Trammell v. Cornelison et al

Filing 46

OPINION AND ORDER adopting 45 Report and Recommendation and granting 39 Motion for Summary Judgment. Signed by Honorable P. K. Holmes, III on March 22, 2017. (tg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
STEVEN E. TRAMMELL
v.

PLAINTIFF
No. 5:16-CV-05062

JONATHAN CORNELISON, Deputy,
Madison County Sheriff’s Department

DEFENDANT

OPINION AND ORDER
The Court has received a report and recommendation (Doc. 45) from United States
Magistrate Judge Mark E. Ford. No objections have been filed and the deadline to file objections
has passed.

The Magistrate recommends that Defendant’s motion (Doc. 39) for summary

judgment be granted in part and denied in part. In particular, the Magistrate recommends that the
official capacity claim against Defendant should be dismissed, but that the individual capacity
claim against him should proceed. After careful review, the Court will adopt the report and
recommendation in part, and will grant the motion for summary judgment in its entirety.
On February 17, 2015, Defendant witnessed a hand to hand transaction between Plaintiff
and an individual later identified as Dianna Manning. Defendant recognized Plaintiff and stopped
him for driving on a suspended license and without a seat belt, and for outstanding arrest warrants.
In a lawful search of Plaintiff’s vehicle, Defendant located controlled substances and $612 in cash.
As part of a search incident to arrest, Defendant located a cell phone. On February 18, 2015, a
search warrant was issued authorizing a search of the cell phone for, verbatim:
Items to be seized: Information concerning the trafficking of narcotics from the
digital data from the phone (contacts (stored phone numbers), phone calls
(incoming & outgoing), text messages (incoming & outgoing), SMS (incoming and
outgoing), emails (incoming & outgoing), stored media, pictures and video’s) &
audio from a digital recorder. (Note: Only property listed may be seized)
(Doc. 41-2, p. 43). The issuing judge checked a box indicating that the warrant was to be served
1

within three days of its issue and that the warrant and seized property were to be returned to the
judge within five days after execution. Id.
Text messages regarding drug transactions between Plaintiff and Manning were located on
the phone and later led to Manning’s arrest. Additionally, on February 19, 2015, an individual
later identified as Beverly Ball sent a text message to Plaintiff’s phone attempting to purchase
methamphetamine. Someone—apparently Defendant—used the phone to communicate with Ball
to set up a drug transaction. Defendant later located and arrested Ball, who admitted to sending
the text message and to going to the site of the intended drug transaction. Plaintiff suffered no
actual injury from Defendant’s actions, but the report and recommendation notes that he may be
entitled to nominal damages in the event that a constitutional violation occurred.
The Magistrate ultimately concludes that the warrant covered any existing text messages
and any incoming text messages received by the phone prior to the return of the warrant on
February 24, 2015, but that a police officer’s use of the phone to send text messages to set up drug
buys during that time would exceed the scope of the warrant and violate Plaintiff’s fourth
amendment rights. The Magistrate recommends that the individual capacity claim proceed on this
basis. The Court disagrees. Though the technology at issue in the instant case is new, older
precedent from the Fifth Circuit Court of Appeals is useful in determining that Defendant’s use of
the phone to respond to incoming communications attempting to set up drug transactions was
within the scope of the warrant:
The evidence gleaned from the telephone calls is analogous to the seizure of
evidence not described in a search warrant. Evidence not described in a valid search
warrant but having a nexus with the crime under investigation may be seized at the
same time the described evidence is seized. The test is whether the agent had
probable cause to believe that the evidence sought will aid in a particular
apprehension or conviction. Of course the warrant here could not have described
any words to be seized from telephone calls that had not yet been made, but, with
equal certainty, an agent in these circumstances had probable cause to believe that
2

other evidence of gambling could be obtained by answering a ringing telephone in
premises that had already yielded warrant-authorized evidence of gambling. We
should not be understood as holding that this was not a form of search which must
be tested by Fourth Amendment standards of reasonableness. What we find is that
under these circumstances this search did not exceed those standards. The officer
had a duty to gather and preserve this contemporaneous evidence of criminal
activity occurring in his presence. If a number of the calls had been innocent calls
or if the search had been conducted for a prolonged period of time, then the
standards of reasonableness could be transgressed. But the record before us shows
the agent received no innocent calls; rather, all of the 53 calls received during the
four hour period concerned gambling. One further caveat is appropriate. We in
nowise intend to trench upon the rule which holds that in every search an officer
should obtain a warrant as soon as practicable. We simply cannot fault the police
conduct disclosed here.
United States v. Kane, 450 F.2d 77, 85 (5th Cir. 1971) (emphasis added) (citations and quotations
omitted).
Defendant’s communications with Ball occurred during the warrant period. His review of
communications received by the cell phone before the warrant was returned was explicitly
authorized by the warrant. Those communications were intimately related to the illegal conduct
of trade in controlled substances that justified the search warrant in the first place. Defendant’s
communications to Ball were an investigation into contemporaneous evidence of criminal activity
occurring in his presence. The Court cannot conclude on the facts in this case that Defendant’s
use of the cell phone was unreasonable, nor that it exceeded the scope of the warrant.
Accordingly, the report and recommendation (Doc. 45) is ADOPTED IN PART.
Defendant’s motion for summary judgment (Doc. 39) is GRANTED and this case is DISMISSED
WITH PREJUDICE. Judgment will be entered accordingly.
IT IS SO ORDERED this 22nd day of March, 2017.

/s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE

3