases). This showing requires Plaintiffs to muster evidence that "at least, reasonably lead[s] to the inference that [Defendants] positively or tacitly came to a mutual understanding to try to accomplish a common and unlawful plan." Id. As reflected above, Ms. Allen has mustered sufficient evidence to demonstrate that her Fourth Amendment rights were violated if Deputy Carter remained in the apartment after she implicitly asked him to leave the apartment until a search warrant was obtained. See Bell v. Johnson, No. 7:09-cv-214, 2011 WL 1226003, at *10 (W.D. Va. Mar. 30, actionable, actual 2011) claim is only to the extent that " ^besides the agreement, an deprivation (observing of a right that secured (quoting Landriean v. City of Warwick, 1980))). a conspiracy by the Constitution'" 628 F.2d 736, 742 (1st Cir. Plaintiffs, however, have not adduced sufficient evidence to allow a reasonable juror to conclude Defendants came to a mutual understanding to accomplish this deprivation. Hinkle, 81 F.3d at 421. Plaintiffs insist Defendants must have conspired because they were both investigating Mr. Mustafa's crimes and had both contacted the authorities in Ohio. call in the apartment, Defendants swear that prior to the phone they investigations of Mr. Mustafa. had not spoken about their Plaintiffs suggest that Defendants' representation in this regard must be false because Deputy Carter did not give any information about 11 where he was, yet Detective Hunnicutt was able to deduce Deputy Carter's location. At best, Deputy Carter's statement upon answering his phone suggests that Deputy Carter and Detective Hunnicutt were each aware of the other's investigation of Mustafa. Plaintiffs speculate that Defendants must have communicated prior to Deputy Carter's entry into the apartment because when Detective Hunnicutt filled out description of the apartment, the warrant, he provided a yet Ms. Allen did not hear Deputy Carter "give a description of anything (especially the fact that the apartment warrant)." is that apartment has a green (Allen Aff. Ms. Allen 1 10.) simply Deputy Carter Pierce v. Burkart, (E.D. Mich. Aug. Moreover, door, Nos. which is listed on the search The reasonable inference, however, did not hear any description provided to Detective 03-74250,04-74185, of Hunnicutt.8 2005 WL 1862416, the See at *5 4, 2005). even Carter's arrival at provided Detective if one were to Ms. Allen's Hunnicutt infer that, residence, with a prior to Deputy description Deputy Carter Ms. had Allen's residence, this fact would not allow a reasonable juror to conclude that Carter and Hunnicutt had a preexisting agreement to violate Ms. Allen's right to have them vacate the apartment until a warrant 8 According to Deputy Carter and Detective Swift, they received the phone call as they were about to leave the apartment. (Carter Aff. SI 9; Swift Aff. fl 4. ) Ms. Allen does not provide any facts regarding her proximity to Deputy Carter during his phone conversation with Detective Hunnicutt. 12 was obtained. v. See Hinkle, Calvert County, 48 81 F.3d at 422; Sylvia Development Corp. F.3d 810, 818 (4th Cir. 1995) (explaining that while the party opposing summary judgment is entitled to the benefit of inferences "[p]ermissible reasonable that inferences probability" can must and be drawn still be that of the competing inferences quotation marks omitted)). the evidence, within the range of inference is "[w]nether reasonable cannot be decided in a vacuum; light from to an it must be considered in the contrary" (internal There is no evidence that Ms. Allen ever instructed Detective Hunnicutt to leave her apartment or that Hunnicutt was aware that Ms. leave her apartment.5 Allen had directed Deputy Carter to Under Plaintiffs' theory, prior to Deputy Carter's arrival at the apartment, Detective Hunnicutt already had a full description of the apartment and sufficient establish probable cause to search the apartment. to suggest what facts Plaintiffs fail advantage Defendants hoped to gain through the elaborate charade they speculate was conducted by Defendants. Heft v. Moore, 351 F.3d 278, 283 (7th Cir. 2003) to See (rejecting as rank speculation plaintiff s claim officer planted drugs where he failed to direct the Court to facts that suggested officer had any motive to plant the drugs). Plaintiffs simply fail to introduce any evidence of sufficient heft for a reasonable juror to conclude, at 9 While Detective Hunnicutt knew he needed to warrant, he also knew that Deputy Carter believed Ms. "going to cooperate." (Am. Compl. 2.) 13 obtain a Allen was the time of the phone call, that Detective Hunnicutt and Deputy Carter had come to a mutual understanding to ignore any request by Ms. Allen to vacate the apartment until a warrant was obtained. Accordingly, Claim 4 will be DISMISSED. Detective No. 63) will Judgment Hunnicutt's be GRANTED. (Docket No. 60) Motion Deputy for Summary Carter's Judgment Motion will be GRANTED IN for (Docket Summary PART AND DENIED IN PART. The Clerk is DIRECTED to send a copy of this Memorandum Opinion to Plaintiffs and counsel of record. An appropriate Order shall issue. Is/ / ill. Robert E. Payne Senior United States District Judge Date: NtfOuaiU^ 4 ?#ji Richmond, Virginia 14
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