Love v. Rumgay et al

Filing 95

MEMORANDUM OPINION. Signed by Judge Richard D Bennett on 3/15/2016. (ca2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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TORREY LAMONT LOVE,
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Plaintiff,
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v.
Civil Action No. RDB-13-1402
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WILLIAM ANTHONY RUMGAY, et al.,
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Defendants.
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MEMORANDUM OPINION
Plaintiff Torrey Lamont Love (“Plaintiff” or “Love”) brings this 42 U.S.C. § 1983
action against Defendants William Anthony Rumgay (“Rumgay”), Wade Sibley (“Sibley”),
Craig Miller (“Miller”), Charles Rankin (“Rankin”) (collectively, “Defendants”), and
unknown John Does, alleging violations of his rights under the Fourth and Fourteenth
Amendments of the United States Constitution, U.S. Const. amends. IV, XIV. Specifically,
Plaintiff claims that, during an allegedly unlawful traffic stop on June 1, 2010 in Allegany
County, Maryland, and his ensuing detention, Defendants conspired to, and did, subject him
to unreasonable search and seizure in violation of the Fourth and Fourteenth Amendments.
Furthermore, he alleges that Defendants used excessive force during the course of the
alleged traffic stop.
Currently pending are Defendant Rumgay’s Motion to Dismiss for Failure to State a
Claim, or in the Alternative, Motion for Summary Judgment (ECF No. 74); Defendants
Miller and Rankin’s Motion to Dismiss for Failure to State a Claim (ECF No. 75); Defendant
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Sibley’s Motion to Dismiss (ECF No. 77); Plaintiff’s Motion for Leave to File Surreply in
Opposition to Defendants Miller and Rankin’s Motion to Dismiss (ECF No. 89); and
Plaintiff’s Motion for Leave to File Surreply in Opposition to Defendant Rumgay’s Motion
to Dismiss (ECF No. 90). The parties’ submissions have been reviewed and no hearing is
necessary. See Local Rule 105.6 (D. Md. 2014).
For the reasons that follow, Defendant Rumgay’s Motion to Dismiss for Failure to
State a Claim, or in the Alternative, Motion for Summary Judgment (ECF No. 74), construed
as a Motion to Dismiss, is DENIED; Defendants Miller and Rankin’s Motion to Dismiss for
Failure to State a Claim (ECF No. 75) is DENIED; Defendant Sibley’s Motion to Dismiss
(ECF No. 77) is DENIED; Plaintiff’s Motion for Leave to File Surreply in Opposition to
Defendants Miller and Rankin’s Motion to Dismiss (ECF No. 89) is GRANTED; and
Plaintiff’s Motion for Leave to File Surreply in Opposition to Defendant Rumgay’s Motion
to Dismiss (ECF No. 90) is GRANTED. In sum, Plaintiff has sufficiently alleged that
Defendants violated his Fourth Amendment and Fourteenth Amendment rights to be free
from unreasonable searches and seizures, as well as excessive force. At this early stage in the
proceedings, Defendants have not yet demonstrated any entitlement to qualified immunity
for their alleged actions. All counts thus remain pending against the Defendants. Discovery
and pretrial dispositive motions will proceed per the parties’ Joint Motion to Modify
Scheduling Order (ECF No. 92).
BACKGROUND
This Court accepts as true the facts alleged in the plaintiff’s complaint. See Aziz v.
Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011). This action arises from an alleged unlawful
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and unconstitutional search and seizure of the Plaintiff, Torrey Lamont Love. On June 1,
2010, Plaintiff and an acquaintance, Cristi Elliott (“Elliott”), were traveling in a white
Cadillac on Interstate 68. Second Amend. Compl. ¶ 26, ECF No. 73. Although the car was
registered to Love and his wife, Elliott was driving and Love rode in the passenger seat. Id. ¶
26. Shortly after the car came into view, 1 Defendants Craig Miller and Charles Rankin,
Maryland State Troopers,2 allegedly turned on their lights and siren to signal the car to stop.
Id. ¶ 27. Once Elliott pulled over the vehicle, Miller exited his patrol car and approached the
passenger side of the Cadillac. Id. ¶ 28. Miller informed Elliott that she had violated the
speed limit by traveling seventy-three miles per hour in a sixty-five mile per hour zone. Id. ¶
28. Plaintiff disputes the legitimacy of this justification, asserting that Miller and Rankin had
neither “reasonable articulable suspicion [n]or probable cause to believe that the car was
speeding.” Id. ¶ 27.
Miller began to question Love and Elliott. Id. ¶ 29. A video recording of the
interrogation allegedly shows that the questions included:
where [Elliott] and Mr. Love were coming from; . . . where they
were going; . . . where Ms. Elliott lived; . . . details regarding a
prior traffic stop; . . . who owned the car; . . . where the two had
spent the day; . . . whether Ms. Elliott and Mr. Love were
related; and . . . for Mr. Love’s identification.”
Id. Plaintiff answered each question posed. Id. He alleges that the bulk of the questions

