Foster et al v. Vignola et al

Filing 51

MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 7/30/2015. (nd2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

THOMAS ROBERT FOSTER, et al.,
Plaintiffs,
v.

:
:
:

Civil Action No. GLR-13-3758

OFFICER CARMINE VIGNOLA, et al.,:
Defendants.

:
MEMORANDUM OPINION

Plaintiffs, Thomas Robert Foster (“Foster, Jr.”), Thomas
Darnell Foster (“Foster, Sr.”), and Surina C. Foster, bring this
action pursuant to 42 U.S.C. § 1983 (2012), seeking monetary
damages for alleged violations of their rights under the Fourth
Amendment in connection with Foster, Jr.’s arrest and subsequent
search of Plaintiffs’ residence.

Pending before the Court is

Defendants’ Motion for Summary Judgment (ECF No. 38) and Motion
to Strike from Plaintiffs’ Opposition to Defendants’ Motion for
Summary Judgment Plaintiff Thomas Robert Foster’s Affidavit (ECF
No. 48). Having reviewed the pleadings and supporting documents,
the Court finds no hearing necessary.
(D.Md. 2014).

See Local Rule 105.6

For the reasons outlined below, the Defendants’

Motion to Strike will be granted in part and the Motion for
Summary Judgment will be granted.

I.
Plaintiffs
Wilvan

Foster,

Avenue,

Jr.

Baltimore,

BACKGROUND
and

Foster,

Maryland

Sr.

(the

reside

at

5611

“Residence”).

The

Residence is a two story brick single-family detached home that
is equipped with surveillance cameras covering the front and
exterior

entrances.

On

the

afternoon

of

May

24,

2012,

at

approximately 3:10 p.m., Foster, Jr. exited the front door of
the Residence, walked through his driveway across the street to
his personal vehicle, and drove off. The surveillance camera in
front of the Residence captured Foster, Jr.’s image as he left
the Residence.

A few minutes later, Foster, Jr. was arrested by

Detectives Thomas E. Wilson and Gregory Fisher a few blocks from
the Residence.
wrote

a

After arresting Foster, Jr., Detective Wilson

detailed

sworn

statement

of

probable

cause

which

purported to justify the arrest and subsequent search warrant
for the Residence.
The

following

facts

are

derived

from

Detective

Wilson’s

sworn statement of probable cause (Defs.’ Mot. Summ. J. Ex. A
[“Statement
surveilling

of

Probable

Foster,

Jr.

Cause”],
for

ECF

suspected

No.

narcotics

38-2):

while

distribution

based on statements from a confidential source, on May 24, 2012,
at approximately 3:10 p.m., Detective Wilson observed Foster,
Jr.

exit

the

front

drawstring bag.

door

of

the

(Id. at 4-5).
2

Residence

carrying

a

black

Detectives Wilson and Fisher

proceeded to follow Foster, Jr., during which time Detective
Wilson observed what he perceived to be a hand-to-hand drug
transaction.
approaching

(Id.

at

Foster,

5).

An

Jr.’s

unknown

vehicle

male

and,

was

after

observed
a

brief

conversation, Foster, Jr. handed the unknown male U.S. currency
in

exchange

for

a

small

amount

dangerous substance (“CDS”).
drive away.

of

(Id.).

a

suspected

controlled

Foster, Jr. then began to

(Id.).

Believing

they

had

just

witnessed

a

possible

narcotics

transaction, Detectives Wilson and Fisher attempted to conduct a
car stop.
the

(Id.).

stopped

As Detectives Wilson and Fisher approached

vehicle,

Foster,

Jr.

drove

off.

(Id.).

While

pursuing the vehicle, Detective Wilson observed Foster, Jr. toss
a black bag out of the driver’s side window.

(Id.).

Detectives

Wilson and Fisher continued to pursue the vehicle to a dead end,
at which point, Foster, Jr. exited the vehicle and fled on foot.
(Id.).

After

a

brief

chase

on

foot,

Detectives

Fisher caught Foster, Jr. and arrested him.

(Id.).

Wilson

and

Foster, Jr.

alleges that while being taken into custody, Detective Wilson
employed

excessive

and

unreasonable

force

against

striking him in his face while he was handcuffed.

him

by

(See Compl.

