Mehta et al v. Foskey et al
Filing
61
ORDER granting in part and denying in part 33 & 44 Motion to Dismiss. Plaintiffs' Count 1 for Mehta's arrest, is dismissed, but only to the extent it is asserted against the Alma Officers and Canine Handlers. Plaintiffs' Count II, based on unlawful searches, is dismissed with regards to the Alma Officers and Canine Handlers, except to the extent that those claims are based on the search of Mehta's motel room. Signed by Chief Judge Lisa G. Wood on 6/29/2012. (csr)
3n the tlntteb fitatto latartet Court
for the £'outhtrn Marta of atoraia
Mamma 3ibiton
ATITH H. MEHTA, et al.,
Plaintiffs,
VS.
RICHARD R. FOSKEY, et al.,
Defendants.
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CV 510-001
ORDER
Presently before the Court is a Motion to Dismiss by
Defendants Gourley, Britt, and Osburn (the "Canine Handlers").
Dkt. No. 33. Also before the Court is a Motion to Dismiss by
Defendants Murray and Hewett (the "Alma Officers"). Dkt. No.
44. For the reasons stated below, both motions to dismiss are
GRANTED in part and DENIED in part.
BACKGROUND
When considering a motion to dismiss, the Court must
"accept all well-pleaded facts as true." Solymar Invs., Ltd. v.
Banco Santander S.A., 672 F.3d 981, 985 n.l (11th Cir. 2012).
The relevant events in this case began when a "concerned
citizen" approached Bacon County Deputy Sheriff John M.
Bloodworth ("Bloodworth") about marijuana trafficking at a local
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convenience store, the 3-D Chevron Station in Alma, Georgia ("3D Store"). Am. Compl. ¶ 20, Dkt. No. 25. The 3-D Store sold a
number of items, including smoking devices, over-the-counter
cold medicine, and pornographic magazines and DVDs. According
to the informant, a juvenile went to the 3-D Store and asked for
a pack of cigarettes, but instead was given a cigarette box
containing a marijuana bud. The informant claimed that "an
Indian male" gave the juvenile the drugs. The informant then
gave Bloodworth the alleged contraband, which appeared to be a
small quantity of marijuana. The substance was not tested.
Bloodworth began conducting surveillance on the 3-D Store
that same day. Bloodworth observed a male of Indian descent
working at the 3-D Store counter. He also observed a vehicle, a
silver Acura, in the parking lot of the 3-D store. Bloodworth
ran a check of the Acura's license tag, which revealed that the
vehicle was registered to Plaintiff Atith H. Mehta ("Mehta")
Bloodworth inquired to see if the Georgia Crime Information
Center listed any arrest warrants for Mehta, and found none.
The next day, Bloodworth contacted Defendant John Murray
("Murray"), Captain of the Alma Police Department. Bloodworth
asked Murray for information pertaining to the 3-D Store's
business license. Murray provided Bloodworth with copies of the
3-D Store's application for a business license and the business
license itself. Bloodworth also obtained Mehta's "personal
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2
statement, photocopies of Mehta's Georgia driver's license, his
Permanent Resident Card, and his Social Security Card." Am.
Compi. ¶ 28.
Later that day, Bloodworth petitioned for a search warrant
related to his investigation. The petition sought authorization
to search the 3-D Store, Mehta's vehicle, and Mehta's person.
Bloodworth stated that he had a "reasonable belief that
marijuana [was] concealed" at the identified locations. Am.
Compl. 91 32. The petition listed the targets of the search as
"marijuana, currency, packaging materials, weighing devices, and
'other fruits of [sic] pertaining to the sales and/or
distribution of marijuana.'" Am. Compl. ¶ 30. A Bacon County
Magistrate Judge issued the search warrant that day.'
Bloodworth, along with several other law enforcement
officers, executed the search warrant the same day. It appears
from Plaintiffs' Amended Complaint that Bloodworth and Bacon
County Sheriff Richard Foskey ("Foskey") led the search, but
that police officers from the city of Alma and canine handlers
employed by the state of Georgia also participated in the
search. The search lasted several hours, and for some portion
of the search Mehta was detained outside the store. Later,
Mehta was brought back inside so that Bloodworth and Foskey
The parties did not submit the search warrant to the Court. Based on the
Amended Complaint, there is no indication that the warrant was issued other
than as requested.
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3
could question him. Plaintiffs claim that law enforcement
officers went through the public areas of the store, as well as
the manager's office, sifting through file cabinets and desk
drawers. During the search ., one of the officers asked how to
turn off the store's security surveillance system. The officers
seized pornographic magazines and DVDs, as well as money from
the 3-D Store's cash register and from Mehta's wallet. The
officers did not seize any smoking devices or cold medicine.
Along with the search of the 3-D Store, the officers searched
Mehta's vehicle "inside and out, using [a] drug dog." Am.
Compl. 1 43.
The officers also searched Mehta's person, including his
cell phone. Plaintiffs claim the officers perused Mehta's saved
contacts, asking how he knew various individuals. The officers
interrogated Mehta about the 3-D Store's cold medicine
inventory. When Mehta indicated that he wanted to speak to a
lawyer, Bloodworth allegedly replied, "If you call your lawyer
you'll be in more trouble." Am. Compl. 1 39.
