AGUILAR v. CARVER
ORDER on Defendants' Motion for Summary Judgment: The court GRANTS summary judgment in favor of defendant Mathew Carver on Ms. Aguilar's claim arising from the traffic stop and DENIES su mmary judgment on her claims against Mathew Carver arising from the search of her car. The court GRANTS summary judgment in favor of the City of Seymour on all claims against it. See Order for details. Signed by Magistrate Judge Debra McVicker Lynch on 9/30/2016. (SWM)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
MATHEW CARVER, and
CITY OF SEYMOUR
) Case No.: 1:14-cv-1969-DML-TWP
Order on Defendants’ Motion for Summary Judgment
This matter is before the court on a motion for summary judgment (Dkt. 29)
filed by defendants Seymour Police Department Officer Mathew Carver and the
City of Seymour.
Plaintiff Edna Aguilar is a Honduran citizen who has resided in the United
States since October 2013 and obtained permanent residency in May 2014. Ms.
Aguilar was stopped by Officer Carver on the night of June 12, 2014, for operating a
vehicle without its headlights on, a traffic ordinance infraction under Indiana Code
section 9-21-7-1. A video camera captured portions of the stop, and the following
undisputed facts are established by that recording and other evidence submitted by
the parties. Officer Carver gave Ms. Aguilar a verbal warning for the headlight
infraction but did not issue a written citation for it. At the time of the stop, Ms.
Aguilar was driving her husband’s car while in possession of a Honduran driver’s
license and permanent residency card but no Indiana driver’s license. After
obtaining those documents from her and performing some check of them, Officer
Carver returned to Ms. Aguilar’s car and directed her to step out of the car. He
then had her put her hands behind her back, handcuffed her, and told her she was
going to jail. During the course of this stop, she was placed in two different squad
cars. While Ms. Aguilar was handcuffed and in a police car, Officer Carver
telephoned a deputy prosecutor regarding the situation. After conferring with the
deputy prosecutor, Officer Carver issued Ms. Aguilar a citation to appear in court
under Indiana Code section 9-24-18-1 and did not take her to jail. He also made
arrangements to impound her vehicle. Before the car was impounded, Officer
Carver said, “You don’t have anything illegal on you, do you?” Ms. Aguilar
responded, “No, you can check.” Officer Carver then proceeded to perform some
search of the car.
Additional facts pertinent to the defendants’ motion for summary judgment
will be set forth below in the context of the court’s analysis of the parties’
Ms. Aguilar’s amended complaint alleges Fourth Amendment violations
against Officer Carver based on the seizure of her person (arising from the stop) and
property (arising from the search). (Dkt. 10 ¶¶ 33-34) She also alleges that the
City of Seymour is liable to her for false arrest and conversion under Indiana law
and that the City has respondeat superior liability under Indiana law for the actions
of Officer Carver. (Dkt. 10 ¶¶ 35-37) 1 Interestingly, the parties’ summary
judgment briefs do not match up directly to these claims. They don’t specifically
address state law claims at all, and they argue a claim of Monell liability for failure
to train that is not even mentioned in the amended complaint. The plaintiff
apparently concedes that her state law claims are dependent on her Fourth
Amendment claims, because she has not briefed them separately. And the
defendants apparently concede that Ms. Aguilar’s recitation in the amended
complaint that she “reserves the right to proceed with any and all claims which the
facts averred in this Complaint support” (Dkt. 10 ¶ 38) encompasses a Monell
failure to train claim on which the defendants have moved for summary judgment.
So the court will analyze the claims the parties have briefed.
The defendants filed a motion for summary judgment on all of Ms. Aguilar’s
claims. They argue that the initial, lawful traffic stop did not develop into an
unreasonable seizure because “there is no evidence that Officer Carver prolonged
the traffic stop more than was necessary to investigate the potential crime of
operating without a valid driver’s license.” (Dkt. 30 at p. 9). Beyond that, they
maintain that, even if the stop is considered an arrest, there was probable cause for
it. Second, they contend that even if Ms. Aguilar’s detention was not constitutional,
Officer Carver is entitled to qualified immunity, primarily because the officer
sought legal advice. Next, the defendants assert that the warrantless search of Ms.
Ms. Aguilar does not contest the legality of the initial stop, as she admits that
she had not activated her headlights.
Aguilar’s car did not violate the Fourth Amendment because Ms. Aguilar consented
to the search and, moreover, the search was justified by the “impound inventory
exception” to the warrant requirement. (Dkt. 30 at p. 13). Finally, the defendants
argue that there is no evidence of an official, unconstitutional municipal policy that
would support a finding that the City is liable in this matter. The court addresses
these arguments in turn below, after first discussing the defendants’ threshold
challenge to the admissibility of certain matters Ms. Aguilar has asserted in
opposition to summary judgment.
