Farkarlun v. Hanning et al
Filing
67
MEMORANDUM OPINION AND ORDER granting 35 the Hennepin County Defendants' Motion for Summary Judgment; granting 44 the Minneapolis Defendants' Motion for Summary Judgment (Written Opinion). Signed by Judge Ann D. Montgomery on 03/02/2012. (TLU)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Trisha K. Farkarlun,
Plaintiff,
MEMORANDUM OPINION
AND ORDER
Civil No. 10-452 ADM/JJK
v.
Deputy J. M. Hanning, individual;
Sgt. Peterson, individual; Deputy B. Novotny,
individual; Deputy Sommerfeld, individual;
County of Hennepin, Minnesota; Chao Lee,
in his individual capacity; Karina
Landmesser, in her individual capacity;
Marjane Khazraeinazmpour, in her
individual capacity; Mark Lanasa, in his
individual capacity; Joseph Klimmer, in his
individual capacity; Sgt. Daniel Swalve, in
his individual capacity; and the City of
Minneapolis,
Defendants.
______________________________________________________________________________
Jill Clark, Esq., Jill Clark PA, Golden Valley, MN, on behalf of Plaintiff.
Toni A. Beitz, Esq., Hennepin County Attorney’s Office, Minneapolis, MN, on behalf of
Defendants Deputy J. M. Hanning, Sgt. Peterson, Deputy B. Novotny, Deputy Sommerfeld, and
County of Hennepin.
Timothy S. Skarda, Esq., Minneapolis City Attorney’s Office, Minneapolis, MN, on behalf of
Defendants Chao Lee, Karina Landmesser, Marjane Khazraeinazmpour, Mark Lanasa, Joseph
Klimmer, Sgt. Daniel Swalve, and the City of Minneapolis.
______________________________________________________________________________
I. INTRODUCTION
On December 12, 2011, the undersigned United States District Judge heard oral argument
on Defendants County of Hennepin (“Hennepin County”), Deputy Jodie Hannig1 (“Hannig”),
Deputy B. Novotny (“Novotny”), Sgt. Peterson (“Peterson”), and Deputy Sommerfeld’s
1
Although the caption refers to “Deputy J.M. Hanning,” the Defendant’s correct name is
Jodie Hannig.
(“Sommerfeld”) Motion for Summary Judgment [Docket No. 35] (“Hennepin County’s
Summary Judgment Motion”) and on Defendants Chao Lee (“Lee”), Karina Landmesser
(“Landmesser”), Marjane Khazraeinazmpour (“Khazraeinazmpour”), Mark Lanasa (“Lanasa”),
Joseph Klimmek2 (“Klimmek”), Sgt. Daniel Swalve (“Swalve”), and the City of Minneapolis’s
(“Minneapolis”) Motion for Summary Judgment [Docket No. 44] (Minneapolis’s Summary
Judgment Motion”). Plaintiff Trisha K. Farkarlun (“Farkarlun”) opposes both motions. For the
reasons set forth below, Hennepin County’s Summary Judgment Motion is granted and
Minneapolis’s Summary Judgment Motion is granted.
II. BACKGROUND3
Plaintiff Farkarlun brings this 42 U.S.C. § 1983 action alleging violation of her
constitutional rights by Defendants during a September 30, 2009 incident. Integral to her present
claims, however, is a separate incident of alleged police misconduct, the subject of a separate
lawsuit, that she suggests motivated the law enforcement officers here to retaliate against her.
Farkarlun alleges that on July 28, 2007, two Minneapolis Police Department (“MPD”)
officers, Barnes and Gillies, raped her. Decl. of Jill Clark, Esq. filed in Opp. to Summ. J.
[Docket No. 54] (“Clark Decl.”) Ex. 9 ¶¶ 19-21. She went to the hospital for examination that
same day, after which a nurse reported the incident to the MPD. Id. ¶¶ 22–24. After
investigating her rape claims, Farkarlun was criminally charged for making a false complaint of
2
Although the caption refers to “Joseph Klimmer,” the Defendant’s correact name is Joseph
Klimmek.
3
On a motion for summary judgment, the Court views the evidence in the light most
favorable to the nonmoving party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995).
2
police misconduct. Decl. of Adam S. Richardson Filed in Opp. to Summ. J. [Docket No. 51]
(“Richardson Decl.”) ¶ 1. After a jury trial, Farkarlun was convicted of the false report charge.
Richardson Decl. ¶ 2. Around the time of her sentencing in July 2009, Farkarlun initiated a civil
lawsuit based on the rape allegations. Richardson Decl. ¶ 3; Clark Decl. Ex 9. Farkarlun
appealed her criminal conviction and in December 2010, the statute under which she was
convicted was invalidated by the Minnesota Court of Appeals on constitutional grounds. Clark
Decl. Ex. 6. Her criminal trial and civil lawsuit received media attention, particularly from the
Minneapolis Star Tribune and law enforcement-oriented internet blogs. See Richardson Decl. ¶
3, Ex. A.
On September 30, 2009, some two months after her sentencing and commencing a civil
lawsuit against the MPD, Farkarlun joined friends in a downtown Minneapolis bar. Clark Decl.
Ex. 17 (“Farkarlun Dep.”) 30:11–31:13. After leaving the bar around 1 a.m., the car in which
Farkarlun was riding was stopped by MPD Officers Defendants Lanasa and Lee. Aff. of
Timothy S. Skarda [Docket No. 47] (“Skarda Aff.”) Ex. 1 (“CAPRS Report”) 6–7; Farkarlun
Dep. 30:11-15.
Lanasa and Lee allege they observed, over live video cameras at the MPD’s First
Precinct, someone drop a small object on the street, someone else quickly retrieve that object,
and then both people making a hand-to-hand transaction, i.e. activity indicative of possible drug
dealing. CAPRS Report 6–7; Aff. of Toni A. Beitz [Docket No. 41] (“Beitz Aff.”) Ex. F
(“Lanasa Dep.”) 16:12–18:24, 33:15-25; Beitz Aff. Ex. G (“Lee Dep.”) 12:10–14:3, 15:1–16:9.
The people engaging in this activity had no other apparent purpose; they were in an area of
3
downtown Minneapolis that had no brick-and-mortar businesses. See Lanasa Dep. 33:3-8.
Lanasa and Lee claim that they immediately left the First Precinct to arrest the suspect, and were
informed over radio that the suspect had departed the area in a vehicle bearing Minnesota license
plate number VMC-973. CAPRS Report 7. Lanasa and Lee were also given a description of the
vehicle as a “dark compact car” via radio. CAPRS Report 6; Lee Dep. 23:4–6.4 The vehicle
ultimately stopped by Lanasa and Lee, and in which they found Farkarlun, was a dark green
compact sedan bearing license plate number VMC-973. CAPRS Report 4.