Plaintiff alleges that the video recording of the incident shows that only twenty seconds passed between the
moment the car came into view and the point at which Defendants Miller and Rankin turned on their siren.
Id. ¶ 27.
2 In the Second Amended Complaint, Plaintiff identified Defendants Miller and Rankin as officers of the
Cumberland City Police Department. Id.¶¶ 20. 21. Miller and Rankin, however, assert that they are Maryland
State Troopers. Mem. in Support of Defs. Miller and Rankin’s Mot. to Dismiss, 1 n.1, ECF No. 75-1. Plaintiff
does not dispute Miller and Rankin’s correction, thus this Court will refer to Miller and Rankin as state
troopers.
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concerned matters outside of the scope of the traffic violation, effectively prolonging the
traffic stop beyond the time needed to complete an investigation. Id. ¶ 31.
Miller and Rankin subsequently returned to their vehicle, where Miller was recorded
to have said to Rankin that he had “probable cause for a [K-9] scan.” Id. ¶ 32. After
discussing whether Defendant Wade Sibley was nearby, Miller stated, “[Sibley] can go ahead
and do the [K-9] scan. I’ve got both IDs here. This name has been on cars I’ve stopped
before and found narcotics.” Id. Miller then requested assistance for a scan on his radio. Id. ¶
34. Sibley, an officer with the Allegany County Sheriff’s Office or Cumberland City Police
Department, id. ¶ 19, arrived soon thereafter. Id. ¶ 34.
Defendants ordered Elliott to exit the Cadillac and stand by Miller’s trooper vehicle,
which was parked “some distance away” from the Cadillac. Id. ¶ 35. Also on Defendants’
orders, Love remained in the vehicle. Id. Defendant William Rumgay, an officer with the
Allegany County Sheriff’s Office or Cumberland City Police Department, 3 id. ¶ 18, then
arrived at the scene. Id. ¶ 36. Sibley proceeded to walk with his service dog towards the
Cadillac, passing Elliott on the way. Id. ¶ 37. Love alleges that the dog did not alert when
close to Elliott. Id. Sibley circled the Cadillac with the dog, at which point the dog allegedly
alerted to the presence of narcotics on the passenger side of the car. Id. ¶ 38. Sibley and the
dog again approached Elliott, but the dog did not alert to the presence of narcotics on
Elliott. Id. ¶ 39.
After Sibley’s service dog alerted near the Plaintiff, Miller ordered Plaintiff to exit the
Cadillac. Id. ¶ 40. Six Defendants, including Miller, Rankin, and Rumgay, allegedly

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Neither Defendant Sibley’s nor Defendant Rumgay’s exact employer has been defined.
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surrounded Love. Id. The video recording reveals that Miller asked Plaintiff, “[a]nything in
your anus?” Id. ¶ 41. Love responded, “No. Listen, I don’t stick nothing in my ass.” Id. Love
was ordered to remove his shoes and subjected to a search of his person.” Id. ¶ 42. The
search allegedly revealed that Plaintiff possessed no “contraband or other evidence of
criminal conduct on his person or otherwise within reach.” Id. ¶ 43. Nevertheless, Miller
allegedly ordered Plaintiff to walk down the road, without his shoes, to Miller’s vehicle. Id.
Plaintiff cooperated, following Rankin to the vehicle. Id. ¶¶ 43, 45. Rankin handcuffed
Love’s hands behind his back. Id. ¶ 43. An unknown Defendant then “grabbed Mr. Love by
the back of his head and slammed his face into the police car, causing pain and discomfort
to Mr. Love.” Id. ¶ 44.
Over the next twenty-five minutes, Defendants Miller and Rumgay searched the
entire Cadillac. Id. ¶ 46. During the search, Rumgay was recorded as saying to Miller, “It’s in
here, Craig, I got a feeling.” Id. Miller responded, “I would hope so.” Id. Defendants never
found narcotics, contraband, or any evidence of a crime in the Cadillac. Id. ¶ 52.
While the search continued, Rumgay paused to question Elliott briefly, but soon
resumed his search of the Cadillac. Id. ¶ 47. None of the Defendants searched or frisked
Elliott at the scene of the incident, although a female officer was present. Id. ¶¶ 48-49. An
unnamed officer brought a service dog within feet of Elliott, but again, the dog did not alert
to the presence of narcotics. Id. ¶ 50. While Plaintiff was present at the scene of the incident,
Elliott was never handcuffed. Id. ¶ 51. At some later time, unspecified Defendants took her
to the Allegany County Detention Center, where a search revealed eighty-four capsules of
suspected heroin, fifty vials of suspected crack cocaine, and two clusters of suspected crack
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cocaine. Id. ¶ 54. Elliott allegedly admitted that the narcotics belonged to her alone, as Love
had no knowledge of the narcotics. Id.
Later that day, Rumgay allegedly swore to a “Statement of Probable Cause” and a
“Statement of Charges” in State of Maryland v. Torrey Lamont Love, District Court Case No.
4W00054527 (2010). Id. ¶ 55. In the “Statement of Probable Cause,” Rumgay stated that he
was “able to determine . . . [that Mr.] Love and [Ms.] Elliott conspired with each other to
distribute crack cocaine and . . . heroin.” Id. ¶ 56. Rumgay went on to explain that he was
“able to determine . . . [that Mr. Love and Ms. Elliott] possessed the crack cocaine and
heroin . . .” and that he observed “a large bulge on the left front thigh area of [Ms. Elliott’s]
leg.” Id. ¶¶ 57-58. Love alleges that neither the video recording nor the contemporaneous
radio transmissions indicated such an observation, as Defendants did not “pat down” Elliott
or question her about the “bulge.” Id. ¶ 58. Love asserts that the statements were false and
made with a reckless disregard for the truth. Id. ¶¶ 56-58. Through the “Statement of
Charges,” Love was charged with possession of controlled dangerous substances and
conspiracy to possess controlled dangerous substances. Id. ¶ 55.
Plaintiff remained in detention after his initial arrest on June 1, 2010. On the basis of
Rumgay’s testimony in the “Statement of Probable Cause,” Plaintiff was detained without
bond on July 2, 2010. Id. ¶¶ 59-60. A preliminary hearing in the District Court of Maryland
for Allegany County ensued. Id. ¶ 61. Love claims that Rumgay testified to the same
falsehoods of the “Statement of Probable Cause.” Id. ¶ 61. Rumgay also allegedly stated that
Elliott was in the vehicle when Sibley’s service dog alerted. Id. The presiding judge found
probable cause to continue to hold Plaintiff and set bail at $200,000. Id. ¶ 62.
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Later that month, Michael Twigg, the State’s Attorney for Allegany County, filed a
Criminal Information charging Plaintiff with all nine counts recommended by Defendant
Rumgay in the “Statement of Charges.” Id. ¶ 64. On November 3, 2010, the State’s Attorney
entered a nolle prosecui on all charges. 4 Id. ¶ 65. Unable to make bail, Plaintiff remained
incarcerated from his initial arrest on June 1, 2010, until his release on November 3, 2010. Id.
In sum, he spent 156 days at the Allegany County Detention Center. Id.
Although Love originally filed the subject action pro se, this Court appointed pro bono
counsel on January 1, 2014. Order, ECF No. 25. Under the direction of his present counsel,
Plaintiff filed the Second Amended Complaint (ECF No. 73) on July 10, 2015. Defendants
Rumgay, Miller, Rankin, and Sibley subsequently moved for dismissal of the Second
Amended Complaint in its entirety. See Def. Rumgay’s Mot. to Dismiss, ECF No. 74; Defs.
Miller and Rankin’s Mot. to Dismiss, ECF No. 75; Def. Sibley’s Mot. to Dismiss, ECF No.
77. Finally, Love filed the pending Motions for Leave to File Surreply in Opposition (ECF
Nos. 89 & 90), arguing that Defendants Miller, Rankin, and Rumgay raised certain
arguments in their respective Replies (ECF Nos. 87 & 88) that were absent from the original
Motions to Dismiss.
STANDARD OF REVIEW
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain
a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P 8(a)(2). Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the
dismissal of a complaint if it fails to state a claim upon which relief can be granted. The
Pursuant to Maryland Rule 4-247, an entry of nolle prosecui is a voluntary dismissal by the prosecutor of all
charges against the defendant. Md. Code Ann., Md. Rule 4-247.
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purpose of Rule 12(b)(6) is “to test the sufficiency of a complaint and not to resolve contests
surrounding the facts, the merits of a claim, or the applicability of defenses.” Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).
The Supreme Court’s recent opinions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), “require that complaints in civil actions be
alleged with greater specificity than previously was required.” Walters v. McMahen, 684 F.3d
435, 439 (4th Cir. 2012) (citation omitted). In Twombly, the Supreme Court articulated “[t]wo
working principles” that courts must employ when ruling on Rule 12(b)(6) motions to
dismiss. Iqbal, 556 U.S. at 678. First, while a court must accept as true all the factual
allegations contained in the complaint, legal conclusions drawn from those facts are not
afforded such deference. Id. (stating that “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice” to plead a claim); see also
Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012) (“Although we are
constrained to take the facts in the light most favorable to the plaintiff, we need not accept
legal conclusions couched as facts or unwarranted inferences, unreasonable conclusions, or
arguments.” (internal quotation marks omitted)).
Second, a complaint must be dismissed if it does not allege “a plausible claim for
relief.” Iqbal, 556 U.S. at 679. Under the plausibility standard, a complaint must contain
“more than labels and conclusions” or a “formulaic recitation of the elements of a cause of
action.” Twombly, 550 U.S. at 555. Although the plausibility requirement does not impose a
“probability requirement,” id. at 556, “[a] claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
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defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678; see also Robertson v. Sea
Pines Real Estate Cos., 679 F.3d 278, 291 (4th Cir. 2012) (“A complaint need not make a case
against a defendant or forecast evidence sufficient to prove an element of the claim. It need only
allege facts sufficient to state elements of the claim.” (emphasis in original) (internal quotation
marks and citation omitted)). In making this assessment, a court must “draw on its judicial
experience and common sense” to determine whether the pleader has stated a plausible
claim for relief. Iqbal, 556 U.S. at 679. “At bottom, a plaintiff must nudge [its] claims across
the line from conceivable to plausible to resist dismissal.” Wag More Dogs, LLC, 680 F.3d at
365 (internal quotation marks omitted).
ANALYSIS
Plaintiff Love’s Second Amended Complaint asserts four federal causes of action
against the Defendants, all pursuant to 28 U.S.C. § 1983—unreasonable and unlawful seizure
(Count One); excessive force (Count Two); unreasonable and unlawful search (Count
Three); and conspiracy to violate constitutional rights (Count Four). In their respective
Motions to Dismiss, Defendants Rumgay, Miller, Rankin, and Sibley argue that, even with
the additional detail provided by the Second Amended Complaint, Love fails to state a
plausible claim for relief. Alternatively, the Defendants assert that they are entitled to
qualified immunity for any and all acts stemming from the incident. This Court will address
the issues raised by the parties in the following manner. First, although not chronological,
this Court will consider Plaintiff’s Motions for Leave to File Surreply (ECF Nos. 89 & 90).
Second, this Court will examine the allegations of Count One as applied to Defendants
Miller, Rankin, and Sibley. Third, this Court will consider Count One as applied to
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Defendant Rumgay. Fourth, this Court will examine each remaining count as applied to all
Defendants. Finally, this Court will address the merits of Defendants’ affirmative defense of
qualified immunity.
I.