The Defendants’ Challenge to Ms. Aguilar’s Statement of Facts
At the outset, the court addresses the defendants’ request (in their reply to
Ms. Aguilar’s response) that much of Ms. Aguilar’s “Statement of Material Facts
and Facts in Dispute” in opposition to summary judgment be rejected because the
statement contains “inadmissible hearsay, conclusory assertions, and legal
opinions.” (Dkt. 45 at p. 1). Federal Rule of Civil Procedure 56(c) governs the
procedures for supporting factual positions in support of or in opposition to a motion
for summary judgment. Under Rule 56(c)(2), “[a] party may object that the material
cited to support or dispute a fact cannot be presented in a form that would be
admissible in evidence.” Additionally, this court’s Local Rule 56.1 mandates that a
non-movant in a summary judgment action include in her response “a section
labeled ‘Statement of Material Facts in Dispute’ that identifies the potentially
determinative facts and factual disputes that the party contends demonstrate a
dispute of fact precluding summary judgment.”
The defendants contend that the following paragraphs of Ms. Aguilar’s
“Statement of Material Facts and Facts in Dispute” contain inadmissible hearsay:
6, 8, 10-13, 15, and 20. These paragraphs set forth information that Ms. Aguilar
was allegedly told by the Honduran Office of Transportation, the Indiana BMV, and
her insurance agent with regard to her ability to drive legally in Indiana on a
Honduran driver’s license, as well as information taken from the Indiana BMV’s
official webpage. Whether they are hearsay depends on what the statements are
offered to prove. But what Ms. Aguilar was told or may have believed about the
legality of driving in Indiana on a Honduran driver’s license is largely irrelevant to
the court’s resolution of the defendants’ motion for summary judgment; the court
will therefore disregard these paragraphs for purposes of its analysis.
The defendants also argue that paragraphs 14, 15, 18, 19, 20, 36, 37, 41, 60,
and 68 do “no more than assert legal opinions, recite legal authorities, or
summarize what she claims state agencies ‘require.’” (Dkt. 45 at p. 2). Paragraph
14, for instance, contains a lengthy excerpt of the Geneva Convention on Road
Traffic. (Dkt. 41 at p. 4). Paragraphs 15, 19, and 20 provide information on the
Indiana BMV’s procedures for obtaining a driver’s license. Paragraph 18 reads as
Not only do citizens of other countries who move to Indiana from their
home countries enjoy the one-year driving privilege bestowed upon them
by U.S. treaty law, but, as a practical matter, the lengthy and time
consuming process to obtain a valid Indiana driver’s license make it
impossible for them to obtain an Indiana driver’s license within sixty
days. Aguilar Aff. 14; Kirts Aff. 12.
(Dkt. 41 at p. 5). The court notes that the first part of the above-quoted paragraph,
which asserts what “citizens of other countries” enjoy, is not supported by the cited
portions of the record. Paragraph 36 simply recites the text of Indiana Code section
34-28-5-3. Paragraph 37 states: “For ordinance violations, officers have the
discretion to either issue a verbal or written warning or issue a citation to appear in
court for the violation. Carver Depo. 20; Ind. Code 34-28-5-3.” The court agrees
that these statements are more legal than factual, but that incorrect denomination
does not mean the court must disregard them if those statements of the law are
nonetheless relevant to the resolution of the issues before the court.
As to the other paragraphs challenged by the defendants, Paragraph 41
states: “Ms. Aguilar produced her valid Honduran driver’s license and her
permanent residency card. Aguilar Aff. 25.” (Dkt. 41 at p. 8). Because the
defendants have not conceded the validity of Ms. Aguilar’s Honduran license—
referring to it with qualifying terms such as “what purported to be a Honduran
driver’s license” (Dkt. 30 at p. 3), or “what she claims is a license to drive issued by
the Republic of Honduras” (Dkt. 45 at p. 2)—the claim that hers was a “valid
Honduran license” is a potentially relevant fact. Paragraph 60 states, “Mrs.
Aguilar’s license was an international driver’s license, issued to her in Honduras.
Aguilar Aff. 5-6.” (Dkt. 41 at p. 11). This, too, is a potentially relevant fact.
Moreover, the defendants have not disputed these assertions, and the court
assumes their truth for purposes of the motion. And finally, in Paragraph 68, Ms.
Aguilar asserts the following: “Chief Abbott is the final policymaker for the City of
Seymour on the training received by Seymour police officers on this issue, and is the
person responsible to decide if his officers need any additional training or provided
clarification of the law they are about to enforce. Abbott Depo. 25-26.” (Dkt. 41 at p.
12). This statement is supported by the portion of the record cited and could
ultimately be a relevant fact in this case.
The court therefore does not “reject” all the challenged portions of Ms.
Aguilar’s statement of facts. Rather, it will consider her assertions only to the
extent consistent with the foregoing analysis of them. The court now turns to the
substantive issues raised by the summary judgment motion.
Unreasonable Seizure/False Arrest under the Fourth Amendment
It is well established that the Fourth Amendment prohibits unreasonable
searches and seizures. See, e.g., Huff v. Reichert, 744 F.3d 999, 1004 (7th Cir. 2014).
As the Second Circuit has recognized, two categories of seizures of the person
implicating the protection of the Fourth Amendment have emerged in the caselaw.