At some point, the officers took Mehta to the motel where
he was residing. Notably, there is no indication that the
search warrant authorized a search of Mehta's residence. Upon
arrival at the motel, Bloodworth told Mehta that if he did not
consent to a search of the motel room, the officers would "get a
search warrant in about 30 minutes." Am. Compl. 9[ 45. Mehta
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4
then "reluctantly" signed a form consenting to the search of the
motel room. Mehta claims that although he did sign the consent
form, he "did not do so intelligently or voluntarily." Am.
Compi. ¶ 45.
During the search of the motel room, Bloodworth found
Mehta's personal laptop computer. Plaintiffs claim, upon
"information and belief," that Bloodworth searched the computer,
accessing Mehta's private files and links. Am. Compi. ¶ 46.
Foskey and Bloodworth continued interrogating Mehta about his
involvement in marijuana trafficking. Foskey told Mehta that he
would drop any criminal charges if Mehta closed his business and
left town. Am. Compi. ¶ 48. Plaintiffs claim, again upon
"information and belief," that the other individual Defendants
heard Foskey's "threats," but did not intervene. Am. Compi. ¶
49.
Despite not finding any contraband, the officers conducting
the search arrested Mehta for distribution of marijuana. Mehta
was taken to the Bacon County Jail, where he was booked then
released on bond. At some point, Foskey allegedly offered "to
drop the state criminal charges if the Sheriff's Office could
keep the money seized during the searches." Am. Compi. ¶ 48.
Mehta declined the offer. Id. Later, Foskey "offered to drop
the charge for just one-half of the money seized." Id. Mehta
declined a second time. Id. Approximately, eleven months after
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the arrest, the charges against Mehta were dismissed by the
Bacon County District Attorney. Am. Compl. ¶ 53. It is not
clear from the Amended Complaint whether Mehta recovered all of
the seized money, half of it, or none of it.
Mehta claims several detrimental consequences flowed from
the search, arrest, and prosecution. Mehta had to hire a
criminal defense attorney to defend against the charges. Mehta
claims that he has suffered "mental and emotional distress,
anxiety, humiliation, outrage, loss of professional and personal
reputation." Am. Compl. ¶ 54. Mehta also claims that the 3-D
Store has experienced a decline in business because of the
negative exposure related to these events. Ultimately, Mehta
and his father decided to sell the business at a loss due to the
controversy.
Mehta further claims that the arrest has had adverse
impacts on his immigration prospects and his ability to travel
abroad. Mehta claims that he has been detained twice by the
Department of Homeland Security at two airports because of
suspicion created by the arrest. Am. Compi. 191 61, 64. The
Department of Homeland Security also required Mehta to report
frequently on the status of the charges, and threatened
deportation to India if the matter was not resolved quickly.
Mehta filed this suit against twelve defendants: Bacon
County Sheriff Richard Foskey; Bacon County Sheriff's Deputy
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John Bloodworth; Bacon County Chief Sheriff's Deputy Mark
Cothern; Bacon County Chief Investigator Cameron O'Neal; Bacon
County Deputy Sheriff Andy Batten; Bacon County Deputy Sheriff
Shane Taylor; Canine Handler Matt Gourley; Canine Handler Kevin
Britt; Canine Handler Mark Osburn; the City of Alma; City of
Alma Police Department Captain John Murray; and City of Alma
Police Department Sergeant Mike Hewett. Mehta asserts ten
claims against the Defendants, but only the first two are
relevant for present purposes. 2 Count One asserts a cause of
action for false arrest in violation of the Fourth Amendment,
pursuant to 42 U.S.C. § 1983. Count Two asserts a cause of
action for unlawful search and seizure in violation of the
Fourth Amendment, also pursuant to § 1983. Counts One and Two
are asserted against all Defendants except for the City of Alma.
Two groups of Defendants have moved to dismiss Plaintiffs'
claims against them: Defendants Murray and Hewett, the City of
Alma Police Officers (the "Alma Officers"), Dkt. No. 44, and
Defendants Courley, Britt, and Osburn, the Ware State Prison
employees (the "Canine Handlers"), Dkt. No. 33. The motions to
dismiss are based primarily on the Plaintiffs' failure to state
a claim upon which relief can be granted, pursuant to Federal
2 The Canine Handlers and Alma Officers only seek dismissal of Counts One and
Two as those counts are the only counts that pertain to them.
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Rule of Civil Procedure 12(b)(6), and the Defendants' assertions
of qualified immunity.
LEGAL STANDARD
Where a defendant challenges a complaint for failing to
adequately state a claim upon which relief can be granted, the
court should apply a "two-pronged approach" in analyzing the
complaint. See Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283,
1290 (11th Cir. 2010) (quoting Ashcroft v. Igbal, 556 U.S 662,
679 (2009)). First, the court should "eliminate any allegations
in the complaint that are merely legal conclusions." Id.