Farkarlun disputes Lanasa and Lee’s version of the events. First, Farkarlun denies being
the person that dropped anything on the ground. Farkarlun Dep. 32:8–16. Second, it appears
Farkarlun disputes that anyone dropped anything on the ground. While stopping short of directly
stating that Lanasa and Lee retaliated against her by targeting her for a new arrest, implicit in her
claim is an allegation that Lanasa and Lee never had probable cause to suspect drug dealing
because Lanasa and Lee were aware of the rape allegations. The only support for her contention
that Lanasa and Lee knew of the rape allegations is Farkarlun’s proffer that Lanasa admitted he
knows who Officer Gillies is and Lee’s admission that he previously knew Officer Barnes.
Lanasa Dep. 10:19–20; Clark Decl. Ex. 18 32:13–25. Farkarlun also relies on the timing of the
incident, two months after her sentencing and its attendant media coverage. Pl.’s Mem. Filed in
4
Farkarlun argues reference to the radio update should be excluded because it is hearsay.
Due to the briefing schedule, the Minneapolis Defendants did not have an opportunity to respond
to that objection. Regardless, the evidence of the radio communication is admissible either as
non-hearsay, offered only to prove the state of mind of the officers and not the truth of the matter
asserted, or under the present-sense impression exception to the hearsay rule. See Fed. R. Evid.
801, 803.
4
Opp. to Summ. J. 6. Farkarlun argues Lanasa and Lee’s stop of the vehicle she was in after only
half a block of travel suggests the officers could not have been at the First Precinct in time to do
so. Id. at 7. She also claims no radio communication exists relaying the plate number of the
vehicle, as the officers claim. Pl.’s Reply to City-Defs. Reply 2–3. Farkarlun has offered a
reproduction from an internet blog of an email from MPD discussing the allegations addressed to
“All.” Richardson Decl. Ex. A at 25–26.
When Lanasa and Lee stopped the vehicle Farkarlun was riding in that night, a male
passenger admitted to having a small amount of marijuana. CAPRS Report 6. Lee searched him
and recovered two small individually wrapped baggies of suspected marijuana. CAPRS Report
6. Additionally, Lanasa observed an open can of alcohol. CAPRS Report 7. Lanasa searched
Farkarlun. Farkarlun Dep. 35:11–20. He removed her shoes and socks, looked in her mouth,
shook her clothing including her bra, and patted her body over her clothing. Farkarlun Dep.
35:14–19. Farkarlun claims that during Lanasa’s search he pulled down her pants leaving them
unbelted and unzipped. See Farkarlun Dep. 38:11–16. The shaking of her bra eventually broke
it. Farkarlun Dep. 37:2–5. Lanasa found no evidence of a crime.
Lanasa’s account of the same events varies greatly. To begin, Lanasa denies ever
searching Farkarlun at all. Lanasa Dep. 46:8. Next, Lanasa claims that Farkarlun was “moving
frantically” as he approached the car. CAPRS Report 7; see also Lanasa Dep. 37:9–39:21.
Lanasa also claims that he did not unzip or unbelt Farkarlun’s pants, but rather that her pants
5
were unzipped as she exited the vehicle. Lanasa Dep. 47:4–10.
Lanasa and Lee radioed for a female officer to assist them in searching Farkarlun. Lee
Dep. 28:15. Defendants Klimmek and Khazraeinazmpour, also MPD officers, arrived at the
scene. CAPRS Report 9. Khazraeinazmpour, a female officer, searched Farkarlun again but
more intrusively–using her gloved hand to search underneath Farkarlun’s bra and clothing along
Farkarlun’s waistline. Farkarlun Dep. 38:21–25, 111:24–112:2, 112:24–113:3.
Khazraeinazmpour did not reach into Farkarlun’s groin area. Farkarlun Dep. 112:3–4. This
search occurred on the sidewalk in downtown Minneapolis. Lee Dep. 29:14–18.
Khazraeinazmpour did not find any evidence. The officers’ supervisor, MPD Sergeant
Defendant Swalve, also arrived on the scene and authorized a strip search of Farkarlun based on
Lanasa’s version of events. CAPRS Report 9; see also Skarda Aff. Ex. 6 (“Swalve Dep.”)
10:12–15.
Farkarlun was then taken to the First Precinct. Farkarlun Dep. 39:2–3. Upon arriving,
the outside of her clothing and her pockets were searched again by a male officer. Farkarlun
Dep. 40:1–17. No strip search was done, however, because Khazraeinazmpour, the only female
officer present, had not been trained in strip searches, and Farkarlun indicated she would refuse
any further searching. CAPRS Report 9; Farkarlun Dep. 41:7. Farkarlun was taken to Hennepin
County Adult Detention Center (the “ADC”), where additional female officers, trained to
conduct strip searches, were present to assist Khazraeinazmpour. CAPRS Report 9.
6
Farkarlun arrived at the ADC around 2:20 a.m. Clark Decl. Ex. 3. Just prior to arriving,
Lanasa had filled out paperwork authorizing the detention of Farkarlun. Clark Decl. Ex. 1. The
paperwork specified that Farkarlun would be “tab-charged,” i.e. charged without a complaint
drafted by a Hennepin County prosecutor, for a municipal misdemeanor–loitering with intent to
buy or sell narcotics. Id. In addition, Farkarlun was to be detained overnight, purportedly to
prevent further criminal activity. Id.
Upon arriving at the ADC, Khazraeinazmpour remarked to Hennepin County deputies
that she did not know Farkarlun but knew “this year . . . [Farkarlun] has a lawsuit open, or
something like that.”5 Clark Decl. Ex. A, Sally Port Video6 2:20:51–53. Farkarlun now avers the
Hennepin County Defendants are “afraid” of this evidence. Pl.’s Mem. Filed in Opp. to Summ.
J. 12–13. However, Khazraeinazmpour’s report reflects that at the First Precinct Farkarlun
herself informed Khazraeinazmpour of the lawsuit, CAPRS Report 9, a fact Farkarlun did not
rebut, Farkarlun Dep. 41:14–17.
5
The Hennepin County Defendants dispute the substance of what Khazraeinazmpour said.
See Hennepin Cnty. Defs.’ Reply Mem. of Law [Docket No. 59] 4. However, after reviewing
the video, the Court finds that no reasonable juror could conclude that Khazraeinazmpour said
anything other than “I don’t know her, but this year . . . she has a lawsuit open or something like
that.” Video 2:20:49–53.
6
Clark Decl. Ex. A is a video entitled the “Gray Bin Video.” The video itself is divided into
three screens, entitled “Sally Port,” “Sally Port Wall,” and “Property Table.” Citations will refer
to the specific screen, e.g. “Sally Port Video,” “Sally Port Wall Video,” and “Property Table
Video.”
7
Defendants Hannig, Novotny, Sommerfeld, and Peterson were on duty at the ADC that
night. Clark Decl. Exs. 3, 4. Hannig and Novotny are female, Sommerfeld and Peterson are
male. See generally Sally Port Video. The “Sally Port ” is an open area of the ADC where
detainees are first brought and the admission process begins. ADC custom is to remove the
outer layers of clothing as processing begins. Beitz Aff. Ex. K (“Peterson Dep.”) 34:4–17.
