Mack v. Maddox et al
Filing
49
MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 3/21/2018. (PSM)
FILED
2018 Mar-21 AM 10:02
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
WILLIE LOUIS MACK,
)
)
)
)
)
)
)
)
Plaintiff,
vs.
WALTER MADDOX, et al.,
Defendants.
7:16-cv-01872-LSC
Memorandum of Opinion
Before the Court is Defendant Deputy M. T. Larkin’s (“Larkin”) Motion
for Summary Judgment. (Doc. 33.)
Plaintiff, Willie Louis Mack (“Mack”),
brought this case alleging federal constitutional violations under 42 U.S.C. § 1983
and comparable state-constitutional claims (Doc. 1.) For the reasons stated below,
Larkin’s Motion for Summary Judgment is due to be granted.
I. BACKGROUND 1
1
The purpose of a motion for summary judgment is to “pierce the pleadings and to assess the
proof in order to see whether there is a genuine need for trial.” Camp Creek Hosp. Inns, Inc. v.
Sheraton Franchise Corp., 139 F.3d 1396, 1400 (11th Cir. 1998) (quoting Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). Thus, the facts as presented in this section are
taken only from statements of fact in the parties’ briefs supported by record evidence. While
Mack includes many unsupported allegations concerning the conduct of Larkin and the West
Alabama Narcotics Task Force (“WANTF”) agents, bare allegations not supported by materials
in the record are insufficient to create a material dispute sufficient to overcome summary
judgment. See Fed. R. Civ. P. 56(c); see also Fed. R. Civ. P. 56(e) (“If a party fails to properly . . .
Page 1 of 17
In the fall of 2014, the West Alabama Narcotics Task Force (“WANTF”)
received information that an individual by the name of Anthony Carl Benson
(“Benson”) was involved in the trafficking of marijuana in the Tuscaloosa area. A
Confidential Information (“C.I.”) informed Larkin, a sheriff’s deputy working
with WANTF, that he had seen a quantity of marijuana in the possession of an
individual named Anthony Carl Benson (“Benson”) at the location 10 Juanita
Drive. (Doc. 33-3 at 2.) After a preliminary records search, Larkin could not verify
that Benson had an interest in the property, but saw that it was a rental property.
“In order to verify the information from the C.I.,” Larkin asked the C.I. to
make a drug buy at 10 Juanita Drive. (Id.; see also Doc. 45 at 33 “Q: . . . you did the
controlled drug buy in order to corroborate [the C.I.’s] information that he had
previously given to you that he had been inside 10 Juanita Drive and observed . . .
Benson with a quantity of marijuana in that home? Larkin: That’s correct.”).) On
November 17, 2014, Larkin equipped the C.I. with a video and audio recording
device and purchase money. The C.I. then recorded his drug purchase from
Benson.
address another party’s assertion of fact as required by Rule 56(c), the court may: . . . (2) consider
the fact undisputed for purposes of the motion; . . . .”).
Page 2 of 17
According to Larkin, “the recording describe[d] [the C.I.] approaching the
residence at 10 Juanita Drive when [he] encountered the suspect.” (Doc. 33-3 at 3.)
Benson was not in the 10 Juanita Drive residence, but in a car parked either at the
residence or at one of the nearby residences. After the C.I. stopped his car and got
out, the video recording momentarily showed a lightly colored house as the C.I.
turned towards Benson’s car. The C.I. then entered the car to buy drugs from
Benson. After the purchase, the C.I. returned to his car and drove away.
Following the buy, the C.I. turned the substance bought over to Larkin.
(Doc. 33-3 at 3.) “The substance was positively identified as marijuana.” (Id.) The
next morning, Larkin returned to where he approximately thought the drug buy
occurred to obtain information on the house located at 10 Juanita Drive. (Doc. 45 at
27-28 (“I verified 10 Juanita Drive by visually seeing it myself and also observing
the distance that [the C.I.] pulled down to 10 Juanita Drive the night before, or
whatever date it was he did the buy. I did research like that to verify the
address.”).)