Posr v. Doherty, 944 F.2d 91, 98 (2d Cir. 1991). The first is an “investigative
detention” or Terry stop, which employs “the least intrusive means reasonably
available to verify or dispel the officer’s suspicion in a short period of time,” and is
supportable by reasonable suspicion, rather than requiring probable cause. See id.
(citing Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325 (1983) (“The scope
of the detention must be carefully tailored to its underlying justification.”)). The
Fourth Amendment allows officers to “stop and briefly detain a person for
investigative purposes if the officer has a reasonable suspicion supported by
articulable facts that criminal activity ‘may be afoot.’” United States v. Wilbourn,
799 F.3d 900, 908-09 (7th Cir. 2015) (citing United States v. Sokolow, 490 U.S. 1, 7
(1989); Terry, 392 U.S. at 21). When determining whether an officer had reasonable
suspicion, courts examine the totality of the circumstances known to the officer at
the time of the stop, including the experience of the officer and the behavior and
characteristics of the suspect. United States v. Lawshea, 461 F.3d 857, 859 (7th Cir.
But a traffic stop will be considered an arrest for Fourth Amendment
purposes if it extends beyond the time reasonably necessary to complete the purpose
for which the stop was made. Huff v. Reichert, 744 F.3d 999, 1005 (7th Cir. 2014).
Ms. Aguilar argues that this was indeed an arrest; the defendants maintain that it
was a mere Terry stop. Nonetheless, the defendants contend in their reply brief
that even if Ms. Aguilar was placed in “full custodial arrest,” the facts show that
Officer Carver had probable cause to do so. (See Dkt. 45 at p. 5). To be deemed
reasonable, a warrantless arrest made in public must be supported by probable
cause. Gutierrez v. Kermon, 722 F.3d 1003, 1008 (7th Cir. 2013) (citing United
States v. Watson, 423 U.S. 411, 414-24 (1976)). Probable cause to arrest exists if the
totality of the circumstances known to the officer at the time of the arrest would
warrant a reasonable person’s belief that the arrestee had committed, was
committing, or was about to commit a crime. Id. The existence of probable cause is
an absolute defense to a §1983 claim for false arrest. Id. at 1007.
Here, Ms. Aguilar alleges in her amended complaint that the defendants
falsely arrested her (and illegally seized her property). 2 (Dkt. 10). The defendants’
initial memorandum in support of their motion for summary judgment frames the
issue as a reasonable Fourth Amendment seizure (or reasonably prolonged traffic
stop), rather than a false arrest. (Dkt. 30 at p. 8). But their reply brief argues that
“even if it is as [Ms.] Aguilar contends and she was placed in full custodial arrest,
the facts presented to Officer Carver gave him the constitutional authority to
effectuate such an arrest.” (Dkt. 45 at p. 5).
The court does not need to decide, nor will it, whether Ms. Aguilar’s detention
was a Terry stop or an arrest and, if the latter, whether it was supported by
probable cause. As explained in section III below, the right of Ms. Aguilar to drive
legally in Indiana on her Honduran driver’s license is, at best for her, not clear.
Officer Carver therefore has qualified immunity on the false arrest claim. And
because, as explained in section V below, there is no evidence to support Monell
liability of the city for the arrest based on failure to train, there is no need to
address the claim further.
Qualified Immunity for Officer Carver
“Qualified immunity protects an officer from liability if a reasonable officer
could have believed that the action taken was lawful, in light of clearly established
law and the information the officer possessed at the time.” Phillips v. Community
As noted above, Ms. Aguilar does not contest the legality of the initial stop, as
she admits that she had not activated her headlights. (Dkt. 41 at p. 8, 16).
Ins. Corp., 678 F.3d 513, 527-28 (7th Cir. 2012). Thus, the court examines two
questions: (1) whether a constitutionally protected right has been violated and (2) if
so, whether the right was clearly established at the time of the violation. Alexander
v. City of Milwaukee, 474 F.3d 437, 444 (7th Cir. 2007). An officer is entitled to
qualified immunity where clearly established law does not show that his conduct
violated the Fourth Amendment. Pearson v. Callahan, 555 U.S. 223, 243-44 (2009)
(in which the Supreme Court held that in resolving government officials’ qualified
immunity claims, courts need not first determine whether facts alleged or shown by
plaintiff constitute violation of a constitutional right). This inquiry 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. Id. at 244 (internal quotation
The Seventh Circuit has also held that “a court can grant qualified immunity
even when an official’s conduct violated clearly established law (which he is
presumed to know) under some circumstances when the official relied on legal
advice in taking action.” Finch v. City of Indianapolis, 886 F.Supp.2d 945, 979 (S.D.
Ind. 2012) (citing Davis v. Zirkelbach, 149 F.3d 614 (7th Cir. 1998)). In general,
advice of counsel does not give rise to a qualified immunity defense; but some
circumstances can give rise to the extraordinary level, and the Davis court noted a
number of objective factors that may tend to demonstrate that the reliance and
advice are of the extraordinary type appropriate to insulate the official from
liability. See Davis, 149 F.3d at 620. These factors include the following:
Relevant factors include how unequivocal, and specifically tailored to
the particular facts giving rise to the controversy, the advice was,
whether complete information had been provided to the advising
attorney(s), the prominence and competence of the attorney(s), and how
soon after the advice was received the disputed action was taken.