Therefore, the court should ignore "[t]hreadbare recitals of a
cause of action's elements, supported by mere conclusory
statements." Igbal, 556 U.S. at 678. Second, the court should
assume that all well-pleaded factual allegations are true "and
then determine whether [those allegations] plausibly give rise
to an entitlement to relief." Am. Dental Ass'n, 605 F.3d at
1290. Importantly, complaints against defendants who assert the
defense of qualified immunity are held to the same plausibility
standard as other complaints. Randall v. Scott, 610 F.3d 701,
709-10 (11th Cir. 2010).3
3 Earlier in this dispute, the parties sparred over the issue of whether the
Eleventh Circuit imposes a heightened pleading standard in § 1983 cases
involving qualified immunity. Because the United States Supreme Court and
the Eleventh Circuit have clearly rejected such a heightened pleading
standard, and because the parties no longer dispute this point, the Court
evaluates the Defendants' motions to dismiss under an ordinary motion to
dismiss standard. See Alma Officers' Mot. Dismiss, Dkt. No.44, at 3.
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8
In determining plausibility, the court should "draw on its
judicial experience and common sense." Iqbal, 556 U.S. at 679.
Moreover, it is proper for the court to infer "'obvious
alternative explanation[s]' which suggest lawful conduct rather
than the unlawful conduct the plaintiff [s] would ask the court
to infer." ?m. Dental Ass'n, 605 F.3d at 1290 (quoting Iqbal
and relying on Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007)). Ultimately, if the plaintiffs have not "nudged their
claims across the line from conceivable to plausible, their
complaint must be dismissed." Id. at 1289 (quoting Twombly, 550
U.S. at 570).
"A complaint is subject to dismissal under Rule 12(b) (6)
when its allegations, on their face, show that an affirmative
defense bars recovery on the claim." Hardy v. Broward Cnt
Sheriff's Office 238 F. App'x 435, 439 (11th Cir. 2007) (citing
Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003)). "While
the defense of qualified immunity is typically addressed at the
summary judgment stage of a case, it may be . . . raised and
considered on a motion to dismiss." St. George v. Pinellas
Cnty., 285 F.3d 1334, 1337 (11th Cir. 2002); Marsh v. Butler
Cnty., Ala., 268 F.3d 1014, 1022-23 (11th Cir. 2001) (citing
several examples).
Further discussion of the now rejected heightened pleading standard is
unnecessary.
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9
To receive qualified immunity, a government official "must
first prove that he was acting within the scope of his
discretionary authority when the allegedly wrongful acts
occurred. " 4 Hardy, 238 F. App'x. at 439 (11th Cir. 2007)(citing
Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)). "The
burden then `shifts to the plaintiff to show that qualified
immunity is not appropriate."' Id. "The Supreme Court has set
forth a two-part test for the qualified immunity analysis." Id.
(citing Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir.
2002)). A court must first determine "whether [the] plaintiff's
allegations, if true, establish a constitutional violation."
Id. (citing Hope v. Pelzer, 536 U.S. 730, 736 (2002)). "If a
constitutional right would have been violated under the
plaintiff's version of the facts, the next, sequential step is
to ask whether the right was clearly established." Vinyard, 311
F.3d at 1349 (internal quotation marks and citations omitted).
Dismissal of a complaint under Rule 12(b)(6) based on qualified
immunity is appropriate "where, (1) from the face of the
t Discretionary authority includes "all actions of a governmental official
that (1) `were undertaken pursuant to the performance of his duties,' and
(2) were `within the scope of his authority."' Roberts v. Spielman, 643
F.3d 899, 903 (11th Cir. 2011). In the present case, there is no dispute
over whether the Defendants were acting within their discretionary authority
in executing the search warrant and arresting Mehta. Moreover, any
challenge that the Defendants were not acting in their discretionary
authority would be unavailing; it is clear that performing searches and
assisting in arrests are legitimate job-related functions, within the power
of these law enforcement bodies. See Pair v. City of Parker, Fla., Police
Dept., 383 F. App'x 835, 839 (11th Cir. 2010); O.C.G.A. § 35-8-2(8)(A)
(defining peace officers as individuals who have the power of arrest and the
power to investigate and detect crime).
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complaint, (2) [the court] must conclude that (even if a claim
is otherwise sufficiently stated), (3) the law supporting the
existence of that claim - given the alleged circumstances - was
not already clearly established, (4) to prohibit what the
government-official defendant is alleged to have done, (5)
before the defendant acted." Marsh, 268 F.3d at 1023.
Importantly, the qualified immunity determination should be
based on the "four corners of the complaint." St. George, 285
F.3d at 1337 (citing Grossman v. Nationsbank, N.A., 225 F.3d
1228, 1231 (11th Cir. 2000))
DISCUSSION5
I. Unlawful Search and Seizure
The Alma Officers and the Canine Handlers both seek
dismissal of the Plaintiffs' § 1983 unlawful search and seizure
claims. Plaintiffs' Amended Complaint asserts that the Canine
Handlers and Alma Officers participated in some aspects of the
search and were merely present for others. 6 The Amended
Complaint alleges that the Alma Officers participated in the
The Canine Handlers filed their motion to dismiss before the Alma Officers
filed their motion. The Alma Officers incorporated by reference all
arguments and authority set forth in the Canine Handlers' brief and reply.
Dkt. No. 44, at 11. Further, the Alma Officers did not raise new arguments
or novel legal theories in support of their motion to dismiss compared to
those asserted by the Canine Handlers. Therefore, the Court addresses both
motions concurrently.
6
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Plaintiffs' Amended Complaint also asserts that Alma Police Captain John
Murray provided information to Bloodworth during Bloodworth's investigation
leading up to the search. Am. Compi. 11 27, 28. Plaintiffs do not,
however, assert any claim related to the provision of this information.