Although pants are not considered an outer layer, suspects wearing gym trunks or boxers are
often required to remove their pants. Id. 43:19–25. In about ten percent of cases suspects are
reduced to their underwear. 2d Beitz Aff. [Docket No. 60] Ex. Q 36:11–14. When Farkarlun
arrived, the jailers can be heard remarking on how many layers of clothing Farkarlun was
wearing, and stating “Get her down to her boxers.” Clark Decl. Ex. 15; Clark Decl. Ex. A
(“Sally Port Video”) at 2:20:21–30, 2:20:14–33.
Defendant Hannig began the process of removing Farkarlun’s clothing by asking her if
she had any sharp objects. Sally Port Video at 2:21:42–43. Farkarlun responded “no,” and then
asked to see her lawyer. Sally Port Video at 2:21:43–46. Hannig then informed Farkarlun she
was going to be searched. Sally Port Video at 2:21:47. Farkarlun attempted to turn around and
was pressed against the wall by the deputies. Sally Port Video at 2:21:48–51. Farkarlun
continued to talk to the deputies, stating “Are you going to beat me up?” Sally Port Video at
2:21:51. She attempted to turn around again. Sally Port Video at 2:21:56 –57. The deputies
pressed her against the wall with more force this time. Sally Port Video at 2:21:57–22:06. She
8
repeatedly asked if she was under arrest and for what crime. Sally Port Video at 2:21:57–22:09.
The deputies then ordered her to sit on the floor. Sally Port Video at 2:22:09. She turned around
but did not sit down. Sally Port Video at 2:22:09–12. The deputies then used force to take her to
the floor. Sally Port Video at 2:22:13–18. With Farkarlun face down on the floor, the deputies
then began forcibly removing her clothing. Sally Port Video at 2:22:41–25:11. The female
deputies removed Farkarlun’s clothing while the male deputies held her. Sally Port Video at
2:22:36–25:09. At various times as her position was changed, she screamed in pain and
indicated her arms and wrists were hurting. Sally Port Video at 2:22:46–50, 2:22:54–23:12,
2:23:56–2. During the search process, her buttocks were briefly exposed. Sally Port Video at
2:22:16.
After her outer clothing was removed, she was left wearing boxer shorts, a short-sleeved
gray shirt, a white tee shirt, and a sports bra underneath her shirt. Compare Sally Port Video at
2:25:30 with Aff. of Steven Pondelis [Docket No. 38] Ex. A (property inventory sheet from
ADC). Farkarlun was frisked by Hannig, and Novotny brushed a metal detector over her
clothing around her body. 2:25:50–26:35. Novotny adjusted the boxer shorts, again exposing
the upper portion of Farkarlun’s buttocks briefly. Sally Port Video 2:26:09. Farkarlun then went
into a private bathroom, accompanied by Khazraeinazmpour, Hannig, and Novotny, all female
officers. Sally Port Video 2:26:53–27:24. In the private room, a visual strip search was
conducted. Farkarlun Dep. 66:10–68:9. No evidence was found.
9
Next, the female officers exited the bathroom, Farkarlun changed into a jail-issued
orange jumpsuit, Farkarlun was finger printed and was frisked manually and with a metal
detector again. Sally Port Video 2:28:49–35:53. Meanwhile, Deputy Hannig retrieved the bin
where Farkarlun’s removed clothing had been placed, Sally Port Video at 2:31:27–31, and then
took it to the intake counter of the property room, Sally Port Video at 2:35:13–31. With the
camera image frozen for approximately eighteen seconds, but audio still recording, property
room attendant Pondelis can be heard saying “Did you see this . . . ?” and Hannig can be heard
laughing and saying “Who did that? You’re so funny.” Property Table Video at 2:35:33–51.
Farkarlun then went to the property room counter, and the jailer told her he had found a bag of
suspected marijuana in the bin. Farkarlun Dep. 69:1–19. The suspected marijuana was turned
over to the MPD. CAPRS Report 8–9. Farkarlun sustained bruised wrists, aggravated an ankle
injury, and suffered headaches. Farkarlun Dep. 17:19–18:1, 62:11–64:20.
The next morning, Farkarlun was arraigned on her misdemeanor charge and was released
without bail. Beitz Aff. Ex. N. On November 4, 2009, Farkarlun pled not guilty. Id. On
December 23, 2009, the prosecutor assigned to the case declined to pursue criminal charges,
citing a lack of evidence to support a conviction. Clark Decl. Ex. 5. This civil action followed.
The Hennepin County Defendants (Hannig, Novotny, Sommerfeld, Peterson, and Hennepin
County are, collectively, the “Hennepin County Defendants”) and the Minneapolis Defendants
(Lanasa, Lee, Landmesser, Klimmek, Khazraeinazmpour, Swalve, and the City of Minneapolis
10
are, collectively, the “Minneapolis Defendants”) now move for summary judgment.
III. DISCUSSION
A. Summary Judgment Standard
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment shall
issue “if the movant shows that there is no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing Fed. R. Civ. P. 56(c));7
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (same); Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986) (same). On a motion for summary judgment, the Court views the evidence
in the light most favorable to the nonmoving party. Ludwig, 54 F.3d at 470. The nonmoving
party may not “rest on mere allegations or denials, but must demonstrate on the record the
existence of specific facts which create a genuine issue for trial.” Krenik v. Cnty. of Le Sueur,
47 F.3d 953, 957 (8th Cir. 1995).
B. 42 U.S.C. § 1983 Claims
Farkarlun asserts claims under 42 U.S.C. § 1983 against all Defendants.8 Am. Compl. ¶¶
31–37. Section 1983 “provides a remedy for deprivations of rights secured by the Constitution
7
The summary judgment standard was previously located in Rule 56(c).
8
In her brief, Farkarlun states that Defendants Klimmek and Landmesser may be voluntarily
dismissed from the suit. Pl.’s Mem. Filed in Opp. to Summ. J. 2. So ordered.
11
and laws of the United States when that deprivation takes place ‘under color of any statute,
ordinance, regulation, custom, or usage, of any State or Territory . . . .’” Lugar v. Edmondson
Oil Co., 457 U.S. 922, 924 (1982) (quoting 42 U.S.C. § 1983). Claims under § 1983 may be
made against a defendant in either an individual or official capacity. “Personal-capacity suits
seek to impose personal liability upon a government official for actions he takes under color of
state law.” Kentucky v. Graham, 473 U.S. 159, 165 (1985) (citation omitted).
“Official-capacity suits, in contrast, ‘generally represent only another way of pleading an action
against an entity of which an officer is an agent.’” Id. at 165–66 (citing Monell v. New York
City Dept. of Social Servs., 436 U.S. 658, 690 n.55 (1978)).