Plaintiff’s Motions for Leave to File Surreply
Plaintiff requests leave to file two surreplies—the first in response to Defendants

Miller and Rankin’s Reply (ECF No. 87), and the second in response to Defendant
Rumgay’s Reply (ECF No. 88).5 As a general rule, this Court will not allow parties to file
surreplies. Local Rule 105.2(a) (D. Md. 2011); see also MTB Servs., Inc. v. Tuckman-Barbee Const.
Co., No. 1:12-cv-02109-RDB, 2013 WL 1224484, *6 (D. Md. Mar. 26, 2013). In MTB Services,
this Court explained that a “party moving for leave to file a surreply must show a need for a
surreply.” Id. (internal citation omitted). A court may permit a plaintiff to file a surreply if “a
defendant raises new legal issues or new theories in its reply brief.” Id. (citing TECH USA,
Inc. v. Evans, 592 F. Sup.. 2d 852, 862 (D. Md. 2009)); see also Khoury v. Meserve, 268 F. Supp.
2d 600, 605 (D. Md. 2003).
Love contends that Defendants’ respective replies raised arguments absent from their
earlier Motions to Dismiss. Specifically, Defendants Miller and Rankin argued that Love’s
arrest was supported by probable cause, while Defendant Rumgay claimed that Love had
failed to allege that Rumgay’s “false statements” were material to the judicial determination
of probable cause and detention. Plaintiff does not merely reiterate arguments asserted in
opposition to Defendants’ respective Motions to Dismiss. After a review of Defendants’
replies, this Court holds that the Defendants did, indeed, raise the novel arguments identified
Defendant Sibley, who joined in Miller and Rankin’s Motion to Dismiss (ECF No. 77) did not file a Reply,
nor did he join Miller and Rankin’s Reply.