¶¶ 20, 39, ECF No. 1).
After his apprehension, Foster, Jr. was transported back to
the

vehicle

he

had

previously
3

abandoned.

Once

the

parties

arrived at the vehicle, Foster, Jr. began yelling to bystanders
to inform his “people” about his arrest.1
Cause

at

6).

Detective

Fisher

seized

(Statement of Probable
a

clear

plastic

bag

containing marijuana lying in plain view in the center console
of the vehicle.

(Id.).

Further, Detective Wilson retrieved the

black bag that was observed being thrown out of the vehicle.
(Id.).

The bag contained approximately one quarter pound of

marijuana, $250 in cash, a measuring scale, and CDS packaging
material.

(Id.).

Concerned
removal

of

that

word

potential

of

his

narcotics

arrest
or

would

contraband

result

in

the

kept

in

the

Residence, Detectives Wilson and Fisher responded to 5611 Wilvan
Avenue.

(Id.).

protective

sweep,

Upon securing the Residence and performing a
Detectives

Wilson

and

Fisher

unattended two year child old home alone.

discovered

(Id.).

an

Sergeant

Keith Gladstone and Detective Carmine Vignola were then called
to the location to secure the Residence while Detective Wilson
obtained a search warrant.
Based on these facts, Judge Michael W. Reed, of the Circuit
Court for Baltimore City, Maryland, issued a search warrant for
1

Although not included in the Statement of Probable Cause,
at the time of his arrest Foster, Jr. also told detectives he
“had a baby at home.”
(Foster Dep. 22:20-3:5).
Detective
Fisher testified at deposition that he and Detective Wilson
believed exigent circumstances necessitated immediate entry into
the Residence, in part, because they believed there was an
unattended “kid” there. (Fisher Dep. 32:5-9).
4

the

Residence.

Upon

searching

the

Residence,

Defendants

discovered three large bags of marijuana, a measuring scale, a
.22

caliber

revolver,

a

.40

caliber

Berretta

semiautomatic

handgun, materials commonly used to package marijuana, and $920
dollars in cash.
In

direct

contradiction

to

Detective

Wilson’s

sworn

statement, however, a review of the video from the surveillance
camera at the front of the Residence revealed that Foster, Jr.
was not carrying a black bag, or any similar item, in his hands
when he exited his home.

Moreover, the surveillance camera

captured

Defendants

the

image

of

all

entering

prior to the search warrant being issued.

the

Residence

On December 7, 2012

the Office of the State’s Attorney released Foster, Jr. and
declined

to

prosecute

because

of

the

discrepancy

noted

in

Detective Wilson’s statement of probable cause.
On

December

12,

2013,

Plaintiffs

filed

a

three-count

Complaint alleging constitutional violations resulting from a
false arrest, falsified sworn statement of probable cause, and
an illegal search of the Residence.

(ECF No. 1).

Plaintiffs

allege the false assertions in the statement of probable cause
and warrant application led to Foster, Jr.’s criminal indictment
and

subsequent

incarceration

totaling

197

days.

Further,

Plaintiffs allege Defendants conducted an unlawful search of the
Residence

prior

to

obtaining
5

a

search

warrant,

while

contemporaneously unlawfully and unjustifiably restricting Ms.
Foster’s movements.
Count I states three separate causes of actions against
Detective Wilson.

First, Foster, Jr. alleges Detective Wilson

violated his Fourth Amendment right to be secure against an
unreasonable seizure by acting without probable cause and using
excessive force during his arrest.
Detective
secure

Wilson

against

warrantless

violated
an

search

his

Fourth

unreasonable
of

his

Second, Foster, Sr. alleges

home

Amendment

search
and

by

right

to

be

conducting

a

subsequently

knowingly

falsifying an affidavit in support of a search warrant.

Third,

Ms.

Fourth

Foster

alleges

Detective

Wilson

violated

her

Amendment right to be secure against an unreasonable seizure by
unjustifiably restricting her movements.
Count II alleges two separate causes of actions against
Defendants Detectives Wilson, Vignola, and Fisher, and Sergeant
Gladstone.

First, Plaintiffs allege Defendants violated their

Fourth Amendment rights to be secure against an unreasonable
search

by

unjustifiably

entering

without a valid search warrant.
Defendants

violated

her

Fourth

and

searching

their

home

Second, Ms. Foster alleges
Amendment

right

to

be

secure

against an unreasonable seizure by unjustifiably restricting her
movements.