Farkarlun has sued Defendants Hannig, Novotny, Peterson, Sommerfeld, Lanasa, Lee,
Khazraeinazmpour, and Swalve in their individual capacities. “When a state actor is sued in her
individual capacity, she can plead an affirmative defense of qualified immunity.” Wagner v.
Jones, 664 F.3d 259, 260 (8th Cir. 2011) (citation omitted). At this procedural stage, “[i]n
analyzing qualified immunity, we ascertain (1) whether the facts alleged, construed in the light
most favorable to the nonmoving party, establish a violation of a constitutional right, and (2)
whether such right was clearly established so that a reasonable officer would have known her
actions were unlawful.” El-Ghazzawy v. Berthiaume, 636 F.3d 452, 456 (8th Cir. 2011)
(citation omitted). “To be clearly established, there need not be a case decided on all fours with
the present factual circumstances.” Wilson v. Lawrence Cnty., 260 F.3d 946, 951 (8th Cir.
12
2001) (citation omitted). “Rather, it need only be apparent from pre-existing law that the
conduct is unlawful.” Id. (citation omitted).
Additionally, Farkarlun has sued Hennepin County and the City of Minneapolis. Section
1983 claims may be asserted against municipalities and local governments where a policy or
custom of the municipality or local government is the moving force behind a constitutional
violation. Monell, 436 U.S. 694–95.
Farkarlun’s claims are numerous and broadly based. In summary, Farkarlun alleges that
her arrest was unconstitutional, each search of her person was unconstitutionally unreasonable,
the number and duration of searches of her person was unconstitutional, the force used in
effectuating the search of her in the Sally Port area was excessive and unreasonable, the strip
search of her was unreasonable, marijuana was planted on her by Hennepin County sheriff
deputies in violation of her equal protection and due process rights, and Hennepin County sheriff
deputies falsified reports. Each is addressed below.
1. Arrest of Farkarlun was Constitutional
The Fourth Amendment guarantees the right of citizens to “be secure in their persons . . .
against unreasonable searches and seizures.” U.S. Const. amend. IV. “The Fourth Amendment,
as applied to the States through the Fourteenth Amendment, requires that an officer have
probable cause before making a warrantless arrest.” Veatch v. Bartels Lutheran Home, 627 F.3d
1254, 1257 (8th Cir. 2010) (citation omitted). “Probable cause exists when a police officer has
13
reasonably trustworthy information that is sufficient to lead a person of reasonable caution to
believe that the suspect has committed or is committing a crime.” Id. (citations omitted). “In
determining whether probable cause exists to make a warrantless arrest, the court looks to the
totality of the circumstances . . . .” United States v. Blackmon, 662 F.3d 981, 985 (8th Cir.
2011) (citations omitted). “In determining probable cause, law enforcement officers may draw
inferences based upon their experience.” United States v. Cortez-Palomino, 438 F.3d 910, 913
(8th Cir. 2006). Police, however, may detain criminal suspects for investigation with less than
probable cause if officers have a reasonable suspicion that a crime is being or has been
committed. Blackmon, 662 F.3d at 985.
Under the totality of the circumstances, Lanasa and Lee had probable cause to arrest
Farkarlun when they removed her from the vehicle. At that time, they had seen, via video
camera, someone they believed to be Farkarlun drop a small object on the ground and make a
hand-to-hand transaction with someone that had picked up the object. Such activity raises
suspicions of drug dealing. Furthermore, a co-passenger in the vehicle admitted to being in
possession of marijuana. A search of that passenger yielded several “bindles” of
marijuana–packaging consistent with sale rather than mere possession. While the Fourth
Amendment does not permit guilt by association, see Ybarra v. Illinois, 444 U.S. 85, 91 (1979)
(“[A] person’s mere propinquity to others independently suspected of criminal activity does not .
. . give rise to probable cause . . . .”), it does allow police officers to use common sense and infer
14
a common enterprise among co-passengers of a small automobile where drug dealing is likely.
See Maryland v. Pringle, 540 U.S. 366, 373 (2003) (ruling it reasonable to infer common
enterprise among three passengers of vehicle because quantity of drugs and cash in vehicle
indicated likelihood of drug dealing which is “an enterprise to which a deal would be unlikely to
admit an innocent person”). Given this collection of evidence, at that point, a person of
reasonable caution could believe that Farkarlun was selling marijuana in concert with the male
passenger.
Farkarlun attempts to avoid this result by arguing that she was under arrest the moment
the vehicle was stopped. See Pl.’s Reply to City-Defs.’ Reply [Docket No. 64] 2. To support
her argument, she cites Lanasa’s deposition testimony that he stopped the vehicle with the intent
to make an arrest. See Lanasa Dep. 43:15–44:24 (stating that Lanasa stopped the vehicle in
order to arrest Farkarlun but noting he did not remember exactly when he informed her she was
under arrest). Indeed, were an arrest made based solely on the observation of the police of a
single incident of suspicious activity, probable cause may well have been lacking. See, e.g.,
State v. Connie, No. A09-194, 2009 WL 4910158 (Minn. Ct. App. Dec. 22, 2009) (holding that
police officers did not have probable cause to arrest suspect for loitering with intent to distribute
narcotics after observing suspect for five minutes and seeing him engage in a single hand-tohand transfer of a small object); see also United States v. Everroad, 704 F.2d 403, 405 (8th Cir.
1983) (“[P]robable cause requires more than mere suspicion.”). However, Lanasa’s subjective
15
state of mind is immaterial. See Whren v. United States, 517 U.S. 806, 813 (1996) (“Subjective
intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”); see also
United States v. Bloomfield, 40 F.3d 910, 916 (8th Cir. 1994) (“The subjective intent of the
seizing officer is irrelevant if not communicated to the suspect.”).
An arrest and an investigatory stop are both seizures under the Fourth Amendment.
Bloomfield, 40 F.3d at 916 (quoting United States v. Miller, 974 F.3d 953, 956 (8th Cir. 1992)).
The line between arrest, which must be supported by probable cause, and detention, which need
only be supported by reasonable suspicion, is often vague. Miller, 974 F.2d at 957 (“There is no
bright line of demarcation between investigative stops and arrests.”) (citations omitted). Factors
to consider in distinguishing between investigative stops and arrests include the duration of
detention, use of force or physical restraint–such as handcuffs or placement in police car–or
transporting the suspect to another location. Bloomfield, 40 F.3d at 917. An investigative
detention must be limited to the least intrusive means reasonably available to verify or dispel an
officer’s suspicion in a short amount of time. Id. at 916 (quotations omitted).