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by the Plaintiff. Absent the subject surreplies, Love has no means through which he may
dispute the newly-asserted arguments. Given this prejudice, he has demonstrated the
requisite need for a Surreply. Accordingly, Plaintiff’s Motions for Leave to File Surreply
(ECF Nos. 89 & 90) are GRANTED.
II.

Count One—Unreasonable and Unlawful Seizure
A. Defendants Miller, Rankin, and Sibley
Plaintiff alleges that he suffered two specific unreasonable and unlawful seizures, in

violation of the Fourth and Fourteenth Amendments. First, he claims that the initial
investigatory stop was unsupported by reasonable suspicion or probable cause of any
criminal activity. Even if the initiation of the stop satisfied the Fourth Amendment,
Defendants prolonged the investigatory stop beyond its constitutional bounds. Second, Love
alleges that his later arrest and detention were unsupported by probable cause, and thus
unreasonable and unlawful under the Fourth Amendment. Each alleged seizure will be
addressed in turn.
Section 1983 creates a private right of action for any United States citizen seeking to
remedy alleged constitutional violations. 42 U.S.C. § 1983. Under Section 1983:
Every person who, under color of any statute, ordinance, regulation, custom,
or usage, of any State . . . subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or other
proper proceeding for redress, except that in any action brought against a
judicial officer for an act or omission taken in such officer’s judicial capacity,
injunctive relief shall not be granted unless a declaratory decree was violated
or declaratory relief was unavailable.

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42 U.S.C. § 1983. Section 1983 does not create “substantive rights;” rather, it provides “a
method for vindicating federal rights elsewhere conferred.” Thompson v. Dorsey, Civ. A. No.
ELH-10-1364, 2011 WL 2610704, at *3 (D. Md. June 30, 2011) (quoting Albright v. Oliver,
510 U.S. 266, 271 (1994)).
In Count One, Love specifically alleges that, due to Defendants’ actions, he was
unreasonably and unlawfully seized under the Fourth Amendment. The Fourth Amendment
guarantees “[t]he right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. As the United
States Court of Appeals for the Fourth Circuit has emphasized, the “underlying command of
the Fourth Amendment is always that searches and seizures be reasonable.” United States v.
Digiovanni, 650 F.3d 498, 506 (4th Cir. 2011) (quoting Wilson v. Arkansas, 514 U.S. 927, 931
(1995)).
Although a seizure may arise in many forms, it is clearly established that persons
traveling in an automobile who are stopped and detained, however briefly, by a police officer
are seized within the meaning of the Fourth Amendment. Whren v. United States, 517 U.S.
806, 809-10. As such, “the decision to stop an automobile is reasonable where the police
have probable cause to believe that a traffic violation has occurred.” Id. at 810. So long as
probable cause of a traffic violation is present, “[a]ny ulterior motive a police officer may
have for making the traffic stop is irrelevant.” Digiovanni, 650 F.3d at 506 (citing Whren, 517
U.S. at 813; Ohio v. Robinette, 519 U.S. 33, 39 (1996)). The seizure begins when the vehicle “is
pulled over for investigation of a traffic violation.” Arizona v. Johnson, 555 U.S. 323, 333
(2009). For the “duration of the stop . . . a police officer effectively seizes ‘everyone in the
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vehicle,’ the driver and all passengers.” Id. at 327 (quoting Brendlin v. California, 551 U.S. 249,
255 (2007)).
As “most traffic stops resemble, in duration and atmosphere, the kind of brief
detention authorized in Terry [v. Ohio],” and not custodial arrests, the Supreme Court has
instructed that such stops be considered under the framework articulated in Terry v. Ohio, 392
U.S. 1 (1968). Berkemer v. McCarty, 468 U.S. 420, 439 n. 29 (1984); accord Pennsylvania v. Mimms,
434 U.S. 106, 109 (1977) (per curiam); United States v. Rusher, 966 F.2d 868, 875 (4th Cir. 1992);
Digiovanni, 650 F.3d at 506. To be reasonable, the traffic stop must satisfy two prongs. First,
the police officer’s decision to stop the automobile must be “justified at its inception.”
Digiovanni, 650 F.3d at 506. Second, the officer’s “subsequent actions [must be] reasonably
related in scope to the circumstances that justified the stop.” Id.
With respect to Defendants Miller, Rankin, and Sibley, Plaintiff has sufficiently
alleged that the traffic stop was not justified at its inception. Defendants argue that Plaintiff
plainly admits a traffic violation occurred, thereby justifying the seizure of the vehicle.6 Yet,
Plaintiff does no such thing in the Second Amended Complaint. Far from admitting a traffic
violation, Love acknowledges only that Miller and Rankin’s professed reason for the stop
was a traffic violation. He alleges that no such violation occurred. In support of this
allegation, he claims that Miller and Rankin the twenty-second interval between when the
vehicle came into view and Defendants’ signal was insufficient to determine whether Elliott
was indeed speeding.
This Court notes that only Miller and Rankin were present at the initial stop of the vehicle, whereas Sibley
was in a separate vehicle at a close, but unknown, distance. Since Sibley joined in Miller and Rankin’s Motion
to Dismiss, and has not asserted any grounds for dismissal specific to his actions, this Court will consider
Miller and Rankin’s arguments as encompassing Sibley.