Count III was dismissed by the Court on August 7,

2014, and Defendants Mayor and City Council of Baltimore and
6

Former Baltimore Police Commissioner Frederick Bealefeld, III,
were dismissed from the case.

(See ECF No. 28).

On December 15, 2014, the remaining Defendants, Detectives
Wilson, Vignola, and Fisher, and Sergeant Gladstone, filed a
Motion

for

Summary

Judgment

(ECF

No.

38)

arguing

they

were

legally justified in the search and seizure of Foster, Jr. and
the Residence based on probable cause.

On February 4, 2015,

Plaintiffs filed a Response in Opposition to the Motion (ECF No.
43)

asserting

Wilson’s

a

dispute

of

misrepresentation

material

in

the

fact

search

given
warrant

Detective
and

the

parties’ conflicting version of events leading up to Foster,
Jr.’s arrest.

On March 3, 2015, Defendants moved to Strike

Foster, Jr.’s affidavit.

(ECF No. 48).

The Motions are fully

briefed and ripe for disposition.
II. DISCUSSION
A.

Standard of Review
Under Federal Rule of Civil Procedure 56, the Court must

grant summary judgment if the moving party demonstrates that
there is no genuine issue as to any material fact, and that the
moving

party

is

entitled

Fed.R.Civ.P. 56(a).

to

judgment

as

a

matter

of

law.

In reviewing a motion for summary judgment,

the Court views the facts in a light most favorable to the nonmoving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144,
7

157 (1970)).

Once a motion for summary judgment is properly

made and supported, the opposing party has the burden of showing
that a genuine dispute exists.

Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
“[T]he
between

the

mere

existence

parties

will

of

some

not

alleged

defeat

an

factual

otherwise

dispute
properly

supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.”
at 247-48 (alteration in the original).

Anderson, 477 U.S.

A “material fact” is a

fact that might affect the outcome of a party’s case.

Id. at

248; see also JKC Holding Co. v. Wash. Sports Ventures, Inc.,
264

F.3d

459,

465

(4th

Cir.

2001)

(citing

Caldera, 249 F.3d 259, 265 (4th Cir. 2001)).

Hooven-Lewis

v.

Whether a fact is

considered to be “material” is determined by the substantive
law,

and

outcome

“[o]nly
of

the

disputes
suit

over

under

facts

the

that

governing

preclude the entry of summary judgment.”

might
law

affect

will

the

properly

Anderson, 477 U.S. at

248; Hooven-Lewis, 249 F.3d at 265.
“The party opposing a properly supported motion for summary
judgment may not rest upon the mere allegations or denials of
[his]

pleadings,

but

rather

must

set

forth

specific

showing that there is a genuine issue for trial.”

facts

Bouchat v.

Balt. Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir.
2003) (alteration in original) (quoting Fed.R.Civ.P. 56(e)). The
8

court must “view the evidence in the light most favorable to . .
. the nonmovant, and draw all reasonable inferences in her favor
without

weighing

the

evidence

or

assessing

the

witness

credibility,” Dennis v. Columbia Colleton Med. Ctr., Inc., 290
F.3d 639, 644-45 (4th Cir. 2002).
B.

Analysis
1. Motion to Strike
Preliminarily, Foster, Jr. attached to his Opposition to

Defendants’ Motion for Summary Judgment an affidavit asserting
substantive information related to his version of events leading
up to his arrest on the afternoon of May 24, 2012.

In reviewing

the record, however, the Court is satisfied that the affidavit
submitted by Foster, Jr. directly relates to subject matter for
which he asserted a Fifth Amendment privilege at his deposition.
In In re Edmond, the United States Court of Appeals for the
Fourth Circuit made clear that “the Fifth Amendment privilege
cannot

be

invoked

as

a

shield

to

oppose

depositions

while

discarding it for the limited purpose of making statements to
[compel a certain result on] summary judgment.”
1308 (4th Cir. 1991).

934 F.2d 1304,

Plaintiffs argues In re Edmond should not

apply here because he voluntarily submitted to the deposition,
but

invoked

certain

his

Fifth

activities;

privilege

to

while

shield

Amendment
Edmond

himself

privilege
invoked

from
9

concerning

his

having

Fifth

to

only

Amendment

submit

to

a

deposition

all

together.