11
search of the 3-D Store, and that the Canine Handlers "searched
the office and the rest of the [3-D Store]." Am. Compl. 9[91 35,
41.
The Amended Complaint also states "[t]he individual
defendants searched Mehta's car inside and out, using the same
drug dog from the Ware State Prison's Canine Unit." Am. Compl.
1 43. At this stage, the Court must construe paragraph 43 of
the Amended Complaint as meaning exactly what it says - that the
Alma Officers and the Canine Handlers personally participated in
a search of the interior and exterior of Mehta's vehicle.
Likewise, the Amended Complaint alleges that "the defendants
searched Mehta's motel room." Am. Compl. 9[ 51. Again, at this
stage, the Court must construe paragraph 51 of the Amended
Complaint as meaning what it says - that the Canine Handlers and
Alma Officers personally participated in the search of Mehta's
motel room. The Amended Complaint seems to allege Mehta's
person was searched, but does not identify who conducted the
search. See Am. Compl. ¶91 81, 82. The Amended Complaint makes
clear that Bloodworth - not the other Defendants - searched
Mehta's cell phone and laptop computer. Am. Compl. 191 38, 46.
In sum, Plaintiffs' Amended Complaint plausibly alleges that the
' Plaintiffs' Amended Complaint makes clear that the Bacon County Sheriff's
Officers seized pornographic magazines and DVDs during the search, and that
the Alma Officers photographed these items. Am. Compl. 1 35. The Amended
Complaint addresses the seizure of the magazines and DVDs in Count 3, which
is asserted against Foskey, Bloodworth, and O'Neal, not the Alma Officers or
the Canine Handlers. Accordingly, this Order addresses the Alma Officers
and Canine Handlers' participation in the search of the store, but makes no
comment regarding the seizure of the magazines and DVDs.
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Canine Handlers and the Alma Officers personally participated in
the search of the 3-D Store, the car, Mehta's person, and his
motel room, but alleges that they were merely present for the
search of Mehta's phone and his laptop.
A. Standing
The Canine Handlers question the Plaintiffs' standing to
assert an unlawful search claim. Dkt. No. 33, at 11. The
Canine Handlers argue that the individual Plaintiff, Mehta, has
no standing to challenge the search of the 3-D Store and the
business Plaintiff, the 3-D Store, has no standing to challenge
the search of Mehta's person, his car, his cell phone, his
computer, or his motel room. Based on this argument, the Canine
Handlers seek dismissal of any claims asserted by either
Plaintiff for which that Plaintiff does not have standing.
Plaintiffs did not respond to the Canine Handlers' standing
arguments.
Although both the 3-D Store and Mehta are named Plaintiffs
in this action, it is not clear from the Amended Complaint that
Mehta individually challenges the search of the 3-D Store.
Similarly, it is not clear that the 3-D Store challenges the
search of Mehta's person, car, phone, computer, and motel room.
Rather it appears that both the store and Mehta are named so
that Plaintiffs would not face standing challenges. To construe
the Amended Complaint as Defendants do would require the Court
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to go out of the way to find a lack of standing for some of the
claims asserted. The Court has no reason to engage in such a
labored construction. As such, the Court understands the
Amended Complaint as one Plaintiff, the 3-D Store, challenging
the search of the store premises, and the other Plaintiff,
Mehta, challenging the search of his person, his phone, his car,
his computer, and his motel room.
B. The 3-fl Store, Mehta's Car, and Mehta's Person
Plaintiffs' Amended Complaint alleges that the Alma
Officers and the Canine Handlers personally participated in the
search of the 3-D Store, Mehta's Car, and Mehta's person. These
are precisely the areas covered by the magistrate's search
warrant. The Canine Handlers and Alma Officers seek dismissal
of the claims related to these searches on various grounds.8
First, the Defendants argue that the Plaintiffs have failed to
state a claim because the searches were conducted pursuant to a
lawfully issued search warrant, which was supported by probable
cause and sufficiently particularized. Dkt. No. 33, at 14-19.
In the alternative, the Defendants argue that they are entitled
The Canine Handlers argue that dog sniffs of the exterior of Mehta's vehicle
and in the public areas of the 3-D Store are not searches for the purposes
of the Fourth Amendment and therefore Plaintiffs' § 1983 claim based on that
conduct does not state a claim for relief. Dkt. No. 33, at 19. However,
the Amended Complaint alleges that the "individual defendants also searched
Mehta's car inside and out," Am. Compi. ¶ 43, and that the Canine Handlers,
specifically, "searched the office and the rest of the store," Am. Compi. ¶
41. Accordingly, the Court construes the Amended Complaint as alleging that
the Canine Handlers personally participated in the search of Mehta's vehicle
and the entire 3-D Store premises, rather than limiting the allegations to a
few dog sniffs.
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to qualified immunity because there was arguable probable cause
to support the search warrant and because the search warrant was
not so facially deficient that a reasonable officer would
consider that it was invalid. Dkt. No. 33, at 29-30.
Plaintiffs argue that the search warrant was not supported by
probable cause, or even arguable probable cause. Dkt. No. 40,
at 12. Plaintiffs further argue that an uncorroborated
statement from an unnamed third party is not sufficient to
establish probable cause for a warrant. Id. In support of
their position, Plaintiffs cite a number of Georgia cases
dealing with the suppression of evidence in criminal
prosecutions. Id. at 12-13.