Id. (quoting V-1 Oil Co. v. Wyoming, 902 F.2d 1482, 88-89 (10th Cir. 1990) (internal
quotations, citations, and footnotes omitted).
A. “Advice of Counsel” Qualified Immunity
The court will address the latter issue first: the defendants’ argument that
Officer Carver’s telephone call to Deputy Prosecutor Tyler Banks for legal advice
entitles him to qualified immunity. The court finds that Officer Carver is not
entitled to qualified immunity under the advice-of-counsel exception. As discussed
above, advice of counsel gives rise to a qualified immunity defense only in
extraordinary circumstances, and they are not present here. To begin with, the
defendants have provided very little information about the legal advice allegedly
given to Officer Carver. In his deposition, Ms. Aguilar’s attorney asked Officer
Carver about his call to Deputy Prosecutor Tyler Banks, and the following colloquy
[Officer Carver]: I called Deputy Prosecutor Banks.
[Ms. Aguilar’s attorney]: What did you tell him?
A: Basically I explained to him the traffic stop in itself, reason why I
pulled them over, the things I that had acquired during the traffic stop
is what I explained to him.
Q: Okay. You say you advised Deputy Prosecutor Banks that you had
stopped her for the headlight violation; correct?
A: That is correct.
Q: And that she had a document that she said was a valid Honduran
A: Yes, that she advised that, yes.
Q: And did you advise him whether you had determined whether
that’s a valid license or not?
A: No. There’s no way for me to determine that.
Q: And why did you call Tyler Banks?
A: Basically the reason why I called him is because I wanted to,
number one, give her the benefit of the doubt. I wanted to make sure
that I did everything possible, that I made the right call[.] . . . She was
pretty adamant that she was able to drive, and she had said that her
husband told her she could drive and that the insurance company had
told her she could drive. I wanted to make sure I was doing the right
Q: . . . Did you tell Tyler Banks that you were going to have her taken
A: That was the whole basis of me calling him is to get his
determination on what he thought would be the best setup for this
Q: Did he advise you on what the law was in driving on a foreign
national license in the United States?
A: He did not.
Q: Did he express that the law is somewhat confused in that area and
he wasn’t sure whether that was illegal or not?
A: All he advised me that based on what I advised that the best option
would be to cite her in to court.
Q: The best option rather than take her to jail?
A: There were only two alternatives at that point. He advised me that
he couldn’t tell me. You know, you can never just say do this or do
that, you know, but he said your best option given the situation would
be cite her in to court.
Q: So he didn’t tell you, hey, what you’ve told me that she’s done an
illegal act. Go ahead and arrest her; correct?
A: He didn’t advise me not to. He just advised that your better option
would be to cite her in to court.
Q: . . . He didn’t advise you any more on the law than what you
already knew; correct?
Q: And you’re not testifying that Tyler Banks told you to go ahead and
cite her in to court, that he instructed you to do that; correct?
A: He advised me that that would be the best option.
Q: The better option of the two that you presented him of taking her to
jail or citing her in to court?
A: I laid out the facts to him, and he told me that my better option in
that sense would be to cite her in to court. That’s what he told me.
Q: Rather than arrest her?
A: That’s correct.
(Dkt. 31-3 at p. 18-28.)
Thus it appears that Deputy Prosecutor Tyler Banks, who was not himself
deposed, avoided entirely the question of the legality of Ms. Aguilar’s driving on a
Honduran driver’s license and instead limited his “advice” to telling Officer Carver
to cite her in to court rather than arrest her. Given the factors identified by the
Davis court—including “how unequivocal, and specifically tailored to the particular
facts giving rise to the controversy, the advice was”—Deputy Prosecutor Banks’s
advice was clearly not “of the extraordinary type appropriate to insulate the official
from liability.” Davis, 149 F.2d at 620. To qualify for this exception, it is not
enough simply to assert that an attorney was consulted; without a showing that the
advice the attorney provided was reasonably unequivocal and specific to the facts
and was provided by a demonstrably competent attorney, the court cannot say that
this warrants the “advice of counsel” protection of qualified immunity for Officer
B. General Qualified Immunity
The court now turns to the question of whether qualified immunity is
nonetheless warranted because clearly established law does not show that Officer
Carver’s conduct violated the Fourth Amendment. Pearson, 555 U.S. at 243-44.
This inquiry 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. Id. at
244 (emphasis added, internal quotation omitted).