The

distinction

is

immaterial,

however, because here, as in In re Edmond, “[b]y selectively
asserting his Fifth Amendment privilege, [Foster, Jr.] attempted
to insure that his unquestioned, unverified affidavit would be
the only version [of events].”
did

not

have

an

Id. at 1308.

opportunity

to

Because Defendants

challenge

Foster,

Jr.’s

testimony, their Motion to Strike from Plaintiffs’ Opposition to
Defendants’ Motion for Summary Judgment Plaintiff Thomas Robert
Foster’s Affidavit will be granted.
2. Warrantless Arrest
The Fourth Amendment protects citizens against unreasonable
searches

and

seizures.

seizures

are

“per

se

U.S.

Const.

amend.

IV.

unreasonable”—“subject

Warrantless

only

to

a

few

specifically established and well-delineated exceptions.” Katz
v.

United

States,

389

U.S.

347,

357

(1967).

A

warrantless

arrest is reasonable under the Fourth Amendment if there is
probable cause to believe that the suspect has committed or is
committing an offense. See Devenpeck v. Alford, 543 U.S. 146,
152 (2004).
probable

Thus, central to this case is whether there was

cause

to

believe

that

Foster,

Jr.

was

engaged

in

criminal activity.
Probable cause to justify an arrest is determined from the
totality of the circumstances known to the officer at the time
of the arrest. Brown v. Gilmore, 278 F.3d 362, 367 (4th Cir.
10

2002) (citing United States v. Garcia, 848 F.2d 58, 59–60 (4th
Cir. 1988)).

“There need only be enough evidence to warrant the

belief of a reasonable officer that an offense has been or is
being

committed;

evidence

sufficient

to

convict

is

not

required.” Id. (citing Wong Sun v. United States, 371 U.S. 471,
479 (1963)).

In considering whether probable cause exists in a

particular situation, the Court must consider two factors: “the
suspect’s conduct as shown to the officer, and the contours of
the offense thought to be committed by that conduct.” Ross v.
Early, 746 F.3d 546, 561 (4th Cir. 2014), cert. denied, 135
S.Ct. 183 (2014) (quoting Rogers v. Pendleton, 249 F.3d 279, 290
(4th Cir. 2001)).
With Foster, Jr.’s affidavit removed from consideration,
there is little doubt in the existence of probable cause for his
arrest.2

The undisputed record evidence establishes that while

surveilling

Foster,

Jr.

for

suspected

narcotics

distribution

based on statements from a confidential source, Detective Wilson
observed

what

transaction.

he

perceived

Believing

he

to
had

be
just

a

hand-to-hand

witnessed

a

drug

possible

narcotics transaction, Detective Wilson attempted to conduct a

2

To the extent Foster, Jr. asks the Court to make a
credibility determination as to Detective Wilson using Detective
Fisher’s testimony, the Court will not assess the credibility of
a witness in considering a motion for summary judgment. Dennis,
290 F.3d at 644-45.
11

car

stop.

As

Detectives

Wilson

and

Fisher

approached

the

stopped vehicle, however, Foster, Jr. drove off.
While

pursuing

the

vehicle,

Detective

Wilson

observed

Foster, Jr. toss a black bag out of the driver’s side window.
Detectives Wilson and Fisher continued to pursue the vehicle to
a dead end, at which point, Foster, Jr. exited the vehicle and
fled on foot.

After a brief chase on foot, Detectives Wilson

and Fisher caught Foster, Jr. and brought him back to the area
of his vehicle.

Detective Fisher then found a clear plastic bag

containing marijuana lying in plain view in the center console
of Foster, Jr.’s vehicle.

Further, Detective Wilson retrieved

the black bag that was observed being thrown from the vehicle.
The bag contained approximately one quarter pound of marijuana,
$250 in cash, a measuring scale, and CDS packaging material.
The Court concludes that Detectives Wilson and Fisher were
justified
criminal

in

suspecting

activity,

and,

that

Foster,

therefore,

in

Jr.

was

involved

investigating

in

further.

See Williams v. State, 981 A.2d 46, 55 (Md.Ct.Spec.App. 2009)
(“[P]robable cause may be found even if a trained, experienced
police officer is not able to see whether the object transferred
by one person to another was contraband.”); see also Illinois v.
Wardlow, 528 U.S. 119, 124 (2000) (“Headlong flight—wherever it
occurs—is the consummate act of evasion: It is not necessarily
indicative

of

wrongdoing,

but

it
12

is

certainly

suggestive

of

such.”).