On November 18, 2014, the day after the controlled drug buy, Tuscaloosa
County Circuit Judge Brad Almond issued a warrant authorizing the search of
Mack’s address, 10 Juanita Drive, which was described in the warrant as “a tan
residence with a red roof,” for controlled substances. (Doc. 33-2 at 75.) The subject
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of the warrant was an individual named Benson, “a black male in his mid[-]twenties
[who is] approximately 6’05” tall and weighs approximately 252 pounds.” (Id.)
Larkin had prepared the warrant application, which asserted that he “received
information from a reliable confidential informant that [the confidential informant]
ha[d] personally observed a quantity of marijuana in the possession of a black male
known as . . . Benson while at his residence of 10 Juanita Drive.” (Id.) Notably, the
warrant application did not include reference to the purchase of marijuana by the
C.I. from Benson that occurred on November 17, 2014. (See id.)
WANTF officers then executed the search warrant at the 10 Juanita Drive
location. Mack, who was present at 10 Juanita Drive at the time, objected to the
search of the residence on the assertion that Benson never lived there nor visited
Mack’s house. Regardless, the officers conducted the search. During the search of
the home, the officers discovered “a pack of rolling papers and a single partially
smoked marijuana cigarette.”
As a result of the search, Mack, proceeding pro se, filed this action against
Defendants Walter Maddox, in his official capacity as the Mayor of the City of
Tuscaloosa, WANTF, and several WANTF agents and criminal investigators in
their individual and official capacities alleging federal and state constitutional
violations. After the Defendants filed motions to dismiss, this Court dismissed the
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claims against all Defendants except Larkin. (See Doc. 23.) This Court granted
Larkin’s motion in part and denied it in part dismissing the claims against Larkin in
his official capacity, but holding that Larkin was not entitled to qualified immunity
at the motion-to-dismiss stage for Mack’s individual capacity claims. (Id.)
Following discovery, Larkin filed his Motion for Summary Judgment seeking
dismissal of the remaining individual capacity claims.
II. STANDARD OF REVIEW
Summary judgment is appropriate “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. P. 56(a). A fact is “material” if it “might affect the
outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). There is a “genuine dispute” as to a material fact “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. The trial judge should not weigh the evidence but simply determine
whether there are any genuine issues that should be resolved at trial. Id. at 249.
In considering a motion for summary judgment, trial courts must
“consider[] all of the evidence and the inferences it may yield in the light most
favorable to the nonmoving party.” McGee v. Sentinel Offender Servs., LLC, 719
F.3d 1236, 1242 (11th Cir. 2013) (citations omitted). Although “pro se complaints
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are entitled to a liberal interpretation by the courts, . . . a pro se litigant does not
escape the essential burden under summary judgment standards of establishing that
there is a genuine issue as to a fact material to his case in order to avert summary
judgment.” Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990) (emphasis
added). In making a motion for summary judgment, “the moving party has the
burden of either negating an essential element of the nonmoving party’s case or
showing that there is no evidence to prove a fact necessary to the nonmoving
party’s case.” Id. Although the trial courts must use caution when granting
motions for summary judgment, “[s]ummary judgment procedure is properly
regarded not as a disfavored procedural shortcut, but rather as an integral part of
the Federal Rules as a whole.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
III.
DISCUSSION 2
Larkin moves for dismissal of Mack’s remaining claims against him in his
individual capacity, arguing he is entitled to qualified immunity. Qualified
immunity “offers complete protection for government officials sued in their
2
Larkin originally filed his Motion for Summary Judgment on October 30, 2017. Thereafter, the
Court granted Mack multiple extensions of time in order to conduct discovery. (See Docs. 35 &
40.) In the final extension of time granted to Mack, the Court emphasized that his Response was
due no later than January 2, 2018. (Doc. 40.) Mack nonetheless failed to file his Response until
January 24, 2018. (Doc. 45.) While Mack gives no good reason for this delay, and Larkin argues
Mack’s tardily filed Response should be struck, (doc. 46), the Court need not resolve this
dispute. Even considering the arguments in Mack’s Response, Larkin’s Motion for Summary
Judgment is still due to be granted.