Under Whren, the question is whether Lanasa and Lee’s actions, viewed objectively,
were reasonable. 517 U.S. at 811–13. It is reasonable, and constitutional, to stop and investigate
a vehicle occupied by persons suspected of dealing drugs. See United States v. Bell, 480 F.3d
860, 863 (8th Cir. 2007) (“The Fourth Amendment permits an investigative stop of a vehicle if
officers have a reasonable suspicion the vehicle or its occupants are involved in criminal
16
activity.”). When the vehicle was first stopped and before the marijuana was found, Farkarlun
was not under arrest. She was not taken out of the vehicle. Farkarlun Dep. 33:13–35:12
(testifying that driver and male passenger were removed out of her sight prior to Farkarlun being
asked to exit vehicle). She was not yet placed in handcuffs. Id. She was not yet told she was
under arrest. Id. She was under arrest only after her male co-passenger was discovered to have
on his person marijuana packaged for individual retail. At that point, Lanasa and Lee had
probable cause to arrest Farkarlun, and therefore the arrest was reasonable. Lanasa and Lee are
entitled to summary judgment with respect to any claim of unreasonable seizure.
Farkarlun’s argument that no probable cause existed because loitering with intent to
distribute, the crime for which she was ultimately charged, requires multiple acts is unavailing.
Section 385.50 of the Minneapolis Municipal Code makes it a misdemeanor to “loiter on the
streets or in a public place or in a place open to the public with intent to solicit for the purposes
of prostitution, illegal narcotic sale, distribution, purchase or possession, or any other act
prohibited by law.” Minneapolis, Minn., Code of Ordinances § 385.50(a). The ordinance
further instructs:
Among the circumstances which may be considered in determining whether a
person intends to loiter for the purpose of engaging in distributing illegal
narcotics are whether a person: (1) Repeatedly beckons to, stops or attempts to
stop, or engages passersby in conversation, (2) Repeatedly stops or attempts to
stop motor vehicle operators . . . (3) acts as a look-out, (4) transfers small objects
or packages of currency or any other thing of value in a furtive fashion which
would lead an observer to believe or ascertain that a drug transaction has or is
about to occur.
17
Id. § 385.50(d). Farkarlun argues the ordinance requires that Lanasa and Lee view multiple
exchanges of small objects, rather than a single exchange of a single small object, to establish
probable cause for a violation of the ordinance. As written, loitering with intent has the
following elements (1) loitering (2) in a public place with (3) intent to solicit for sale of narcotics
or prostitution. It is not a statutory requirement that multiple small objects, or even any objects,
be transferred; the element is merely the intent to sell narcotics or engage in prostitution.
Repeated beckoning or transfer of small objects are merely examples of circumstances that may
be considered. Id.
On this record, Lanasa and Lee viewed on a surveillance camera someone walking
without apparent purpose and then dropping an object in an area of downtown Minneapolis
without any brick-and-mortar businesses, which raised suspicion to believe that person was
loitering in a public place. Then, that same person seemly made a suspicious hand-to-hand
transaction with another, who had retrieved the dropped object. The officers were radioed a
description and license plate number of the vehicle that person entered.9 Lanasa and Lee stopped
9
Farkarlun argues that the radio communication does not exist. Hennepin County raised the
issue of Lanasa and Lee obtaining information regarding the vehicle over radio in their opening
brief. Hennepin Cnty. Defs.’ Mem. of Law [Docket No. 37] 2. Farkarlun did not raise this
rebuttal argument until her reply brief, and therefore it will not be considered. See Berbig v.
Sears Roebuck & Co., 568 F. Supp. 2d 1033, 1040 n.10 (D. Minn. 2008) (“Generally, the Court
does not consider arguments raised for the first time in a Reply.”). Even if it were considered,
the evidence offered in support by Farkarlun would be excluded for lack of foundation. To show
no radio communication exists Farkarlun offers an audio recording of radio communications
from the Minneapolis Emergency Communication Center on September 30, 2009. 2d Decl. of
18
the vehicle. In the vehicle, they found Farkarlun, who they believed to be the person they had
seen on the surveillance cameras, along with a male in possession of marijuana packaged for
individual sale. Under the circumstances, the cumulative value of evidence gave the officers
probable cause to believe that Farkarlun was loitering with the specific intent to solicit the sale
of narcotics.
Farkarlun further avers Lanasa and Lee knew of, and were in part motivated by, the rape
allegations she made against Officers Gillies and Barnes. Even if the evidence did support that
contention, it is immaterial: the subjective motivation of the officers does not matter if their
actions are constitutional.
Farkarlun also seems to suggest as an alternative that Lanasa, Lee, and Officer Jones
(who was working the surveillance camera) never saw anyone drop anything in a suspicious
manner that night. Assuming, arguendo, that Lanasa and Lee knew that Farkarlun had accused
Barnes and Gillies of rape, no evidence exists from which to infer that Lanasa and Lee fabricated
criminal activity on Hennepin Avenue in order to retaliate against her. Of record are various
internet blog postings concerning the allegations and posts from the Minneapolis Star Tribune.
As explained below, these are inadmissible as evidence at trial, but even if they were admissible,
none of this material includes a photograph of Farkarlun. Farkarlun had no previous interaction
Jill Clark, Esq. [Docket No. 65] ¶ 2. That evidence is only probative if the radio communication
to Lanasa and Lee should have been there, a proposition for which no evidence has been offered.
To the contrary, the evidence of record is that Lanasa and Lee were in communication with the
First Precinct and not the Minneapolis Emergency Communication Center.
19
with either Lanasa or Lee. Farkarlun Dep. 27:17–23 (no prior contact with Lee); 29:23–30:3 (no
recollection of prior contact with Lanasa). Furthermore, the vehicle in which Farkarlun was
riding is not hers and is not registered to her. CAPRS Report 4. Therefore, even if Lanasa and
Lee knew that someone named Trisha Farkarlun had accused Barnes and Gillies of raping her,
there is no basis to suggest that Lanasa and Lee recognized her and then targeted the vehicle in
which she was riding for the purpose of retaliating against her.
More fundamentally, no admissible evidence exists from which to infer that either
Lanasa or Lee knew anything of the rape allegations. Rules of evidence have been developed
over centuries to ensure that juries in our judicial system consider, and base their decisions on,
only evidence that is reliable. See 1 McCormick on Evidence (6th ed.) § 10 (“The common law
system of proof is exacting in its insistence on the most reliable sources of information. This
insistence is reflected in the hearsay rule, the documentary originals doctrine, and the opinion
rule.”). The internet blog postings are inadmissible because they lack foundation, are irrelevant,
and contain hearsay.
With respect to the pages of internet blogs and Star Tribune articles, they are irrelevant
because no foundation has been offered from which to infer that Lanasa or Lee ever saw the
posting or articles. No evidence has been offered that Lanasa or Lee read the blogs from which
pages were reproduced. No evidence has been offered that Lanasa or Lee read the Star Tribune.
Therefore, the evidence offered by Farkarlun is not probative in any way of Lanasa and Lee’s
20
knowledge of rape allegations, and is inadmissible. See Fed. R. Evid. 401, 402 (defining
relevance and prohibiting admission of irrelevant evidence). Furthermore, nothing has been
offered from which to infer that the portions of Star Tribune articles reproduced on the blog were
in fact accurately reproduced. Evidence must be authenticated or identified, i.e. the proponent of
the evidence be able to establish the evidence is what its proponent claims it is. Fed. R. Evid.