Detectives then found Foster, Jr. in possession of

marijuana and arrested him.
Moreover,

Maryland

law

allows

an

officer

to

make

a

warrantless arrest where the arrestee commits a misdemeanor in
the presence or within the view of a police officer.
Ann., Crim. Proc. § 2-202 (West 2015).
Detective

Wilson

Maryland’s

and

unattended

Fisher

It is undisputed that

observed

vehicle

Md. Code

Foster,

statute.

See

Jr.

Md.

violate

Code

Ann.,

Transp. § 21-1101 (West 2015) (“[A] person driving or otherwise
in charge of a motor vehicle may not leave it unattended until
the engine is stopped, the ignition locked, the key removed, and
the brake effectively set.”).

Thus, the moment Foster, Jr.

exited his running vehicle and fled on foot, Detectives had
probably cause to arrest him.
Nevertheless, “the ‘reasonableness’ of a particular seizure
depends not only on when it is made, but also on how it is
carried
(citing

out.”

Graham

Tennessee

v.

v.

Connor,

Garner,

490

471

U.S.

U.S.

386,
1,

395

7-8

(1989)

(1985)).

Notwithstanding the existence of probable cause to arrest, where
a claim of excessive force arises in the context of an arrest,
it

is

similarly

analyzed

under

the

Fourth

“reasonableness” standard.

Id. at 394-95.

allegation

Wilson

that

Detective

13

ever

Amendment’s

Since there is no

touched

Foster,

Jr.,

however, there can be no excessive force claim made against him.3
Accordingly,

the

Court

concludes

that

Detective

Wilson

is

entitled to judgment, as a matter of law, that he committed no
constitutional infraction in the arrest of Foster, Jr.
3. Warrantless Search
Next, the Court turns to Foster, Jr. and Foster, Sr.’s
allegations

that

Detective

Wilson

violated

their

Fourth

Amendment rights by conducting a warrantless search of their
home

and

subsequently

knowingly

falsifying

an

affidavit

in

support of a search warrant.4
Warrantless searches are presumptively unreasonable under
the Fourth Amendment.
(2011).

presumption

may

be

exigency of the situation.

Id.

The Supreme Court of the United

States

The

Kentucky v. King, 131 S.Ct. 1849, 1856

has

warrantless

identified

several

search

a

of

overcome,

exigencies

home.

3

Police

however,

that

may

officers

by

the

justify

may

enter

a
a

Count I of the Complaint alleges that Detective Wilson
struck Foster, Jr. in the face while he was handcuffed. (Compl.
¶¶ 20, 39). In his deposition, however, Foster, Jr. testified
that it was Detective Fisher that struck him in the face while
he was handcuffed. (See Foster Dep. 37:20-38:1). There are no
allegations of excessive force against Detective Fisher in the
Complaint.
4
Ms. Foster neither resides at the Residence nor was she
present at the Residence when Defendants entered and has,
therefore, failed to demonstrate any legitimate expectation of
privacy in the Residence.
“Only legitimate expectations of
privacy are protected by the Constitution.” Rakas v. Illinois,
439 U.S. 128, 151 (1978). Accordingly, Ms. Foster lacks Fourth
Amendment standing to challenge the search of the Residence.
14

premises

without

evidence.

a

warrant

to

prevent

the

destruction

of

Id.; see also United States v. Grissett, 925 F.2d

776, 778 (4th Cir. 1991) (“Exigent circumstances can arise when
the evidence might be destroyed before a search warrant could be
obtained.”).
In United States v. Turner, the Fourth Circuit set forth
five

factors

circumstances

relevant
arising

to

determining

from

contraband evidence existed.

the

whether

potential

exigent

destruction

of

These factors include:

(1) the degree of urgency involved and the amount of time
necessary to obtain a warrant; (2) the officers’ reasonable
belief that the contraband is about to be removed or
destroyed; (3) the possibility of danger to police guarding
the site; (4) information indicating the possessors of the
contraband are aware that the police are on their trail;
and (5) the ready destructibility of the contraband.
650

F.2d

526,

528

(4th

Cir.