As a preliminary matter, Ms. Aguilar contends in her surreply brief that the
defendants have waived any qualified immunity arguments other than the “advice
of counsel” approach. First, although it is true that the defendants initially argued
that Officer Carver was entitled to qualified immunity because he had sought the
advice of legal counsel, it cannot be said that they completely failed to raise the
qualified immunity argument in their initial memorandum or raised it for the first
time in their reply brief. See, e.g., Hernandez v. Cook County Sheriff’s Office, 634
F.3d 906, 913 (7th Cir. 2011) (“While arguments made for the first time in a reply
brief are generally treated as waived, it does not necessarily follow that arguments
that are better developed in a reply brief are waived.”). Moreover, the rationale
generally cited for prohibiting new arguments in the reply brief is to ensure that the
opposing party is not prejudiced by being denied sufficient notice to respond to an
argument. See id. But here, Ms. Aguilar had an opportunity to respond to the
defendants’ argument in her surreply brief and chose instead to argue waiver alone.
Accordingly, the court does not find that the defendants waived their argument that
Officer Carver is entitled to qualified immunity because of the lack of clearly
established law governing Ms. Aguilar’s right to drive in Indiana with a Honduran
The court now turns to the matter of “clearly established law,” that is, the
law governing Ms. Aguilar’s driving in Indiana with a (presumably valid) Honduran
license. 3 The parties have not pointed to any Indiana state statute that covers a
person in Ms. Aguilar’s situation. Indiana Code section 9-24-1-1 states that, except
as provided in Section 9-24-1-7 (discussed below), an individual must have a valid
driver’s license or permit issued to the individual by the bureau to operate upon the
highway the type of motor vehicle for which the driver’s license or permit was
In her affidavit, Ms. Aguilar states that her Honduran driver’s license was
issued on July 25, 2013. (Dkt. 41-1 at p. 1).
issued. Indiana Code section 9-24-1-7 (“Exempt persons”) provides in relevant part
(a) Section 1 of this chapter does not apply to the following individuals:
(3) a nonresident who:
(i) at least sixteen (16) years old and one hundred
eighty (180) days of age; or
(ii) employed in Indiana;
(B) has in the nonresident’s immediate possession a valid
driver’s license that was issued to the nonresident in the
nonresident’s home state or country; and
(C) is lawfully admitted into the United States[.] . . .
(4) A new Indiana resident who:
(A) possesses a valid driver’s license issued by the state or
country of the individual’s former residence; and
(B) is lawfully admitted in the United States;
for a period of sixty (60) days after becoming an Indiana resident[.]
(emphasis added). And, finally, Indiana Code section 9-24-18-1 (“Driving without a
license”) provides that except for an individual exempted under Indiana Code
section 9-24-1-7 (discussed above), an individual who knowingly or intentionally
operates a motor vehicle upon a highway and has never received a valid driver’s
license commits a Class C misdemeanor. 4
Driving without a license is a Class A misdemeanor if the individual has a
prior unrelated conviction.
Ms. Aguilar moved from Honduras to Indiana in October 2013, applied for
permanent residency status on January 1, 2014, and obtained her permanent
residency card on May 31, 2014. The stop at issue in this case occurred on June 12,
2014. At the time of the stop she therefore had been an Indiana resident for
considerably longer than sixty days, which means she didn’t qualify for either of the
two categories of “exempt persons” discussed above. See Ind. Code § 9-24-1-7; cf.
United States v. Urrieta, 520 F.3d 569, 574 (6th Cir. 2008) (plaintiff was not a
Tennessee resident but was just passing through the state, and a Tennessee state
statute provided that “a resident of any state or country may operate a motor
vehicle in Tennessee with a valid license issued by the person’s home state or
Ms. Aguilar nonetheless maintains that she could drive legally in Indiana for
up to a year with just her Honduran driver’s license, and her asserted basis for that
right is two separate international treaties: the Convention on Road Traffic
(Geneva, 1949) and the Convention on the Regulation of Inter-American Automotive
Traffic (Washington, 1943). In her initial response to the defendants’ summary
judgment motion, Ms. Aguilar cites numerous cases that discuss these “federal
treaty rights.” (Dkt. 41 at p. 18) (citing, e.g., United States v. Reyes-Gomez, 2013
WL 4776461 (E.D. Kentucky Sept. 4, 2013) (“The court notes that non United States
citizens may drive in the United States on their valid foreign license and an
International Permit for up to one year from the date of admission into the United
States, so long as the individual’s home country is part of the Geneva Compact.”);
Urrietta, 520 F.3d 569 (because a Tennessee state statute provided that a resident
of any state or country may operate a motor vehicle in Tennessee with a valid
license issued by the person’s home state or country, government withdrew the
argument that person’s extended detention was justified because his Mexican
license was invalid).
The problem with the plaintiff’s approach, however—as the defendants argue
in their reply brief—is that it is not at all clear that these treaties actually apply in
this case or confer the rights on which Ms. Aguilar bases her claims. To begin with,
the defendants argue that Ms. Aguilar’s home country of Honduras is not actually a
party to the 1949 Convention on Road Traffic, which renders that treaty wholly
inapplicable in this case. (See Dkt. 45 at p. 11). 5 Next, the defendants contend that
the other treaty cited by Ms. Aguilar, the Convention on the Regulation of Inter-
The Convention begins with a Proclamation, which states in relevant part as
WHEREAS the said Convention was signed during that period by the
respective plenipotentiaries of the United States of America, Austria,
Belgium, Czechoslovakia, Denmark, the Dominican Republic, Egypt,
France, India, Israel, Italy, Lebanon, Luxembourg, the Netherlands,
Norway, the Philippines, Sweden, Switzerland, the Union of South
Africa, the United Kingdom of Great Britain and Northern Ireland,
and Yugoslavia, and the said related protocol was signed during that
same period by the respective plenipotentiaries of the United States of
America, Belgium, Denmark, the Dominican Republic, Egypt, France,
India, Italy, Lebanon, Luxembourg, the Netherlands, Norway, the
Philippines, Sweden, Switzerland, the Union of South Africa, and the
United Kingdom of Great Britain and Northern Ireland[.]