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individual capacities as long as their conduct violates no clearly established
statutory or constitutional rights of which a reasonable person would have known.”
Hoyt v. Cooks, 672 F.3d 972, 977 (11th Cir. 2012) (citation omitted). “Under
qualified immunity analysis, the public official must first prove that he was acting
within the scope of his discretionary authority when the allegedly unconstitutional
acts took place.” Storck v. City of Coral Springs, 354 F.3d 1307, 1314 (11th Cir.
2003); see also Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir.
2004). If the official is unable to prove that he was acting within his discretionary
authority, he is not entitled to qualified immunity. Lumley v. City of Dade City, 327
F.3d 1186, 1194 (11th Cir. 2003). To determine whether Larkin acted within his
discretionary authority, the Court must ask whether his actions “(1) were
undertaken ‘pursuant to the performance of his duties,’ and (2) were ‘within the
scope of his authority.’” Dang ex rel. Dang v. Sheriff, Seminole Cty., 871 F.3d 1272,
1279 (11th Cir. 2017) (quoting Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir. 1988)).
“In applying each prong of this test, [the court] look[s] to the general nature of the
defendant’s action, temporarily putting aside the fact that it may have been
committed for an unconstitutional purpose, in an unconstitutional manner, to an
unconstitutional extent, or under constitutionally inappropriate circumstances.”
Holloman, 370 F.3d at 1266.
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It is undisputed that Larkin’s preparation of and application for a search
warrant is a proper exercise of his discretionary authority. Larkin directed the C.I.
and later applied for the search warrant as part of his duties working with WANTF,
a task force that specializes in deterring the trafficking and use of illegal drugs,
including marijuana. Courts commonly hold peace officers are acting within their
discretionary authority when they file affidavits and apply for arrest or search
warrants. See Rich, 841 F.2d at 1564. Larkin has thus made his initial showing that
the complained-of actions were within his discretionary authority.
“Once a defendant establishes that he was acting within his discretionary
authority, the burden shifts to the plaintiff to show that the defendant is not
entitled to qualified immunity. Cottone v. Jenne, 326 F.3d 1352, 1358 (11th Cir.
2003). “To overcome qualified immunity, the plaintiff must satisfy a two prong
test; he must show that: (1) the defendant violated a constitutional right, and (2)
this right was clearly established at the time of the alleged violation.” Holloman,
370 F.3d at 1264 (citing Wilson v. Layne, 526 U.S. 603, 609 (1999)).
Mack contends that Larkin violated his Fourth Amendment right to be free
from unreasonable search and seizure 3 by including false statements and making
3
Mack’ Complaint additionally alleges Larkin violated his Fourth, Fifth, Eighth and Fourteenth
Amendment rights when Larkin submitted a knowing and intentionally false probable cause
affidavit to Tuscaloosa County Circuit Judge Brad Almond. (Doc. 1 at 5, 6.) While Mack
correctly notes that the Court did not explicitly dismiss any of his constitutional claims against
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material omissions in the application and affidavit used to procure the search
warrant for 10 Juanita Drive. (Doc. 1 at 6.) To overcome a defense of qualified
immunity, the plaintiff must show that the officer deliberately or recklessly made
false statements in his warrant affidavit that were necessary to a finding of probable
cause to overcome the defense of qualified immunity. See Dahl v. Holley, 312 F.3d
1228, 1235 (11th Cir. 2002). This rule, however, does not apply to
misrepresentations or omissions that were only negligent. Kelly v. Curtis, 21 F.3d
1544, 1554-55 (11th Cir. 1994). Statements in a warrant need not be objectively
accurate but must be “truthful in the sense that the information put forth is
believed or appropriately accepted by the affiant as true.” Holmes v. Kucynda, 321
F.3d 1069, 1083 (11th Cir. 2003) (internal quotations omitted); see Kelly, 21 F.3d at
1554-55 (no Fourth Amendment violation where officer testified to facts during
probable cause hearing that were false, but there was no showing that officer
reckless or intentionally testified to false facts).