1981).

“[T]he

proper

inquiry

focuses on what an objective officer could reasonably believe.”
Grissett, 925 F.2d at 778.
First, while acting on a tip from a confidential source
that a man fitting the description of Foster, Jr. was storing
illegal narcotics at the Residence, Detective Wilson observed
Foster, Jr. exit the Residence just prior to observing him toss
a

black

bag,

marijuana,
Second,

out

while

containing
of

the

approximately

driver’s

Detectives

were

side
in

one
window

the

quarter
of

process

his
of

pound

of

vehicle.
arresting

Foster, Jr., only a few blocks from his home, he began yelling
15

to a crowd of bystanders to tell his “people” that he was being
arrested.

Based on these undisputed facts, the Court finds that

there was a rational basis for Detectives Wilson and Fisher to
believe that: (1) marijuana, which is readily destructible, was
present in the Residence; (2) Foster, Jr. was alerting people
close to him to either destroy or remove the marijuana from his
home; and (3) they were confronted with an emergency in which
the delay necessary to obtain a warrant would enable someone
close

to

Foster,

Jr.

to

enter

the

Residence

and

destroy

only

one

evidence.
Moreover,
several

the

destruction

situations

obviating

the

that

requirement

of

may
of

contraband

create
a

is

exigent

warrant.

of

circumstances

Another

judicially

recognized exigency is the objectively reasonable belief that
immediate entry is needed to render assistance or prevent harm
to persons within.

Hunsberger v. Wood, 570 F.3d 546, 555 (4th

Cir. 2009) (quoting United States v. Moss, 963 F.2d 673, 678
(4th Cir. 1992)).
left

a

baby

at

Here, Foster, Jr. told the Detectives that he
the

Residence.

Foster, Jr. Dep. 22:3-5).
absence

of

responsible

(Fisher

Dep.

28:3-6,

32:5-8

“Simply as a general matter, ‘the

adult

supervision

of

children

is

an

exigent circumstance justifying a warrantless entry.’” United
States v. Taylor, 624 F.3d 626, 632 (4th Cir. 2010) (quoting
People

v.

Peterson,

543

S.E.2d
16

692,

696

(Ga.

2001)).

Accordingly,

the

justified

ensure

to

warrantless
the

entry

safety

of

of

the

the

Residence

child

and

was

to

prevent

initial

entry,

potential evidence from being destroyed or removed.
The

reasonableness

of

the

Detectives’

however, does not exhaust the concerns of the Fourth Amendment.
Plaintiffs

allege

Detectives

conducted

an

unconstitutional

search of the Residence prior to obtaining a search warrant.
support

of

this

contention,

Ms.

Foster

testified

that

In
she

observed officers walking around inside the Residence and an
unidentified officer was looking above the entertainment system
and feeling behind the television set.
14:6-11, ECF No. 38-5).

(Surina Foster Dep.

Defendants contend, however, that once

inside, they conducted a constitutionally permitted protective
sweep to ensure there were no other individuals in the Residence
and a limited search in an attempt to identify the unattended
two-year-old found inside.
Although
justified,

the

the

warrantless

scope

of

entry

the

ensuing

of

the

search

Residence
must

also

is
be

reasonable and “be limited by the type of emergency involved.”
Taylor, 624 F.3d at 633 (quoting United States v. Moss, 963 F.2d
673, 678 (4th Cir. 1992)).
“protective

sweep”

when

Officers are entitled to perform a

they

have

“articulable

facts

which,

taken together with the rational inferences from which those
facts, would warrant a reasonably prudent officer in believing
17

that the area to be swept harbors an individual posing a danger
to those on the arrest scene.”

United States v. Jones, 667 F.3d

477, 483 (4th Cir. 2012) (quoting Maryland v. Buie, 494 U.S.
325, 334 (1990)).
Here, despite the arrest occurring outside the Residence,
Detectives

reasonably

individuals inside.
basis

for

suspected

there

may

have

been

other

As discussed above, there was a rational

Detectives’

belief

that

Foster,

Jr.

was

alerting

people close to him to either destroy or remove evidence from
his home; thus, Detectives could make the reasonable inference
that someone could have entered the Residence to destroy or
remove

evidence

therefore,

that

prior

to

Defendants

their

arrival.

were

The

reasonable

Court

in

finds,

conducting

a

protective sweep to ensure there was no one inside the Residence
that could pose a danger to them and to secure the Residence in
preparation for a search warrant.5
Moreover,

Ms.