Convention on Road Traffic, T.I.A.S. No. 2487, 3 U.S.T. 3008, 1952 WL
American Automotive Traffic, also does not clearly extend the expansive privileges
she suggests. They maintain that a treaty does not have “effect as domestic law”
unless and until “Congress has either enacted implementing statutes or the treaty
itself conveys an intention that it be self-executing and is ratified on these terms,”
citing Medellin v. Texas, 552 U.S. 491, 505 (2008) (internal quotation omitted).
(Dkt. 45 at p. 12). They further point out that Ms. Aguilar has not directed the
court to any authority that would make the Convention on Inter-American Traffic
Ms. Aguilar did not respond substantively to these arguments in her surreply
brief. Rather, she says that the defendants have waived these arguments by relying
“exclusively” on the advice-of-counsel position to support their qualified immunity
defense. (Dkt. 46 at p. 4). The court has rejected this waiver argument, for the
reasons explained above. Ten days after filing her surreply, Ms. Aguilar did file a
Submission of Supplemental Relevant Authority, attaching two items: the text of
the 1943 Convention on the Regulation of Inter-American Automotive Traffic and
an Opinion of the Michigan Attorney General discussing the legality of a resident of
Mexico who possesses a valid Mexican driver’s license operating a vehicle within the
state of Michigan. (Dkt. 47-2). The significance of these items for purposes of
qualified immunity is not readily apparent.
What is demonstrated by this discussion is that Ms. Aguilar’s right to drive
on her Honduran license under these circumstances was far from being clearly
established. No Indiana law, no United States Supreme Court decision, no Seventh
Circuit Court of Appeals decision, no federal statute established this right. This
court cannot say—even with the benefit of all the parties’ arguments and
citations—that Ms. Aguilar had that right. Officer Carver is therefore entitled to
qualified immunity on the traffic stop claim.
Constitutionality of Vehicle Search
The court next addresses the constitutionality of the search of Ms. Aguilar’s
car. The defendants argue that Ms. Aguilar consented to the search and,
furthermore, that the search was justified by the “impound inventory exception to
the warrant requirement.” (Dkt. 30 at p. 13). With regard to the consent issue, the
Seventh Circuit has said that the key consideration in evaluating whether a
warrantless search premised on consent was valid is whether “the consent was
freely and voluntarily given—a factual question to be determined by the totality of
the circumstances.” Huff v. Reichert, 744 F.3d 999, 1008 (7th Cir. 2014) (quoting
McGann v. Ne. Ill. Reg’l Commuter R.R. Corp., 8 F.3d 1174, 1178 (7th Cir. 1993).
And as to the defendants’ claim that, before having the vehicle impounded, Officer
Carver performed an inventory search—a “recognized exception to the warrant and
probable-cause requirements of the Fourth Amendment[,]” U.S. v. Cherry, 436 F.3d
769, 772 (7th Cir. 2006) (citing United States v. Wilson, 938 F.2d 785, 788 (7th Cir.
1991))—the Seventh Circuit provides the following guidance:
Searches conducted by the police prior to towing a car are “lawful if
conducted pursuant to standard police procedures aimed at protecting
the owner’s property—and protecting the police from the owner’s
charging them with having stolen, lost, or damaged his property.”
Cherry, 436 F.3d at 772 (citing United States v. Pittman, 411 F.3d 813, 817 (7th Cir.
As the factual basis underlying these arguments, the defendants assert in
their summary judgment brief:
Aguilar was detained in handcuffs while Carver attempted to determine
the proper course of action. (Deposition of Mathew Carver, p. 22). . . .
Upon determining that the vehicle would be towed, Carver performed
an inventory of the vehicle. (Deposition of Mathew Carver, p. 39). . . .
When Carver questioned Plaintiff as to whether she was in possession
of anything illegal, she offered him the opportunity to check for himself.
(Deposition of Edna Aguilar, p. 32; Videotape of incident, 04:53.)[.]
The excerpt from Officer Carver’s deposition cited in support of this
statement reads as follows:
[Ms. Aguilar’s attorney]: Did you search her?
[Officer Carver]: I did not.
Q: And did you search her car?
A: I did. Sorry. Can I recant that?
A: I performed a vehicle inventory of her car.
Q: When was that?
A: That would have been – it would have been prior to the tow truck
Q: Did you also open the trunk and look in the trunk?
A: You know, I’m not sure on that. I have to review my video for that.