The defense of qualified immunity "turns on the objective
legal reasonableness of the action, assessed in light of the
legal rules that were clearly established at the time it was
taken." Anderson v. Creighton, 483 U.S. 635, 639 (1987)
(internal quotations omitted) . "Where [an] alleged Fourth
Amendment violation involves a search or seizure pursuant to a
warrant, the fact that a neutral magistrate has issued a warrant
is the clearest indication that the officers acted in an
objectively reasonable manner." Messerschmidt v. Millender, 132
S.Ct. 1235, 1245 (2012). However, a defendant exercising a
search warrant is not entitled to the defense where "it is
obvious that no reasonably competent officer would have
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concluded that a warrant should issue." Id. (citing United
States v. Leon, 468 U.S. 897 (1984)). The threshold for
establishing this obviousness is a "high one." Id. Indeed, a
defendant relying on a magistrate-issued search warrant is
entitled to qualified immunity unless it would have been
"plainly incompetent" to rely on the warrant because the warrant
was "so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable." Id.
In this case, even taking all facts pled in the Amended
Complaint as true, there is no indication that the magistrateissued warrant was substantially lacking in indicia of probable
cause. Rather, the warrant was based on statements and physical
evidence presented in person to Bloodworth. By no means can the
Court say it is entirely unreasonable or plainly incompetent for
an officer to believe that a search warrant is supported by
probable cause, where the warrant is based on direct statements
to a law enforcement officer that illegal drugs are being sold
at a specific location, and the officer is given physical
evidence of the illegal transaction. Plaintiffs failed to show
that the Canine Handlers and the Alma Officers are not entitled
to qualified immunity for the search of the 3-D Store;
Plaintiffs have not pled facts showing it would have been
plainly incompetent to rely on the magistrate's warrant. Nor
have Plaintiffs pled any facts indicating that the Canine
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Handlers or the Alma Officers were plainly incompetent in
relying on the warrant to search Mehta's person, his vehicle,
and the 3-D Store. As such, the Canine Handlers and the Alma
officers are entitled to qualified immunity from liability
arising from the search of the 3-D Store, Mehta's person, and
ehta's vehicle.
Plaintiffs also argue broadly that the magistrate-issued
warrant was an impermissible "general" warrant because it
authorized the search of three separate locations, without
probable cause to search each individual location. Am. Compl. ¶
82. In effect, Plaintiffs challenge that the search warrant was
not sufficiently particularized with regards to the locations to
be searched. Again, the Court finds no indication in the
Amended Complaint that the warrant was so overly broad that it
would have been plainly incompetent for the Canine Handlers and
the Alma Officers to rely on it in conducting a search of the 3D Store, Mehta's person, and Mehta's vehicle. The warrant
authorized the search of areas closely associated with Mehta:
his person, his business, and his vehicle, and the warrant
adequately identified the contraband and related items. See,
e.g., United States v. Fernandez Martinez, 317 F. App'x 929
(11th Cir. 2009) (holding that a warrant authorizing the search
of a residence, vehicles at the residence, and all persons found
in the residence was not overly broad, given that search was
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limited to places were drugs or weapons might be found). The
warrant was not overly broad in authorizing the search of Mehta,
his car, and the 3-D Store.
In sum, the warrant was not so lacking in indicia of
probable cause or so facially overly broad that the Canine
Handlers and the Alma Officers were plainly incompetent in
relying on it. Thus, the Canine Handlers and the Alma Officers
are entitled to qualified immunity for claims related to
searches conducted pursuant to the warrant.
C. Mehta' s Cell Phone and Laptop
Plaintiffs assert that Bloodworth searched Mehta's cell
phone and laptop. Am. Compl. ¶91 38, 46. The Amended Complaint
does not allege that the Alma Officers or Canine Handlers
participated in the search of these items. Nonetheless,
Plaintiffs argue that the Alma Officers and the Canine Handlers
can be held liable for failing to intervene to prevent these
searches. See Dkt. No. 48, at 19 ("The Alma officers violated
the Fourth Amendment when they witnessed other law enforcement
officers search Mehta's electronic storage devices (cell phone
and laptop computer) but did nothing to stem the effort.-) . 9
The
Canine Handlers and Alma Officers seek dismissal, arguing that
Plaintiffs make this argument in their "Brief Opposing Motion to Dismiss
Filed by Defendants Murray and Hewett." Dkt. No. 48. Plaintiffs do not,
however, assert this theory in their Amended Complaint or in any briefing on
the Canine Handlers' Motion to Dismiss. Because the Court finds the theory
lacking in merit, it is unnecessary to address whether Plaintiffs intended
to argue this theory in reference to the Canine Handlers as well.
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the Plaintiffs have not set forth an unlawful search claim
related to the cell phone and laptop because such a claim would
require personal participation in the searches by the
Defendants. Dkt. No. 33, at 13. Alternatively, the Canine
Handlers and Alma Officers argue that they are entitled to
qualified immunity because there is no clearly established law
requiring a law enforcement officer to intervene to prevent an
unlawful search by another officer. Dkt. No. 33, at 32.