Larkin in Larkin’s individual capacity in its Memorandum of Opinion (Doc. 23), all claims except
his Fourth Amendment Claim should have been dismissed as Mack made no showing in any of his
pleadings in opposition to Larkin’s assertion of qualified immunity at the motion-to-dismiss stage
that Larkin (1) violated the Fifth, Eighth, or Fourteenth Amendments, or (2) that those rights
were clearly established. See Holloman, 370 F.3d at 1264. As Mack has not raised any argument in
his Response in Opposition to Summary Judgment concerning other constitutional injuries under
the Fifth, Eighth, or Fourteenth Amendments, he has not met his burden to overcome Larkin’s
assertion of qualified immunity.
Page 9 of 17
In this case, Mack presents no evidence that Larkin deliberately or recklessly
misstated any facts known to him at the time he wrote the affidavit or omitted any
material fact that would negate a finding of probable cause. Mack’s first theory for
Larkin’s Fourth Amendment violation is that Larkin did not sufficiently
corroborate the C.I.’s statements:
[T]here is overwhelming record evidence that Defendant Larkin was
completely unable to state with any level of specificity or
reasonableness that his confidential informant had previously
observed Benson in the possession of a quantity of marijuana while
inside . . . the 10 Juanita Drive residence.
(Doc. 45 at 10.) Mack’s allegation is demonstrably false, and he has presented no
evidence at all to support the above assertion. During Larkin’s deposition, Larkin
repeatedly testified that he (1) relied on his C.I., who had proved to reliable in the
past, (2) asked the C.I. to conduct a drug buy at 10 Juanita Drive to corroborate the
C.I.’s earlier statement that he had seen drugs at that location, and (3) conducted
independent research around the Juanita Drive. (Doc. 45 at 21-24, 27.)
Mack confuses the evidentiary requirements for use of information provided
by a confidential informant. (See, e.g., id. at 12 (“Larkin has offered nothing by way
of sufficient evidence supportive of his self-serving claim what the informant
allegedly told him about Benson.”).) The Eleventh Circuit has held that for:
determining whether an informant’s tip rises to the level of probable
cause, we assess the totality of the circumstances. We consider the
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relevance of factors such as the informant’s “veracity,” “reliability,”
and “basis of knowledge.” In addition, the corroboration of the details
of an informant’s tip through independent police work adds significant
value to the probable cause analysis.
Case v. Eslinger, 555 F.3d 1317, 1327 (11th Cir. 2009) (quoting Ortega v. Christian,
85 F.3d 1521, 1525 (11th Cir. 1996)). Larkin need not present other evidence
outside of his own sworn testimony that the C.I. told him that Benson possessed
drugs at 10 Juanita Drive. Larkin also established the veracity, reliability, and basis
of knowledge of his C.I., and later corroborated the tip by means of a drug buy from
Benson in the vicinity of the provided address and an independent visit to the
location. Larkin’s sworn deposition testimony is sufficient; Mack also admitted
during his own deposition he had no evidence to contradict Larkin’s testimony.
(Doc. 33-2 at 31.)