I’m not sure if I opened the trunk or not, sir.
(Dkt. 31-3 at p. 11).
In her deposition, Ms. Aguilar recounted the event as follows:
Q: . . . Do you remember either Officer Carver or one of the other
officers asking you whether you had anything in your car?
[Ms. Aguilar]: Yes.
Q: And what was your answer?
A: No, I don’t have anything.
Q: Do you know who asked you that?
[footnote continued on next page]
(Dkt. 30 at p. 4).
In her reply, Ms. Aguilar contends that her consent was not freely and
voluntarily given, as she was illegally detained and in handcuffs when Officer
Carver asked, “You don’t have anything illegal on you, do you?” (See Dkt. 41 at p.
23, citing Florida v. Royer, 460 U.S. 491, 497 (1983) (“First, it is unquestioned that
without a warrant to search Royer’s luggage and in the absence of probable cause
and exigent circumstances, the validity of the search depended on Royer’s purported
consent. Neither is it disputed that where the validity of a search rests on consent,
the State has the burden of proving that the necessary consent was obtained and
that it was freely and voluntarily given, a burden that is not satisfied by showing a
mere submission to a claim of lawful authority.”)). And the evidence that Officer
Carver’s question to Ms. Aguilar was whether she had anything illegal “on [her]”
raises an ambiguity about the scope of her consent: did she consent to a search of
her person or of her car?
Ms. Aguilar argues further that Officer Carver did not follow standardized
inventory procedures when he searched the car and thus is not entitled to rely on
the inventory search exception to warrant and probable cause requirements. “[He]
A: He ask me, the Officer Carver.
Q: And did you tell them they could search the car if they wanted?
A: What I said is I don’t have anything. You can look.
Q: And did they look in your car? Do you know?
(Dkt. 31-1 at p. 8).
did not write anything down. He was not methodical in his search. He rummaged
through Mrs. Aguilar[’s] car after asking her if she had anything ‘illegal’ on her.
Facts 88, 89.” (Dkt. 41 at p. 25.) The alleged inventory search was, according to
Ms. Aguilar, “a pretext for investigating criminal activity in violation of Mrs.
Aguilar’s Fourth Amendment rights.” (Dkt. 41 at p. 25.) The defendants offer no
substantive response to these arguments. They have not presented evidence of a
standard police procedure for such searches nor evidence that Officer Carver
followed that procedure.
The court finds that the defendants have not established their entitlement to
judgment as a matter of law on either the consent or the inventory search issues.
There is a genuine factual dispute as to whether Ms. Aguilar freely and voluntarily
consented to a search of her car. And there are insufficient facts on which the court
could determine as a matter of law that Officer Carver’s search was permissible as
an inventory search. The court therefore denies summary judgment on Ms.
Aguilar’s Fourth Amendment claim based on the search of her car.
Finally, the court addresses the question of the City of Seymour’s liability. A
local government may not be sued under §1983 for an injury inflicted solely by its
employees or agents. Monell v. New York City Dep’t of Social Services, 436 U.S. 658,
694 (1978). “Instead, it is when execution of a government’s policy or custom,
whether made by its lawmakers or by those whose edicts or acts may fairly be said
to represent official policy, inflicts the injury that the government as an entity is
responsible under §1983.” Id. In other words, respondeat superior or vicarious
liability will not attach under §1983. See City of Canton, Ohio v. Harris, 498 U.S.
378, 385 (1989). A local governmental unit’s unconstitutional policy or custom can
be shown by: (1) an express policy causing the loss when enforced; (2) a widespread
practice constituting a “custom or usage” causing the loss; or (3) a person with final
policymaking authority causing the loss. Walker v. Sheahan, 526 F.3d 973, 977 (7th
Cir. 2008). In City of Canton, the Supreme Court held that “the inadequacy of
police training may serve as the basis for §1983 liability only where the failure to
train amounts to deliberate indifference to the rights of persons with whom the
police come into contact.” 498 U.S. at 388. “Only where a failure to train reflects a
‘deliberate’ or ‘conscious’ choice by the municipality—a ‘policy’ as defined by our
prior cases—can a city be liable for such a failure under §1983.” Id. at 389.
“Moreover, for liability to attach in this circumstance the identified deficiency in a
city’s training program must be closely related to the ultimate injury.” Id. at 391.
In their summary judgment motion, the defendants argue that Ms. Aguilar
cannot prove the existence of an unconstitutional policy, practice, custom, or
procedure, or that Officer Carver was “unconstitutionally undertrained.” (See Dkt.
30 at p. 15). Ms. Aguilar argues in response that the evidence “demonstrates a
manifest need for training on the exact issue for which Mrs. Aguilar was
unconstitutionally arrested” because Seymour police officers regularly come into
contact with drivers who have licenses issued by their home countries. (Dkt. 41 at
pp. 26-27). In support of her contention that “[t]he situation of foreign nationals
driving on their home country driver’s licenses regularly arises during Officer
Carver’s enforcement of traffic laws,” Ms. Aguilar cites the deposition testimony of
Officer Carver and Officer Schrapson. 8 Officer Carver testified:
[Ms. Aguilar’s attorney]: [T]he issue of the validity of a foreign
national’s driver’s license that’s issued in another country comes up
quite a bit, doesn’t it, in police work?