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The parties have presented conflicting versions of the initial stop. The issue of
probable cause of a traffic violation could be ripe for consideration after the parties engage
in discovery, or may continue to present genuine issues of fact to be resolved at trial. At the
motion to dismiss stage, however, this Court must accept as true the facts alleged by Love in
the subject Second Amended Complaint. See Aziz, 658 F.3d at 390. This Court thus must
accept Love’s allegation that no traffic violation occurred, despite the Defendants’
statements to the contrary. As the alleged seizure fails the first prong of the Terry framework,
this Court need not consider whether Defendants’ “subsequent actions were reasonably
related in scope to the circumstances that justified the stop. Digiovanni, 650 F.3d at 506.
Turning next to Plaintiff’s arrest and ensuing five-month detention, Defendants
Miller, Rankin, and Sibley argue that they were not involved in the arrest and detention, and
thus may not be held liable. Even if Plaintiff’s allegations demonstrate their participation,
they contend that his arrest and detention were supported by probable cause. Under the
Fourth Amendment, a police officer need not obtain a warrant before arresting an individual
if he has probable cause to believe the individual committed a crime. See, e.g., United States v.
Watson, 423 U.S. 411, 421-23 (1976); Hayes v. Florida, 470 U.S. 811, 816 (1985). Probable
cause is admittedly a “practical, nontechnical conception.” Brinegar v. United States, 338 U.S.
160, 176 (1949). Courts thus employ a “totality-of-the-circumstances” test to determine
whether law enforcement had probable cause to arrest the individual in question. Illinois v.
Gates, 462 U.S. 213, 230-31 (1983).
In this case, Defendants do not dispute that Plaintiff was arrested without the
authority of a warrant. Nor do they dispute that he was seized and arrested within the
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understanding of the Fourth Amendment. Rather, they argue that their interactions with the
Plaintiff were limited to the initial traffic stop and K-9 investigation. The Second Amended
Complaint, however, clearly alleges the participation of Defendants in Love’s detention.
Defendant Miller allegedly forced Love to remove his shoes and conducted a search of his
body. Second Amend. Compl. ¶¶ 42-43. Similarly, Defendant Rankin allegedly accompanied
Love to the rear of Miller’s police vehicle, at which point he handcuffed Love. Id. ¶¶ 40, 43.
Throughout the seizure and official arrest, Sibley, Miller, and Rankin are alleged to have
acted in concert with Rumgay and the unnamed Defendants. Plaintiff has sufficiently alleged
that Defendants participated in his arrest.
Alternatively, Defendants argue that Love’s arrest was supported by ample probable
cause, and thus inherently reasonable under the Fourth Amendment. Specifically,
Defendants assert that Plaintiff’s purported ownership of the Cadillac, Miller’s statement
that he had seen “the name” on cars associated with narcotics, and the service dog’s alert on
the passenger side of support a finding of probable cause. It is the allegations of the Second
Amended Complaint, however, that control at the motion to dismiss stage.
Although Plaintiff admits that the Cadillac was registered to he and his wife, he does
not allege that he owns the car. Further, Miller’s statement does not refer specifically to Love,
but may plausibly refer to Elliott, the person on whose person narcotics were actually found.
Finally, while the positive alert of a service dog does provide probable cause to search the
vehicle, that alert does not establish probable cause to arrest a specific individual. United
States v. Humphries, 372 F.3d 653, 659 (4th Cir. 2004). Some “additional factors would
generally have to be present, indicating to the officer that those persons possess the
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contraband.” Id. Plaintiff alleges that no such “additional factors” were present, as no drugs
were found on his person, nor in the vehicle. His allegations are sufficient to plead a
plausible claim that Defendants arrested him without probable cause, in violation of his
Fourth Amendment rights. After discovery, Defendants will have an opportunity to
challenge Plaintiff’s version of the circumstances underlying his arrest and subsequent
detention. Accordingly, Count One will proceed as applied to Defendants Miller, Rankin,
and Sibley.
B. Defendant Rumgay
Plaintiff alleges that Defendant Rumgay was a willing actor in the scheme to subject
the Plaintiff to unreasonable and unlawful seizure, in violation of the Fourth Amendment.
Rumgay allegedly participated in the unreasonable and unlawful searches and seizures at the
scene of the traffic stop, but subsequently gave allegedly false statements that were material
to Plaintiff’s continued detention. To the extent that Rumgay is included in Plaintiff’s claims
against Miller, Rankin, and Sibley, the claims will proceed for the reasons discussed supra.
The allegations specific to Rumgay—his allegedly false statements—require further analysis.
Love alleges that Rumgay made false statements on two occasions—his statements in
the “Statement of Probable Cause” and “Statement of Charges” on June 1, 2010, and his
testimony at the preliminary hearing on July 2, 2010. Section 1983 incorporates common law
torts, such as false imprisonment, so as to create a “’special species of tort liability,’ founded
on rights originating in the Constitution[.]” Lambert v. Williams, 223 F.3d 257, 262 (4th Cir.
2000) (quoting Imbler v. Pachtman, 424 U.S. 409, 417 (1976)). Section 1983 claims for false
imprisonment are thus “properly analyzed as unreasonable seizures under the Fourth
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Amendment.” McPhearson v. Anderson, 873 F. Supp. 2d 753, 756 (E.D. Va. 2012) (quoting Day
v. Milam, Civ. A. No. 1:11-cv-97, 2011 WL 5190809, at *4 (E.D. Va. Oct. 28, 2011)). If a
plaintiff alleges that police officers seized him “pursuant to legal process that was not
supported by probable cause and that the criminal proceedings terminated in his favor,” then
he has sufficiently stated a claim for unreasonable seizure under the Fourth Amendment.
Brooks v. City of Winston-Salem, 85 F.3d 178, 183 (4th Cir. 1996); see also Miller v. Prince George’s
County, 475 F.3d 621, 630 (4th Cir. 2007).
In this case, Love’s allegations are sufficient to plead a plausible violation of his
Fourth Amendment rights. Love claims that the story upon which his arrest and subsequent
imprisonment was based was fabricated by Defendant Rumgay. Plaintiff alleges that Rumgay
had no evidence of a conspiracy between he and Elliott to possess and distribute narcotics,
but falsely stated that such evidence existed. According to the Second Amended Complaint,
no narcotics were ever found on Plaintiff’s person or in the car. Rumgay, however, stated
that he was “able to determine . . . [that the Plaintiff] possessed the crack cocaine and
heroin[.]” Second Amend. Compl. ¶ 57. At the July 2, 2010 preliminary hearing, Rumgay
again presented testimony that contradicted Love’s factual allegations. If true, Love’s
allegations demonstrate a false foundation for his continued detention, thereby negating
Rumgay’s assertion of probable cause. Furthermore, the criminal proceedings against Love
terminated in his favor when the Office of the State’s Attorney entered a nolle prosecui
dismissing all charges.
Raised for the first time in his Reply, Rumgay asserts that he is entitled to qualified
immunity for any such statements because Love failed to allege that the omission of the false
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statements would negate a finding of probable cause.7 Under the framework of Franks v.
Delaware, 438 U.S. 154 (1978), Love must demonstrate “that a false statement knowingly and
intentionally or with reckless disregard for the truth was included by the affiant in the
affidavit,” and that “the information was essential to the probable cause determination.”
Smith v. Reddy, 882 F. Supp. 497, 499 (D. Md. 1995). As discussed supra, Plaintiff has clearly
alleged that Rumgay knowingly and intentionally (or with reckless disregard) made false
statements. Despite Rumgay’s argument to the contrary, Plaintiff also expressly alleged that
the statements were material to the judicial finding of probable cause for detention.
Defendant’s argument essentially ignores the allegations of the Second Amended Complaint.
Accordingly, Plaintiff has sufficiently pled a plausible claim for relief under the Fourth
Amendment. At this early stage, Defendant has failed to demonstrate any entitlement to
qualified immunity for the alleged false statements.
III.