As noted previously, once the Defendants establish that
they were acting in their discretionary authority - which is
without question here - the Plaintiffs have the burden of
persuasion to establish that the Defendants are not entitled to
qualified immunity. To do so, Plaintiffs must show that the
Amended Complaint alleges a constitutional violation of clearly
established law. Plaintiffs cannot point to any controlling
authority that requires a law enforcement officer to intervene
to prevent another officer from performing an unlawful search.
In their briefing, Plaintiffs point to case law establishing
that "bystander liability" - i.e., that law enforcement officers
have an affirmative duty to intervene to protect the
constitutional rights of citizens from infringement by other law
enforcement officers - exists as a general proposition, and is
distinct from supervisory liability. See Dkt. No. 48, at 9
(citing Randall v. Prince George's Cnty., Md., 302 F.3d 188, 203
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(4th Cir. 2002)). Plaintiffs further point to Eleventh Circuit
case law establishing that a law enforcement officer can be
liable for failing to intervene in another officer's use of
excessive force. Id. at 10 (citing Sanders v. City of Union
Springs, 207 F. App'x 960, 966 (11th Cir. 2006); Byrd v. Clark,
783 F.2d 1002, 1007 (11th Cir. 1986)). Plaintiffs have not,
however, demonstrated that the law was "clearly established"
that a law enforcement officer can be held liable under § 1983
for failing to prevent another officer's unlawful search.
"A Government official's conduct violates clearly
established law when, at the time of the challenged conduct,
1 [t1he contours of [a] right [are] sufficiently clear' that
every 'reasonable official would have understood that what he is
doing violates that right.' [It is not necessary to point to] a
case directly on point, but existing precedent must have placed
the statutory or constitutional question beyond debate."
Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2078 (2011) . The fact
that district courts within the same district in the Eleventh
Circuit seem to come out differently on the present issue shows
that the issue is by no means "beyond debate." Compare Lewis v.
Blue, 2010 WL 730210, at *6 (M.D. Ala. Mar. 3, 2010) ("case law
seems to indicate that failure to intervene claims are
cognizable only when related to excessive force violations")
with Sims exrel. Sims v. Forehand, 112 F. Supp. 2d 1260, 1274
AO 72A
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(M.D. Ala. 2000) (holding that an officer could be held liable
for failing to intervene in preventing an unlawful strip
search).
Even assuming that law enforcement officers have a duty to
intervene in unlawful searches when they are in a position to do
so, it cannot be said that the Canine Handlers and Alma Officers
violated clearly established law by failing to intervene in
these particular circumstance. See, e.g., Jones v. Cannon, 174
F.3d 1271, 1286 (11th Cir. 1999) (holding that while case law
generally indicates that an officer can be held liable for
failing to intervene in another officer's use of excessive
force, the absence of authority from the Supreme Court or the
Eleventh Circuit dealing with similar circumstances supported
granting qualified immunity to a defendant) . The facts alleged
in this case are distinct from any case cited by Plaintiffs.
The Canine Handlers and Alma Officers participated in a search,
pursuant to a lawfully issued warrant, following Bloodworth's
informant interview and investigation. The Canine Handlers and
Alma Officers worked for completely separate political
subdivisions from Bloodworth. The law was and is far from
clearly established that the Canine Handlers and Alma Officers
were under a constitutional duty to confront, challenge, and
prevent Bloodworth from inspecting Mehta's phone and laptop.
Accordingly, the Canine Handlers and the Alma Officers are
AO 72A
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21
entitled to qualified immunity on Plaintiffs' claims related to
the phone and laptop.
D. Mehta's Motel Room.
The Canine Handlers and Alma Officers also seek dismissal
of Plaintiffs' claims arising from an allegedly unlawful search
of his motel room. Dkt. No. 33, at 31-32. Mehta concedes that
he consented to the search of his motel room, but contends that
the consent was coerced. According to Plaintiffs' Amended
Complaint, "Bloodworth told Mehta that if he did not allow them
to search both his motel room and his laptop computer, `We'll
get a search warrant in about 30 minutes."' Am. Compl. 9[ 45.
Mehta then signed a "Consent to Search" form, provided by the
officers. Ultimately, Mehta contends that he consented to the
search, but did not do so voluntarily or intelligently. The
Defendants argue that the claims related to the search of the
motel room should be dismissed because (1) the Amended Complaint
fails to state a claim given that Mehta consented to the search,
and (2) the Defendants are entitled to qualified immunity
because there was arguable consent 1 ° to conduct the search. Dkt.
No. 33, at 21, 31.
10
Defendants argue "[a] law enforcement officer is entitled to qualified
immunity for a warrantless search if there was arguable consent to the
search." Canine Handlers' Mot. Dismiss, Dkt. No. 33, at 31 (citing Hanie v.
City of Woodstock, Ga., 2008 U.S. Dist. LEXIS 12247, 20 (N.D. Ga. Feb. 19,
2008). Hanie does not hold that qualified immunity may be based on
"arguable consent," nor does any controlling authority.
AO 72A
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I
22
"[P]olice may conduct a warrantless search of [a] motel
room so long as the occupant voluntarily consents." United
States v. Smith, 199 F. App'x 759, 763 (11th Cir. 2006) (citing
United States v. Butler, 102 F.3d 1191, 1197 (11th Cir. 1997)).