901. An anonymous internet blogger cannot verify the authenticity of the articles through an
unsworn, out-of-court statement. Such a statement is hearsay if offered to authenticate the
source of the article. See Fed. R. Evid. 801(c) (defining hearsay).
Farkarlun also seeks to admit a posting from an internet blog including the substance of
an email from MPD Sergeant Jesse Garcia (“Garcia”). That email is also inadmissible. As with
the other blog postings, it lacks any relevancy because no evidence suggests Lanasa or Lee ever
saw the email. That the email is addressed to “All” does not mean that the email was sent to
every single person Garcia may know. Nearly any email that is sent to multiple recipients may
be addressed to “All.” Only knowledge of the recipients will elucidate what group or class
constitutes “All.” Here, the recipients of the email are not disclosed and no evidence links the
“All” to either Lanasa or Lee. Furthermore, the email lacks foundation. Nothing suggests it was
accurately reproduced or that it was in fact written by Garcia. To the extent Farkarlun relies on
the representations of an anonymous blogger as the sole foundation to establish the email was
written by Garcia, the statement is hearsay and inadmissible. Fundamental to our judicial system
21
is that liability or guilt will be determined only through the use of relevant and reliable evidence.
The blog postings offered by Farkarlun are not reliable or relevant to establish whether Lanasa or
Lee knew of Farkarlun’s rape allegations.
Because they are inadmissible, the blog postings, including the newspaper articles and
the email, may not be considered as evidence. See Firemen’s Fund Ins. Co. v. Thien, 8 F.3d
1307, 1310 (8th Cir. 1993) (“The district court must base its determination regarding the
presence or absence of a material issue of factual dispute on evidence that will be admissible at
trial.”) (citations omitted). The only remaining evidence is Lanasa’s admission that he knows
who Gillies is, and Lee’s admission that he previously knew Barnes. Both Lanasa and Lee deny
knowing anything about the rape allegations. From that evidence, it is a leap in logic to believe
Lanasa or Lee knew of the allegations. More importantly, no reasonable juror could infer that
Lanasa and Lee recognized Farkarlun on the street, conspired to fabricate a story about seeing
her engage in suspicious activity, and then conspired with Officer Jones to radio the plate
number of the car Farkarlun boarded, all based solely upon Lanasa’s admission that he knows of
Gillies and Lee’s admission that he once knew Barnes. That chain of inferences is far too
attenuated for a reasonable jury to accept.
Probable cause pivots here on whether Lanasa and Lee actually saw suspicious activity
on Hennepin Avenue. It is undisputed that they believed they stopped the vehicle of their
suspect, and that Farkarlun’s co-passenger was in possession of marijuana packaged for
22
individual sale. No genuine issue exists regarding whether Lanasa and Lee saw the activity they
claim. Farkarlun has offered no evidence from which to reasonably infer that they did not, and
the burden of proof is hers. See Der v. Connolly, – F.3d –, 2012 WL 204558, at *5–6 (8th Cir.
2012) (holding plaintiff bears ultimate burden of proof in § 1983 actions premised on Fourth
Amendment violations).
A single remaining issue, not briefed by the parties, warrants mentioning for the sake of
completeness. Under Minnesota law, a police officer may make an arrest for a misdemeanor
committed or attempted “in the presence” of a peace officer. Minn. Stat. § 629.34, subd. 1(c).
Minnesota’s rule was also the rule at common law, and may be a requirement of the Fourth
Amendment. See Virginia v. Moore, 553 U.S. 164, 171 (2008) (“[W]hen an officer has
probable cause to believe a person committed even a minor crime in his presence . . . [t]he arrest
is constitutionally reasonable.”) (citation omitted). Some courts have held that observing
activity over a video camera does not satisfy the “in the presence” requirement. E.g., City of
Everett v. Rhodes, No. 48098-7-I, 2002 WL 31863477, at *1–3 (Wash. Ct. App. Dec. 23, 2002).
Minnesota courts, however, have not addressed this issue. Regardless, Farkarlun seeks relief
under the laws of the United States only, not the laws of Minnesota. See 42 U.S.C. § 1983. It is
an unresolved question of whether the Fourth Amendment requires that a crime be committed in
the presence of an officer for a valid warrantless misdemeanor arrest to occur, and therefore the
officers are entitled to qualified immunity on that issue. See Veatch v. Bartels Lutheran Home,
23
627 F.3d 1254, 1258–59 (8th Cir. 2010) (noting that Supreme Court has never decided whether
Fourth Amendment permits warrantless arrest for misdemeanor committed outside presence of
arresting officer, also noting that prevailing view of other circuits is that it does not, and stating
that any “in the presence” requirement is “far from clearly established”).
2. Lanasa is Entitled to Qualified Immunity for Alleged Public Street Search
The second basis Farkarlun identifies for her claims is the first search of her person,
which she claims was conducted by Lanasa on the street. A search may be made without a
warrant incident to a custodial arrest. Curd v. City Court of Judsonia, Ark., 141 F.3d 839, 842
(8th Cir. 1998). A search incident to arrest, however, is not unlimited in scope. See id. (noting
that search must be contemporaneous with arrest and within area of arrestee’s immediate
control). For example, “the interests supporting a search incident to arrest would hardly justify
disrobing an arrestee on the street . . . .” Illinois v. Lafayette, 462 U.S. 640, 645 (1983). Partial
disrobing is also disfavored, but may be permissible if a suspect’s private areas are not exposed
and officers take “steps commensurate with the circumstances” to diminish the potential
invasion of a suspect’s privacy. United States v. Williams, 477 F.3d 974, 977 (8th Cir. 2007).
Searching of a suspect by an officer of the opposite sex that involves intimate touching has also
been held unreasonable. See Byrd v. Maricopa Cnty. Sheriff’s Dept., 629 F.3d 1135, 1142 (9th
Cir. 2011) (ruling search conducted by female corrections officer that involved touching male
inmate’s genitals through boxer shorts was unreasonable); see also Amaechi v. West, 237 F.3d
24
356, 361–62 (4th Cir. 2001) (holding search unreasonable where male officer searched female
misdemeanant suspect over bathrobe in sexually invasive manner).
Although Lanasa denies ever conducting any search of Farkarlun’s person, all factual
disputes must be construed in favor of Farkarlun who claims Lanasa, a male officer, unbelted,
unzipped, and pulled her pants down, exposing her underwear, in the middle of a public street,
taking no steps to protect her privacy. Lanasa felt around her waistline, looked into her mouth,
reached into both her front and back pockets, rubbed the front of her pants, and removed her
shoes and socks. Farkarlun Dep. 106:16–107–17 (describing scope of search). She claims her
bra was shaken so violently that it broke. If Farkarlun’s testimony is to believed, a search
including pulling a suspect’s pants down in public and shaking a bra so hard it breaks is
unreasonable, particularly in light of the search being of a female by a male. For his part, Lanasa
claims he never searched Farkarlun and her pants were down only because she had them
unzipped in the car before as the officers approached the vehicle. The factual scenario presents
the familiar “he said–she said” dispute usually best resolved by a jury.