Count Two—Excessive Force
In Count Two, Plaintiff alleges that Defendants used excessive force during their

encounter with the Plaintiff. When the alleged excessive force “arises in the context of an
arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking
the protections of the Fourth Amendment[.]” Graham v. Connor, 490 U.S. 386, 394 (1989);
accord Jones v. Buchanan, 325 F.3d 520, 527 (4th Cir. 2003). To determine the reasonableness of
the force employed, the Fourth Amendment “requires a careful balancing of the ‘nature and
quality of the intrusion on the individual’s Fourth Amendment interests’ against the
Generally, a party waives any argument not asserted in an opening brief. Clawson v. FedEx Ground Package
Sys., Inc., 451 F. Supp. 2d 731, 735 (D. Md. 2006) (internal citation omitted). In Plaintiff’s Motion for Leave to
File Surreply (ECF No. 90), he addresses the newly-raised argument of materiality. As Plaintiff’s surreply is to
be granted, this Court will consider Defendant’s argument for qualified immunity.
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‘countervailing governmental interests at stake.” Graham, 490 U.S. at 396 (quoting Tennessee v.
Garner, 471 U.S. 1, 8 (1985) (quoting United States v. Place, 462 U.S. 696, 703 (1983))). The
application of this test is ill-suited for rigid application, thus “its proper application requires
careful attention to the facts and circumstances of each particular case, including the severity
of the crime at issue, whether the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest or attempting to evade arrest by
flight.” Graham, 490 U.S. at 396.
As set forth in the Second Amended Complaint, Defendants allegedly “stripped Mr.
Love of his shoes, grabbed him behind his head while he was handcuffed, and forcefully
slammed his face against the police car.” Second Amend. Compl. ¶ 82. Plaintiff alleges that,
as he was barefoot on the side of a highway surrounded by officers, he hardly posed a threat
to the safety of the officers. No narcotics nor weapons were found during the search of the
Cadillac. No weapons or narcotics were discovered on Love’s person. Moreover, he made
no attempt to resist or evade arrest. Such allegations are sufficient to plead a claim for
excessive force under the Fourth Amendment.
Although Defendants briefly argue, incorrectly, that some proof of injury is a
prerequisite for an excessive force claim,8 their primary argument concerns Plaintiff’s failure
to name the particular perpetrator of the alleged force. Defendants assert that, absent this
information, they cannot be held liable for any claim of excessive force. This argument,
however, essentially asks the Plaintiff to prove his claim before he has the opportunity to

See Graham, 490 U.S. at 390-92 (rejecting the lower courts’ application of a standard that required proof of
injury to establish excessive force, and instead holding that the “objective reasonableness” standard of the
Fourth Amendment applies to such claims).
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conduct discovery. At the motion to dismiss stage, a plaintiff is under no such obligation. An
excessive force claim requires a fact-intensive inquiry, but this inquiry is not properly
conducted on a defendant’s motion to dismiss. See Graham, 490 U.S. at 396; accord Brown v.
Prince George’s Cnty., Md., Civ. A. No. DKC-07-2591, 2012 WL 3012573, at *6 (D. Md. July
20, 2012) (internal citations omitted). As such, Defendants’ respective Motions to Dismiss
are DENIED as to Count Two.
IV.

Count Three—Unreasonable and Unlawful Search
In Count Three, Love alleges that Defendants’ search of the Cadillac and ensuing