"In assessing voluntariness, the inquiry is factual and depends
on the totality of the circumstances." United States v. Simms,
385 F.3d 1347, 1355 (11th Cir. 2004). Importantly, the
voluntariness inquiry is a "heavily fact-dependent" one. Hudson
v. Hall, 231 F.3d 1289, 1297 (11th Cir. 2000) (quoting
Schneckloth v. Bustamonte, 412 U.S. 218 (1973)). "To determine
whether consent was given voluntarily, [the court] consider[s]:
(1) whether the defendant was free to leave; (2) whether
coercive police procedures were employed; (3) the extent of the
defendant's cooperation or awareness of a right to refuse
consent; (4) whether the defendant could refuse to consent; (5)
the extent of the defendant's education and intelligence; and
(6) the defendant's belief that no incriminating evidence would
be found." Smith, 199 F. App'x at 763 (citing United States v.
Ramirez-Chilel, 289 F.3d 744, 752 (11th Cir. 2002)). Compare
United States v. Tovar-Rico, 61 F.3d 1529, 1535-36 (11th Cir.
1995)(holding that defendant's consent was involuntary where
defendant consented to search following a warrantless entry, and
officers explained that absent consent, the officers would
obtain a warrant) with United States of America v. Welch, 2012
AO 72A
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I
23
WL 2122163, at *4 (11th Cir. June 13, 2012) (holding that
defendant voluntarily consented where defendant's only basis for
coercion was that the officers said that if he did not consent
they would get a warrant, which "would take a while").
Here, Plaintiffs' facts supporting their claim that Mehta's
consent was coerced are exceptionally thin, but not so thin that
Plaintiffs have failed to assert a plausible claim for relief.
Plaintiffs have pled that Mehta was subjected to a multi-hour
search by up to seven law enforcement officers and canine units.
Mehta was interrogated and his store's merchandise was seized.
According to Mehta, Foskey had strongly discouraged Mehta from
contacting his legal counsel and seized money from Mehta's
wallet. At this time, the Court is ill-equipped to make a
"heavily fact-dependent" inquiry into the totality of the
circumstances of Mehta's consent, and determine that his consent
was voluntary.
This is not to say that the claim will survive summary
judgment. It may be that the full facts authorize judgment in
favor of the defendants at the summary judgment phase. However,
Plaintiffs' claims against the Canine Handlers and the Alma
Officers for their participation in the search of Mehta's motel
room adequately state a claim upon which relief may be granted.
The Defendants' motions are denied on this issue, at this time.
AO 72A
(Rev. 8/82)
24
II. Unlawful Arrest
Plaintiffs also assert a cause of action against the Alma
Officers and the Canine Handlers for the unlawful arrest of
Mehta. See Am. Compl. ¶I 73-78 ("Count I"). The parties agree
that Bloodworth carried out the arrest of Mehta." However,
Plaintiffs argue that the other officers on the scene can be
held liable for Bloodworth's conduct because those officers
failed to intervene to prevent the arrest. The Canine Handlers
and the Alma Officers argue that there is no cause of action
under § 1983 for failing to intervene to prevent an unlawful
arrest, and even if there was such a cause of action, the
Defendants are entitled to qualified immunity because they did
not violate clearly established law.
Plaintiffs have pointed to no controlling authority that
requires a law enforcement officer to intervene to prevent
another officer from performing an unlawful arrest. 12 Defendants
Plaintiffs' Amended Complaint uses some general language in describing who
arrested Mehta, i.e., "these defendants . . . arrested Mehta." Am. Compi. ¶
51. However, ultimately, the Amended Complaint makes clear that the Alma
Officers and the Canine Handlers did not personally participate in the
arrest of Mehta. See Am. Compl. ¶ 77 ("To the extent that the Alma Police
Officers and Ware Prison Officers did not physically arrest and transport
Mehta to jail, they are liable for failing to intervene to prevent the
unjustifiable arrest of Mehta."). Plaintiffs' briefing clarifies this point
by demonstrating that Plaintiffs are seeking recovery from these Defendants
based solely on a failure to intervene theory. See Dkt. No. 40, at 14-16;
Dkt. No. 48, at 8.
12
Plaintiffs have cited authority from other Federal Courts of Appeals
applying the failure to intervene or "bystander" theory of liability in §
1983 cases, and Eleventh Circuit cases applying the theory in the context of
excessive force claims. Dkt. No. 48, at 9. Plaintiffs have not cited any
binding authority, and the Court is aware of none, from the Eleventh Circuit
or the Supreme Court, holding that a law enforcement officer can be liable
AO 72A
(Rev. 8/82)
25
rightfully acknowledge a single unpublished opinion from the
Eleventh Circuit indicating that there is a duty to intervene to
prevent an unlawful arrest in some situations. See LeponeDempsey, 159 F. App'x 916, 920 (11th Cir. 2005) (unpublished)
("we do not believe the district court erred in concluding that
a duty to intervene in an unlawful arrest was clearly
established"). However, the weight of Lepone-Dempsey is
questionable. In that case, the court was faced with an
excessive force claim "predicated solely on officers' actions in
arresting [the plaintiff]" as well as an unlawful arrest claim.
Id. at 918. The court based its conclusion about failure to
intervene liability on case law establishing that excessive
force claims should be subsumed into unlawful arrest claims,
where the excessive force claim is based on the unlawfulness of
the arrest. Thus, it is not clear if the court in LeponeDempsey intended to extend failure to intervene liability to all
unlawful arrest situations, or if the court meant that liability
for failure to intervene in an unlawful arrest is appropriate
where there is also an allegation of excessive force. LeponeDempsey is an unpublished opinion and does not clearly establish
under § 1983 for failing to intervene when another officer performs an
unlawful arrest.