Here, however, Lanasa, as a police officer, is entitled to qualified immunity if the search
occurred as described by Farkarlun. The scope of a search incident to arrest includes any place
within the control of the suspect where weapons, instruments of escape, or evidence may be
located. Chimel v. California, 395 U.S. 752, 763 (1969). Therefore, a reasonable officer in
Lanasa’s position could have believed that reaching into Farkarlun’s pockets, shaking her bra,
25
and removing her shoes and socks was reasonable. Small bindles of marijuana are easily
secreted in the clothing areas Lanasa is claimed to have searched. The search, although on a
public street, was conducted around 1:00 or 1:30 a.m. on a Wednesday morning, and there is no
evidence of any uninvolved bystanders observing the incident. The cross-gender aspects
increased the intrusion on Farkarlun, but cross-gender searches are not per se unreasonable. A
reasonable officer in Lanasa’s position could have believed a cross-gender search to be
permitted, particularly because the intrusiveness of the search was well below that found in Byrd
and Amaechi. If Farkarlun’s pants were lowered without any measures to protect her privacy,
the Court is troubled by the invasion, especially if Farkarlun’s buttocks were briefly exposed.10
However, the evidence of record is that any lowering of the pants was an accidental effect of the
search, not an intentional result. See Farkarlun Dep. 107:15-17 (“Q: . . . What was he doing
when your pants came down? A: He was searching me, searching my pockets.”). Because there
is no evidence Lanasa intended to lower Farkarlun’s pants, he could not have taken any steps to
protect her privacy. As a practical matter, he could not have known that additional steps to
protect her privacy would be required. Therefore, he is entitled to qualified immunity and
summary judgment.
10
The record on exposure, if any, is unclear. At her deposition Farkarlun testified only that
she told Lanasa that her “butt was showing” and not that her buttocks were actually exposed.
See Farkarlun Dep. 38:7-8.
26
3. Khazraeinazmpour is entitled to Qualified Immunity for Second Search on
Street
The next basis for Farkarlun’s claims is the second search on the street conducted by
Khazraeinazmpour, the female officer called to the scene. Whether a search is reasonable under
the Fourth Amendment requires a balancing of the scope of the intrusion, the manner in which it
is conducted, the justification for initiating the search, and the place in which it is conducted.
Bell v. Wolfish, 441 U.S. 520, 559 (1979). In conducting that balancing, “reach-in” searches
that do not display the suspect’s genitals to onlookers are reasonable if police take “steps
commensurate with the circumstances” to diminish the potential invasion of a suspect’s privacy.
Williams, 477 F.3d at 977. In Williams, a pat-down search revealed something inside a
suspect’s pants. Id. at 975. Police then transported the suspect to a police building parking lot,
in a residential area, surrounded by a building, brick wall, and chain link fence. Id. A police
officer wearing a latex glove then reached into the suspect’s underwear, near his genitals, and
removed contraband. Id. The search was upheld, the Eighth Circuit reasoned that officers had
taken sufficient precautions to protect Williams’ privacy and no evidence suggested that an
observer would have seen private areas of Williams’ body or seen any contact between
Williams’ genitals and the officer’s gloved hand. Id. at 977.
Khazraeinazmpour is entitled to qualified immunity because her search of Farkarlun did
not violate any clearly established law. When Khazraeinazmpour arrived on the scene, Lee
informed her that he and Lanasa believed Farkarlun was secreting drugs on her person. CAPRS
27
Report 9. She had no reason to doubt that assertion; in fact, Khazraeinazmpour observed
Farkarlun’s pants were already unzipped. Id. She was entitled to rely on Lee and Lanasa’s
representations. See Doran v. Eckold, 409 F.3d 958, 965 (8th Cir. 2005) (noting that it is a
“settled principle” that law enforcement officers may rely on information provided by other
officers so long as reliance is reasonable).
Construing all factual disputes in Farkarlun’s favor, in light of the circumstances, an
officer in Khazraeinazmpour’s position could have believed the search to be lawful. A search
incident to arrest is limited in scope to searches for weapons, evidence, and instruments of
escape. Chimel, 395 U.S. at 763. Suspects in possession of drugs or other contraband often
secret them in the elastic bands of undergarments. See, e.g., United States v. Moore, No. 1:07
CR 134, 2007 WL 2115004, at *1 (N.D. Ohio July 20, 2007) (noting bags of crack cocaine were
discovered in defendant’s waistband area between long johns and underwear). Therefore, an
officer in Khazraeinazmpour’s position could have believed searching Farkarlun’s waistband
was reasonable and reaching into her bra was reasonable, given that Khazraeinazmpour did not
contact or expose Farkarlun’s breasts or genitals.
In light of Williams, discussed above, that no steps were taken to protect Farkarlun’s
privacy is concerning, but does not defeat qualified immunity. To the extent
Khazraeinazmpour’s search was a “reach-in” search requiring “steps commensurate with the
circumstances” to diminish potential invasions of privacy, it was not clearly established law to
28
an officer in Khazraeinazmpour’s position. Cases discussing “reach-in” searches, such as
Williams, have focused on two factors, neither of which was present here. First, courts have
focused on intimate contact between an officer’s hand and the suspect’s genitals. See Williams,
477 F.3d at 976 (rejecting per se rule that physical contact with genitals is unreasonable search);
United States v. Edwards, – F.3d –, 2011 WL 6825360, at *6–7 (4th Cir. 2011) (holding search
unreasonable where officer used knife to cut bag of drugs off of suspect’s penis); Byrd, 629 F.3d
at 1142 (touching male inmates genitals through clothing by female officer held
unconstitutional). Second, courts have focused on the visual inspection of a suspect’s private
areas and the risk of exposure to others. Williams, 477 F.3d at 977 (holding search reasonable
because police took steps to protect privacy and there was no evidence that an onlooker would
have seen private areas or contact between officer and suspect’s private areas); Campbell v.
Miller, 499 F.3d 711, 715–18 (7th Cir. 2007) (holding search unreasonable where police undid
suspect’s belt buckle, pulled pants partially down, and visually inspected buttocks for contraband
in open backyard); Foster v. City of Oakland, 675 F. Supp. 2d 992, 1004 (N.D. Cal. 2009)
(ruling search was unreasonable where police briefly pulled suspect’s pants away from body and
looked into them with flashlight in middle of street). Here, however, Khazraeinazmpour did not
directly contact any of Farkarlun’s private areas. Nor was her search for the purpose of visual
inspection. Notably, Khazraeinazmpour did not fully reach into Farkarlun’s undergarments. A
reasonable officer in Khazraeinazmpour’s position could have believed that the search was less
29
intrusive than the search in Williams and related cases and did not require additional steps to
protect privacy.