search of his person violated his right under the Fourth Amendment to be free from
unreasonable search. The United States Supreme Court has repeatedly emphasized that “the
mandate of the (Fourth) Amendment requires adherence to judicial processes[.]” United States
v. Jeffers, 342 U.S. 48, 51 (1951). As such, “searches conducted outside the judicial process,
without prior approval by judge or magistrate, are per se unreasonable under the Fourth
Amendment – subject only to a few specifically established and well-delineated exceptions.”
Katz v. United States, 389 U.S. 347, 357 (1967).
It is undisputed that Defendants did not adhere to the judicial process by securing a
warrant to search the Cadillac and Plaintiff. Instead, they contend that both searches fell
under such “specifically established and well-delineated exceptions” to the warrant
requirement anticipated by Katz and its progeny. With respect to the search of the Cadillac,
Defendants assert that the “automobile exception” authorized the search because they had
“probable cause to believe that the vehicle contain[ed] contraband.” United States v. Ross, 456
U.S. 798, 808 (1982) (citing Carroll v. United States, 267 U.S. 132, 156 (1925)). The
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“automobile exception,” unlike the other exceptions to the warrant requirement, does not
require the existence of exigent circumstances. United States v. White, 549 F.3d 946, 949 (4th
Cir. 2008). Stemming from the inherent mobility of an automobile, this exception simply
demands that probable cause of contraband be established prior to search. Id. (citing Ross,
456 U.S. at 800).
Defendants argue that the positive alert of the service dog provided the requisite
probable cause to search the vehicle. The mere sniffing of the perimeter of a lawfullystopped vehicle by a trained narcotics dog does not trigger the Fourth Amendment. Illinois v.
Caballes, 543 U.S. 405, 409-10 (2005); see also United States v. Jeffus, 22 F.3d 554, 557 (4th Cir.
1994) (citing United States v. Place, 462 U.S. 696, 707 (1983)). When the dog alerts to the
presence of drugs, then the officer has probable cause to search the vehicle. United States v.
Robinson, 707 F.2d 811, 815 (4th Cir. 1983); accord Jeffus, 22 F.3d at 557.
Defendants’ reliance on the automobile exception fails on two grounds. First, as
discussed supra, Plaintiff specifically alleges that a traffic violation had not occurred, thus the
Cadillac was not lawfully stopped. Implicit in the narcotics dog analysis is the legality of the
initial stop. See Caballes, 543 U.S. at 409-10. Second, the Second Amended Complaint alleges
that Sibley’s service dog was inadequately trained, and thus unreliable. While the alert of a
“well-trained narcotics-detection dog” may provide probable cause for a search, id. at 410, the
“drug dog’s positive alert for contraband must possess some indicia of reliability[.]” United
States v. Wu, 217 F. App’x 240, 245 (4th Cir. 2007) (citing with approval United States v.
Kennedy, 131 F.3d 1371, 1376-77 (10th Cir. 1997)). The subject of that search thus is entitled
to “an opportunity to challenge [the] evidence of a dog’s reliability.” Florida v. Harris, 133 S.
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Ct. 1050, 1057 (2013). In support of his claim, Love alleges that Sibley’s drug dog did not
alert when it approached Ms. Elliott, who was later found to be carrying narcotics. Even
further, no narcotics were ever found in the vehicle, thereby negating, Love argues, the dog’s
positive alert. At this early stage, Love has sufficiently pled that Defendants did not have
probable cause to search the Cadillac. He is entitled to challenge the reliability of the
narcotics dog.
Plaintiff has also alleged a plausible claim that the search of his person violated the
Fourth Amendment. First, to the extent Defendants argue that the dog alert also provided
probable cause to search the Plaintiff, the allegations of unreliability noted supra must be
explored further in discovery. Moreover, the positive alert, even if reliable, provided
probable cause to search the vehicle, but not probable cause to search the Plaintiff. Caballes,
543 U.S. at 409-10.
Alternatively, Defendants appear to argue that Love was searched incident to a lawful
arrest. Under the “search incident to a lawful arrest” exception to the warrant requirement,
“a search may be made of the person of the arrestee by virtue of the lawful arrest.” United
States v. Robinson, 414 U.S. 218, 224 (1973). Necessary to this exception, however, is that the
individual in question was lawfully arrested. It is well established that a police officer may
arrest an individual without a warrant when he has probable cause that the suspect “has
committed, is committing, or is about to commit an offense.” Michigan v. DeFilippo, 443 U.S.
31, 37 (1979); accord United States v. Humphries, 372 F.3d 653, 657 (4th Cir. 2004); Maryland v.
Pringle, 540 U.S. 366 (2003). In this case, Plaintiff contends that his arrest was unsupported
by probable cause. The Second Amended Complaint specifically alleges that the Defendants
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found no contraband when searching the vehicle, nor did they have any other articulable
reasons to suspect that Love was engaged in criminal activity. See supra II.A. Even if
Defendants had probable cause to believe that the Cadillac contained contraband,
“additional factors must be present” to connect that contraband to probable cause to arrest
the Plaintiff. Humphries, 372 F.3d at 659 (explaining that “[w]hile the odor of marijuana
provides probable cause to believe that marijuana is present, the presence of marijuana does
not of itself authorize the police either to search any place or to arrest any person in the
vicinity.”). Since Plaintiff has sufficiently pled that his arrest was not supported by probable
cause, the Defendants may not use the “search incident to lawful arrest” doctrine to dismiss
his claim.
Moreover, the Second Amended Complaint makes clear that both searches stemmed
from the unreasonable seizure of the Cadillac. An unreasonable seizure is not considered in
isolation, but rather “taint[s] all that ensued in the investigative encounter[.]” United States v.
Gooding, 695 F.2d 78, 84 (4th Cir. 1982). Since Defendants were allegedly engaged in an
unconstitutional seizure when they allegedly search the Cadillac and Love’s person, they also
violated Love’s Fourth Amendment right to be free from unreasonable searches.
In sum, the Second Amended Complaint plausibly alleges that Defendants violated
Love’s Fourth Amendment right to be free from unreasonable searches. Defendants’
respective Motions to Dismiss are thus DENIED as to Count Three.
V.

Count Four—Conspiracy to Violate Constitutional Rights
It is alleged in Count Four that Defendants “entered into an agreement, between and

among themselves, to act in concert for the purpose of depriving Mr. Love of his right to be
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free from unreasonable searches and seizures and to be free from the use of excessive
force[.]” Second Amend. Compl. ¶ 100. “To establish a civil conspiracy under § 1983, [the
plaintiff] must present evidence that the [defendants] acted jointly in concert and that some
overt act was done in furtherance of the conspiracy which resulted in [plaintiff’s] deprivation
of a constitutional right.” Hinkle v. City of Clarksburg, W. Va., 81 F.3d 416, 421 (4th Cir.
1996). Towards this end, there must be a showing that the defendants entered into some sort
of an agreement, whether positive or tacit, to deprive the plaintiff of a constitutional right.
Id.; see also Simmons v. Poe, 47 F.3d 1370, 1377 (4th Cir. 1995) (explaining that a successful
conspiracy claimant must “show an agreement or a ‘meeting of the minds’ by defendants to
violate the claimant’s constitutional rights”). Courts have held plaintiffs to a relatively
stringent standard in assessing whether a conspiracy claim has been properly alleged. See
Gooden v. Howard County, 954 F.2d 960, 969-70 (4th Cir. 1992) (“To avoid evisceration of the
purposes of qualified immunity, courts have [] required that plaintiffs alleging unlawful intent
in conspiracy claims under . . . § 1983 plead specific facts in a nonconclusory fashion to
survive a motion to dismiss.”).
In this case, Love has set forth specific factual allegations that Defendants acted in a
joint and concerted manner in the underlying events. He alleges that no traffic violation had
occurred, thus Miller and Rankin acted without any proper justification when stopping the
Cadillac. In an effort to legitimize their vehicle stop, Miller and Rankin quickly called Sibley
and his narcotics dog to the scene, an overt act in furtherance of the conspiracy to violated
Plaintiff’s Fourth Amendment rights. He further claims that, during the search of the
vehicle, Rumgay “said to Defendant Miller, “[the narcotics are] in here, Craig, I got a
24