AO 72A
(Rev. 8/82)
26
a requirement of intervention in a scenario like the one set out
this Amended Complaint.'3
Plaintiffs also rely on Brown v. City of Huntsville, 608
F.3d 724, 737 (11th Cir. 2010). On one hand, Brown very clearly
states, "[m]erely being present with the arresting officers at
the scene is not enough [to establish § 1983 liability], unless
the plaintiff can show that the defendant officer was part of
the chain of command authorizing the arrest action." Id.
Likewise, Brown states, "Because [the defendant] did not arrest
[the plaintiff] and had no supervisory control over the officer
who did, qualified immunity is appropriate." Id. On the other
hand, Brown states, - and this is the portion Plaintiffs hang
their argument on - "There was no active personal participation
by [the defendant] in [the plaintiff's] arrest, much less an
opportunity to intervene in [the arresting officer's] arrest at
the scene." Id. (emphasis added). Plaintiffs seem to argue
that this off-hand mention of a defendant's opportunity to
intervene in an unlawful arrest clearly establishes that § 1983
13
Only a few other courts in the Eleventh Circuit have cited Lepone-Dempsey
on the failure to intervene issue, and those courts have done so
inconsistently. See, e.g., Williams v. Valaer, 2012 WL 1379842, at *7 (S.D.
Ala. Mar. 20, 2012) (relying on Lepone-Dempsey for the following
conclusions: "There is a duty to intervene when excessive force is being
used. But there is no duty to stop an unlawful arrest."); Valentine v.
Bush, 2012 WL 27416, at *4 (N.D. Ga. Jan. 4, 2012) (citing Lepone-Dempsey
for the proposition that "it [is] well-settled law in this Circuit that
physical participation in the actual arrest is not required to state a cause
of action against a police officer for unlawful arrest; on the contrary, an
officer may be held liable for unlawful arrest where the officer contributes
to the arrest otherwise, such as by participating in the events leading up
to it or encouraging it by failing to intervene," but not specifically
addressing failure to intervene liability).
AO 72A
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27
liability can be premised on an officer's failure to intervene
in another officer's unlawful arrest. However, the Court reads
Brown differently. The quoted passage from Brown uses the
expression "much less an opportunity to intervene" as a
linguistic tool to highlight how little personal participation
the defendant had in the arrest in that particular case. The
passage shows how far below the required minimum level of
involvement that particular defendant exhibited. Read in whole,.
Brown more accurately shows that personal participation in an
arrest, or supervisory control over the arresting officer, is
required in order to establish liability for unlawful arrest mere presence is not enough.
However, even assuming Plaintiffs are correct, and that law
enforcement officers have a duty to intervene in other officer's
unlawful arrests, it cannot be said that the Canine Handlers or
Alma Officers violated clearly established law in this case.
See, e.g., Jones v. Cannon, 174 F.3d 1271, 1286 (11th Cir. 1999)
(holding that while case law generally indicates that an officer
can be held liable for failing to intervene in another officer's
use of excessive force, the absence of authority from the
Supreme Court or the Eleventh Circuit dealing with similar
circumstances supported granting qualified immunity to a
defendant). The Canine Handlers and Alma Officers were asked to
come to the 3-D Store and Mehta's motel room in order to assist
AO 72A
(Rev. 8/82)
II
28
the Bacon County officers' search. Ultimately, Sheriff Foskey
and Deputy Sheriff Bloodworth decided to arrest Mehta.
Plaintiffs argue that the Canine Handlers and the Alma Officers
were under a duty to confront the Sheriff and Deputy Sheriff law enforcement officers from a completely separate political
subdivision - challenge the constitutionality of the arrest,
then intervene in the conduct. There is no allegation that the
Canine Handlers or the Alma Officers had any knowledge of the
facts leading up to the arrest, such as the results of
Bloodworth's investigation, or other circumstances motivating
Bloodworth's decision to arrest Mehta.
The Court is at pains to discern a clear rule in the
Eleventh Circuit case law regarding an officer's liability for
failing to intervene in an unlawful arrest; thus, it is improper
to say that "the contours of the right . . . [are] sufficiently
clear that a reasonable official would understand" that failing
to intervene in an unlawful arrest violates that right.
Anderson v. Creighton, 483 U.S. 635, 640 (1987) . Accordingly,
the Canine Handlers and Alma Officers are entitled to qualified
immunity from Plaintiffs' claims based on Mehta's allegedly
unlawful arrest.
CONCLUSION
For the reasons stated above, Defendants' Motions to
Dismiss are GRANTED in part and DENIED in part. Plaintiffs'
AO 72A
(Rev. 8182)
29
Count I, for Mehta's arrest, is dismissed, but only to the
extent it is asserted against the Alma Officers and Canine
Handlers. Plaintiffs' Count II, based on unlawful searches, is
dismissed with regards to the Alma Officers and Canine Handlers,
except to the extent that those claims are based on the search
of Mehta's motel room.
SO ORDERED, this 29th day of June, 2012.
O GODBEY OOD, CHIEF JUDGE
ISA
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
AO 72A
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