Nor does it ultimately matter whether the subsequent drug buy occurred at
10 Juanita Drive or in the vicinity of 10 Juanita Drive. The application for search
warrant does not state that the C.I. purchased marijuana from Benson in 10 Juanita
Drive; it states instead that the C.I. observed Benson inside the residence with
marijuana: “YOUR AFFIANT HAS RECEIVED INFORMATION FROM A
RELIABLE [C.I.] THAT HAS PERSONALLY OBSERVED A QUANTITY OF
MARIJUANA IN THE POSSESSION OF A BLACK MALE KNOWN AS
[Benson] WHILE AT HIS RESIDENCE OF 10 JUANITA DR . . . .” (Doc. 33-2 at
Page 11 of 17
75.) Larkin based his statement about the C.I. and Benson being in 10 Juanita Drive
on the C.I.’s statement to Larkin that he had done so. (Doc. 45 at 32 “[T]he search
warrant wasn’t based off the buy. The buy was for me to corroborate his story. The
search warrant was based off him being in the residence prior to me [asking him to]
do[] a buy.”). Larkin states that this particular C.I. had been used in prior cases and
had always proved reliable. (Id. at 21 (“[H]e was a reliable CI. He’d been used
several times, and his information was credible.”). Mack has not shown that the
warrant or “the affidavit supporting the warrant contains deliberate falsity or
reckless disregard for the truth, . . . [or] includes material omissions.” Dahl, 312
F.3d at 1235.
Mack additionally disputes whether Benson and the C.I. were ever in fact
actually in 10 Juanita Drive. Mack’s statement challenges the truth of the C.I.’s
statements to Larkin; but this is irrelevant to whether Larkin deliberately or
recklessly included falsities or material omissions in his affidavit and application for
search warrant. Mack has presented no evidence that the C.I. told Larkin
something different than what Larkin stated in the affidavit because, as Mack
admits, he has no personal knowledge of a conversation between Larkin and the
C.I. (Doc. 33-2 at 31 (“Q: But you don’t have, as we sit here today, you don’t have
any evidence that the [C.I.] told Deputy Larkin that drugs were or were not in your
Page 12 of 17
house, correct? [Mack]: I don’t know what he told Agent Larkin, so I can’t speak
on that, sir.”). While Mack testified during his deposition that neither he nor his
family ever saw Benson or the C.I. in 10 Juanita Drive, this testimony alone does
not prove that Larkin falsified evidence on his affidavit. Instead, Mack’s statement
is relevant to whether the C.I. told the truth to Larkin about being inside 10 Juanita
Drive.
That the C.I. returned to the area around 10 Juanita Drive and bought drugs
from Benson further shows that Larkin attempted to verify the information the C.I.
gave him, and the reasonableness of his reliance.
In his Response, Mack
continually focuses on an approximately one-second period in the C.I.’s video
taken during the buy where the C.I. exits his vehicle to enter the vehicle of Benson
to purchase marijuana. Mack contends that the video includes a brief shot of a
white house that is not his, and thus Larkin should have known the C.I. was
mistaken about which house Benson had previously been in.
Mack contends that the home shown in the video does not have a red roof
and tan sides like 10 Juanita Drive, but is instead a white house with a carport.
(Doc. 45 at 11, 12.) The video clip is unhelpful to Mack’s argument for numerous
reasons. As the home is shown in the video for approximately one to two seconds,
and the frames of the house are portrayed as the C.I. turns to get out of his vehicle,
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it is difficult to even understand which direction the C.I. is oriented in relation to
the home. The C.I. is not at the white house, but near or next to it. The video itself
is highly pixelated and unclear, and does not portray normal colors but appears to
be some form of monochromatic night vision showing all colors in a shade of purple
to red. (Doc. 33-4 (Surveillance Video at 09:28:23-25).) Thus, the house is not
“white” at Mack contends, but a shade of purple, although Mack infers the house
is white based on comparison of its shade of purple with the surrounding features.
More importantly, Larkin stated that he did not use what was visually
portrayed in the video because it was unclear for the reasons stated above. Instead,
Larkin relied on the audio of the recording where the C.I. repeatedly stated that he
was approaching 10 Juanita Drive. 4 (Doc. 45 at 31, 43; see id. at 29-30 (Q: Deputy
Larkin, can you honestly say that the video footage of the controlled drug buy
corroborates the verbal information your [C.I.] gave in the recording? [Larkin]: “I
can’t say about the video, but based off my observation of the distance from where
he was to where I was, his general statement that he went to number 10 Juanita
Drive and that he’d been to the residence prior to us obtaining the search warrant,
because he was a reliable confidential informant at the time.”).) Larkin then
4
Mack additionally focuses on the C.I.’s statement in the video that Benson’s alias was “Zoe.”