feeling,” to which Defendant Miller replied, “I would hope so.” Second Amend. Compl. ¶
46. This exchange plausibly suggests the requisite ‘meeting of the minds’ through an
expressed communication of a “conspiratorial objective.” Hinkle, 81 F.3d at 421. Although
an explicit agreement is not alleged, a Section 1983 conspiracy claim does not require such
evidence. Moreover, Rumgay’s allegedly false statements further demonstrate a concerted
effort to support the alleged pretextual justifications for the vehicle stop, ensuing searches,
and Plaintiff’s detention.
At its core, Plaintiff’s conspiracy claim “derives from one arrest, one place, and one
time.” Hafner v. Brown, 983 F.2d 570, 578 (4th Cir. 1992). The allegations of the Second
Amended Complaint, considered together and liberally construed, “reasonably lead to the
inference that [Defendants] positively or tacitly came to a mutual understanding to try to
accomplish a common and unlawful plan.” Hinkle, 81 F.3d at 421. Defendants’ respective
Motions to Dismiss are thus DENIED as to Count Four.
VI.

Qualified Immunity
Even if Plaintiff has stated a plausible claim for relief in each count, the Defendants

contend that they are entitled to the protection of qualified immunity for any and all alleged
constitutional violations. 9 As this Court has already considered, and rejected, Defendant
Rumgay’s argument for qualified immunity with respect to his alleged false statements, the
present discussion will focus on Defendants’ right to qualified immunity for Plaintiff’s other
claims.
Generally, motions to dismiss pursuant to Rule 12(b)(6) address the legal sufficiency of a complaint rather
than the existence of meritorious affirmative defenses; however, when the existence of such a meritorious
defense—such as qualified immunity— is apparent on the face of the complaint, dismissal is appropriate.
Occupy Columbia v. Haley, 738 F.3d 107, 116 (4th Cir. 2013). Thus, this Court will address the issue of qualified
immunity by examining the allegations contained in the Second Amended Complaint.

9

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Qualified immunity affords a government officers protection from suits for monetary
damages when the officers have acted in good faith. See Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). This brand of immunity is “an affirmative defense that shields government officials
performing discretionary functions from personal-capacity liability for civil damages under §
1983, insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Occupy Columbia v. Haley, 738 F.3d
107, 118 (4th Cir. 2013) (internal quotation marks omitted); see also Harlow, 457 U.S. at 818
(1982). The doctrine is intended to apply to “gray areas, where the law is unsettled or
murky,” rather than situations where the government actors were “plainly incompetent or . .
. knowingly violate[d] the law.” Occupy Columbia, 738 F.3d at 118. Thus, qualified immunity
shields government officials from § 1983 claims unless “(1) the allegations underlying the
claim, if true, substantiate a violation of federal statutory or constitutional right; and (2) this
violation was of a clearly established right of which a reasonable person would have known.”
Id.
Defendants claim that they are entitled to qualified immunity because Love fails to
allege a violation of a clearly established constitutional right. Specifically, Defendants
contend that the alleged searches and seizures were supported by the requisite reasonable
suspicion or probable cause, and thus could not have violated the Fourth Amendment. Yet,
this Court has noted supra that Love has adequately alleged that the initial seizure of the
Cadillac, ensuing searches of the car and of his person, and his subsequent detention were
not based upon probable cause. The probable cause requirement, however, “has been clearly
established constitutional law for decades.” Harrison v. Prince William County Police Dept., 640
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F. Supp. 2d 688, 702 (E.D. Va. 2009). Moreover, this Court is mindful that the qualified
immunity issue is dependent on a fact-intensive inquiry better conducted after the parties
have the opportunity to engage in discovery. Accordingly, at this stage in the proceedings,
Defendants are not entitled to qualified immunity.
CONCLUSION
For the reasons stated above, Defendant Rumgay’s Motion to Dismiss for Failure to
State a Claim, or in the Alternative, Motion for Summary Judgment (ECF No. 74), construed
as a Motion to Dismiss, is DENIED; Defendants Miller and Rankin’s Motion to Dismiss for
Failure to State a Claim (ECF No. 75) is DENIED; Defendant Sibley’s Motion to Dismiss
(ECF No. 77) is DENIED; Plaintiff’s Motion for Leave to File Surreply in Opposition to
Defendants Miller and Rankin’s Motion to Dismiss (ECF No. 89) is GRANTED; and
Plaintiff’s Motion for Leave to File Surreply in Opposition to Defendant Rumgay’s Motion
to Dismiss (ECF No. 90) is GRANTED. In sum, Plaintiff has sufficiently alleged that
Defendants violated his Fourth Amendment and Fourteenth Amendment rights to be free
from unreasonable searches and seizures, as well as excessive force. At this early stage in the
proceedings, Defendants have not yet demonstrated any entitlement to qualified immunity
for their alleged actions. All counts thus remain pending against the Defendants. Discovery
and pretrial dispositive motions will proceed per the parties’ Joint Motion to Modify
Scheduling Order (ECF No. 92).
A separate Order follows.
Dated: March 15, 2016

/s/_____________________________
Richard D. Bennett
United States District Judge
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