[Officer Carver]: This is the first time I’ve had something like this come
Q: First time you’ve had a Honduran license come up, but you told me
you’ve had a number of people on Mexican licenses; correct?
A: Yes. I have seen a number of them, yes.
Q: And you don’t know whether those are valid or not because they’re
in Spanish for the most part?
Elsewhere in the “Statement of Material Facts and Facts in Dispute,” Ms.
Aguilar cites an excerpt from Chief Abbott’s deposition in support of the following
“fact”: “Seymour police officers regularly stop Mexican nationals for alleged driving
offenses, who are driving in Indiana on foreign licenses. Abbott Depo. 12; Schapson
Depo. 20.” This excerpt reads as follows:
[Ms. Aguilar’s attorney]: Does the issue of foreign nationals driving on
foreign licenses come up in Jackson County, Indiana?
[Chief Abbot]: Sometimes.
Q: There are a number of Mexican nationals that live here?
A: There’s several different nationalities.
Q: And your officers on a somewhat regular basis perhaps stop foreign
nationals who are driving on foreign licenses?
A: Just in the course of a traffic stop, yes.
Q: And they would need to know, would they not, whether those are
valid license[s] or not?
(Dkt. 41-5 at p. 7).
A: Well, there’s no way to validate to see if that’s valid. You can’t run
that through IDACS.
Q: So but with respect to whether the person has been here 60 days or
eight months and they have a foreign license, you don’t know whether
that makes it legal for them to drive under international laws the United
States has signed treaties to, do you?
A: I don’t know anything about the treaties or what you just said, the
international. I haven’t been informed of that. I’m sorry.
Q: But the issue of you stopping people with foreign licenses, that
circumstance arises regularly in police work, doesn’t it?
A: It could.
Q: It does in Seymour, doesn’t it?
A: It has.
(Dkt. 41-3 at p. 18-19).
Officer Schapson testified:
[Ms. Aguilar’s attorney]: . . . I assume that the issue of foreign nationals
driving on foreign licenses comes up in police work in Seymour?
[Officer Schapson]: Correct.
Q: With some regularity?
(Dkt. 41-4 at p. 7).
IDACS stands for Indiana Data and Communications System, a
“computerized law enforcement/criminal justice communications and information
storage and retrieval system. [. . .] designed to serve as a tool in providing more
effective and efficient law enforcement for both the citizens of this State and,
through interfacing with the National Crime Information Center (NCIC) computer,
and the International Justice and Public Safety Network (NIets) computer, the
Nation as a whole.” https://secure.in.gov/idacs/ (last accessed 08/03/2016).
The testimony noted above identifies a threshold challenge officers encounter
in these circumstances: that there is no way of confirming the validity of a foreign
license because that information is not available in the Indiana Data and
Communications System. But more important for summary judgment purposes,
Ms. Aguilar has not provided the proof necessary to meet the high “deliberate
indifference” standard set forth in City of Canton. Testimony by two Seymour police
officers that they have previously encountered “foreign nationals driving on foreign
licenses” (Dkt. 41-5 at p. 7) is a far cry from evidence that their training is
constitutionally deficient or indicative of deliberate indifference to the constitutional
rights of these drivers. Ms. Aguilar has provided no specific evidence about prior
stops, and the court has no way to know whether those other stops presented
similar issues or whether those drivers even suffered constitutional violations
causally connected to the City of Seymour’s alleged failure to train its police officers.
In his City of Canton concurrence, Justice Brennan wrote: “Where, as here, a
claim of municipal liability is predicated upon a failure to act, the requisite degree
of fault must be shown by proof of a background of events and circumstances which
establish that the ‘policy of inaction’ is the functional equivalent of a decision by the
city itself to violate the Constitution.” 489 U.S. at 394-95 (Brennan, J., concurring);
see also Palmquist v. Selvik, 111 F.3d 1332, 1346 (7th Cir. 1997) (“The [plaintiff] did
not show a pattern of constitutional violations constituting notice that a training
deficiency existed. Without a showing of such deficiencies along with an awareness
of them by the Village government, there is insufficient evidence on which to ground
municipal liability.”). Ms. Aguilar has not presented sufficient evidence to support
the finding of a pattern of constitutional violations constituting notice of a training
deficiency or that the City was otherwise deliberately indifferent. Accordingly, the
court grants summary judgment in favor of the City of Seymour.
For the foregoing reasons, the court GRANTS summary judgment in favor of
defendant Mathew Carver on Ms. Aguilar’s claim arising from the traffic stop and
DENIES summary judgment on her claims against Mathew Carver arising from the
search of her car. The court GRANTS summary judgment in favor of the City of
Seymour on all claims against it.
Dated: September 30, 2016
Debra McVicker Lynch
United States Magistrate Judge
Southern District of Indiana
All ECF-registered counsel of record by email through the court’s ECF system
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