Again, this information does not disprove the earlier fact that the C.I. told Larkin that the
dealer’s legal name was Benson, it is just additional information.
Page 14 of 17
double-checked the next day which house really belonged to the address 10 Juanita
Drive, by going to that location and estimating from the video how much time
passed after the C.I. turned onto Juanita Drive until he pulled into a driveway in the
video. (Doc. 45 at 27.)
Even assuming the factual inferences taken from the C.I.’s video in Mack’s
favor, Mack still fails to show that Larkin knowingly or recklessly falsified his
affidavit. Statements in a warrant need not be objectively accurate but must be
“truthful in the sense that the information put forth is believed or appropriately
accepted by the affiant as true.” Holmes, 321 F.3d at 1083 (quotation omitted).
Ultimately, Mack argues a Fourth Amendment violation occurred because he
would have drawn different inferences from the facts that Larkin had before him,
but this is not the Court’s role:
Qualified immunity analysis does not direct courts to play the role of
crime scene investigators, second-guessing police officers’
determinations as to whether a crime was committed with a handgun
or a shotgun, or whether violence was gang related or a domestic
dispute. Indeed, we have warned courts against asking “whether
another reasonable, or more reasonable, interpretation of the events
can be constructed five years after the fact.”
Messerschmidt v. Millender, 565 U.S. 535, 565 (2012) (Sotomayor, J., dissenting)
(quoting Hunter v. Bryant, 502 U.S. 224, 228 (1991) (per curiam)). Even if Larkin
was mistaken in which house he should have put in the affidavit, Larkin had enough
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evidence to warrant his belief that 10 Juanita Drive was the location where Benson
was operating. Larkin had information from a reliable confidential informant that
the informant saw Benson in possession of marijuana in 10 Juanita Drive. (Doc. 332 at 75.) The C.I. then narrates that he is approaching 10 Juanita Drive in the
subsequent drug buy video. (Doc. 45 at 28.) Later, when Larkin returned to the
approximate spot of the drug buy the day after it occurred, a tan house with a red
roof was located beside the area he thought the C.I. stopped his car to make the
drug buy. (Doc. 45 at 27-28.) Finally, a tan house with a red roof occupies the
property at 10 Juanita Drive. From this evidence, the information that Larkin put in
the affidavit could be appropriately accepted by him as true.
In addition, even though Larkin did not mention the possible presence of
another house in the video, nor that he returned to 10 Juanita Drive to corroborate
the address in his affidavit, the omission of these facts does not amount to a Fourth
Amendment violation. An officer is entitled to qualified immunity even though his
affidavit in support of a search warrant contains factual omissions, unless the
officer knows the omission is critical to a finding of probable cause. Haygood v.
Johnson, 70 F.3d 92, 94-95 (11th Cir. 1995); Madiwale v. Savaiko, 117 F.3d 1321,
1327 (11th Cir. 1997). Even considering that Larkin omitted the information
identified by Mack, those omissions are not critical or material to a finding of
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probable cause. That the video showed a home that was not Mack’s at an
undefined location when the C.I. got out of his car does not change the C.I.’s
earlier statement that he had observed Benson with marijuana inside 10 Juanita
Drive. That Larkin physically visited the location and corroborated the C.I.’s story
would actually strengthen Larkin’s application.
IV. CONCLUSION
For the reasons stated above, Larkin’s Motion for Summary Judgment is due
to be GRANTED and Mack’s remaining claims are due to be dismissed. A separate
order consistent with this Opinion will be entered.
DONE and ORDERED on March 21, 2018.
_____________________________
L. Scott Coogler
United States District Judge
190485
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