Foster

testified

that

when

she

asked

the

officer why he was searching before a search warrant was issued,
the officer indicated that he was looking for a piece of mail to
identify the unattended child.

(Surina Foster Dep. 14:14-21).

The Court finds that a search for documents to help identify an
unattended

two-year-old

child

was

5

reasonable

to

ensure

the

Ms. Foster’s testimony that Detectives were walking around
inside the Residence is consistent with Defendants argument that
they were conducting a protective sweep.
18

child's

safety

emergency.
a

matter

and,

therefore,

within

the

scope

of

the

Accordingly, Defendants are entitled to judgment, as
of

law,

that

the

initial

protective

sweep

of

the

Residence was not unreasonable within the meaning of the Fourth
Amendment.
4. Subsequent Search Warrant
Finally,
Residence

was

Plaintiffs

argue

unreasonable

the

within

ensuing

the

search

meaning

of

of

the

the

Fourth

Amendment because the probable cause on which the search warrant
was

based

was

tainted

by

two

intentional

misrepresentations.

First, Plaintiffs assert that the surveillance camera at the
front

of

the

Residence

revealed

that

Foster,

Jr.

was

not

carrying a black bag or any similar item in his hands when he
exited his home; and, second, that Detectives Wilson and Fisher
could not have observed Foster, Jr.’s activities from a position
in the 5600 block of Groveland Avenue.

“It is well-established

that a false or misleading statement in a warrant affidavit does
not constitute a Fourth Amendment violation unless the statement
is ‘necessary to the finding of probable cause.’”

Wilkes v.

Young, 28 F.3d 1362, 1365 (4th Cir. 1994) (quoting Franks v.
Delaware, 438 U.S. 154, 156 (1978).
Here, the undisputed facts stated in the sworn statement of
probable cause establish that Detective Wilson received a tip
from a confidential source that a man fitting the description of
19

Foster, Jr. was storing illegal narcotics at the Residence, and
selling

those

neighborhood.
Residence

narcotics

in

the

immediate

surrounding

Detective Wilson observed Foster, Jr. exiting the

immediately

prior

to

observing

transaction just a few blocks away.

a

suspected

drug

After a brief case and upon

his arrest, officers seized a quantity of marijuana and cash.
Based upon these facts, the Court concludes there was sufficient
probable cause to support a search warrant for the Residence
even in the absence of Detectives Wilson’s misrepresentations.
Accordingly, Defendants are entitled to judgment, as a matter of
law,

that

the

ensuing

search

of

the

Residence

was

not

unreasonable within the meaning of the Fourth Amendment.
5. Surina Foster
The

Court

next

turns

to

Ms.

Foster’s

allegations

that

Defendants deprived her of her Fourth Amendment right to be
secure

against

an

unreasonable

restricting her movements.

seizure

by

unjustifiably

“[A] person has been ‘seized’ within

the meaning of the Fourth Amendment only if, in view of all of
the circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave.”
States v. Mendenhall, 446 U.S. 544, 554 (1980).

United

Ms. Foster

testified that she never felt as though she was not free to
leave.

(See

Surina

Foster

Dep.

20

17:5-7).

Accordingly,

Defendants are entitled to judgment, as a matter of law, that
Ms. Foster’s Fourth Amendment rights were not violated.
III. CONCLUSION
For the foregoing reasons, this Court will, by separate
Order, GRANT Defendant’s Motion for Summary Judgment (ECF No.
38),

and

GRANT

Plaintiffs'
Judgment

in

Opposition

Plaintiff

Reference
Allegations

part

to

and

about

(ECF No. 48).

Defendant’s

to

Thomas

Motion

Defendants'
Robert

Evidence
Defendant

of

Motion

Foster's
Irrelevant

Detective

to

Strike
for

Affidavit
and

Wilson's

from

Summary
and

all

Inadmissible
Prior

Conduct

Defendant’s request to strike all references to

and evidence of irrelevant and inadmissible allegations about
Defendant Detective Wilson’s prior conduct is DENIED as Moot.
Entered this 30th day of July, 2015

/s/
_____________________________
George L. Russell, III
United States District Judge

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