While it is concerning that a portion of Farkarlun’s buttocks may have been briefly
exposed, see Farkarlun Dep. 114:15–16 (“I think like a little bit of it [Farkarlun’s buttocks] was
[exposed] while she was searching me and my pants kept falling down.”), that concern does not
defeat qualified immunity. No evidence suggests any person, including Khazraeinazmpour, saw
the exposure. Nothing suggests that Khazraeinazmpour searched Farkarlun in a manner that
would have intentionally caused Farkarlun’s buttocks to be exposed. To the contrary, if
Farkarlun’s buttocks were exposed, it was due to her pants being unzipped and falling down, not
the search. There is no evidence Khazraeinazmpour unzipped Farkarlun’s pants. See CAPRS
Report 9 (pants unzipped upon Khazraeinazmpour’s arrival). Objectively evaluated, an officer
in Khazraeinazmpour’s position could have believed such a search was reasonable in light of its
justification and the means used. Qualified immunity is appropriate and Khazraeinazmpour is
entitled to summary judgment for her search of Farkarlun.
4. Search at First Precinct Was Reasonable
Farkarlun was searched yet again by an MPD officer upon arriving at the First Precinct.
Farkarlun avers the repetitive searching and the long duration of searching render this search
unconstitutional. However, continuing searches over a period of time with the same factual
basis for probable cause are not per se unconstitutional or unreasonable. Cf. United States v.
30
Carter, 854 F.2d 1102, 1107 (8th Cir. 1988) (holding “return search” conducted several hours
after first search did not violate Fourth Amendment). Without precluding the possibility that
some number of searches or length of searches may eventually rise to the level of a
constitutional violation, Farkarlun has not identified any authority that the continued searches
were excessive nor articulated another reason why the search at the First Precinct was
unreasonable. Therefore, to the extent that continuing the search at the First Precinct was
unconstitutional, that constitutional norm has not yet been clearly established, and the searching
officer is entitled to qualified immunity. The Minneapolis Defendants are entitled to summary
judgment on this claim.
5. Swalve’s Authorization of the Strip Search was Reasonable
At the First Precinct, Sergeant Swalve authorized a strip search of Farkarlun. A strip
search of an arrestee, such as Farkarlun, is constitutionally permissible when there is reasonable
suspicion that a suspect is concealing contraband on her person. See Jones v. Edwards, 770 F.3d
739, 741–42 (8th Cir. 1985). Swalve is entitled to qualified immunity.
It is undisputed that Swalve authorized the search based on the information provided to
him by Lanasa. Swalve is entitled to rely on information provided by others in law enforcement
so long as the reliance is reasonable. Doran, 409 F.3d at 965; see Kraushaar v. Flanigan, 45 F.3d
1040, 1046 (7th Cir. 1995) (finding “nothing improper” about procedure of jailer performing
strip search based solely on representations of arresting police officer). Lanasa informed Swalve
31
that he had seen Farkarlun making a suspicious transaction, Farkarlun’s co-passenger had
marijuana packaged for individual sale, Farkarlun had been moving frantically when the vehicle
was stopped, and her pants were unbuttoned and unzipped. CAPRS Report 7–8. Given that
information, Swalve had a reasonable suspicion Farkarlun was concealing contraband.
Farkarlun has adduced no evidence to demonstrate Swalve’s reliance on Lanasa’s version of
events was somehow unreasonable. Swalve is entitled to summary judgment.
Tacitly recognizing the likelihood of this outcome, Farkarlun has advanced a novel legal
theory to avoid it. She argues that law enforcement should not be able to sanitize its action by
having one officer fabricate facts rising to probable cause or reasonable suspicion, report them to
a supervisor, and then have a supervisor authorize the action. See Am. Compl. ¶ 9f (alleging that
police officers should not be allowed to manufacture a “empty head white heart” defense by
seeking authorization for acts based on fabricated factual basis). The Court declines to adopt
Farkarlun’s legal theory and extend the law in this way because it is wholly unnecessary.
Individual capacity suits seek to impose personal liability on a state actor. Wagner v.
Jones, 664 F.3d 259, 268 (8th Cir. 2011). Therefore, liability under § 1983 requires personal
wrongdoing. See Wilson v. Northcutt, 441 F.3d 586, 591 (8th Cir. 2006) (“Liability for damages
for a federal constitutional tort is personal, so each defendant's conduct must be independently
assessed.”). Because of that tenet, it would be unjust for Swalve to be held personally liable for
relying on information upon which he was entitled to rely.
32
However, that is not to say liability will not attach somewhere if authorization was based
on fabricated or falsified evidence. Fabricating evidence or falsifying records may constitute a
due process violation. McGhee v. Pottawattamie Cnty., 547 F.3d 922, 932 (8th Cir. 2008).
Under § 1983, damages are available for due process violation subject to traditional notions of
causation. See Carey v. Piphus, 435 U.S. 247, 266–67 (1978) (looking to common law of torts
to determine damages for § 1983 claim). Farkarlun, however, has not advanced any other theory
of liability for her strip search other than to place culpability with Swalve. Succinctly put, no
evidence exists from which to infer Swalve is culpable. Farkarlun cannot rest her case on
blanket allegations of wrongdoing. It is her burden to prove the essential elements of her case.
Summary judgment as it relates to this theory is granted.
6. Visual Strip Search
Visual strip searches are not prohibited by the Constitution so long as they are
reasonable. See, e.g., Wolfish, 441 U.S. at 558–59 (upholding visual strip searches of inmates).
Here, Farkarlun avers the search in the ADC bathroom, a routine visual strip search, was
unreasonable because Novotny and Hannig did not follow Hennepin County procedure and it
was for an improper purpose. Violations of Hennepin County procedures cannot form the basis
for a § 1983 claim; § 1983 vindicates only federal rights. Doe v. Gooden, 214 F.3d 952, 955
(8th Cir. 2000) (citing Ebmeier v. Stump, 70 F.3d 1012, 1013 (8th Cir. 1995)). Furthermore, no
improper purpose exists. It is undisputed that Farkarlun was subject to a visual strip search
33
because she was being admitted to the ADC on a tab-charge and MPD officers, particularly
Lanasa, had represented that they were sure Farkarlun was concealing drugs on her person. All
officers involved in the strip search–Khazraeinazmpour, Hannig,11 and Novotny–were entitled to
rely on the information if reliance was reasonable. Doran, 409 F.3d at 965. Their reliance was
not rendered unreasonable by the unsurprising fact that a criminal suspect denied wrongdoing;
officers are not required to conduct “mini-trials” on the scene. Cf. Borgman v. Kedley, 646 F.3d
518, 523 (8th Cir. 2011) (noting that officers are not required to conduct “mini-trial” before
making arrest). The purpose of Hannig and Novotny, women jailers who were trained in strip
searches, was also to assist Khazraeinazmpour, who stated she was not trained to conduct strip
searches and was unsure how to do it. Sally Port Video 2:20:58–21:14 Farkarlun has offered no
authority that there is anything improper about cross-agency cooperation. Cross-agency
cooperation is reasonable, particularly where, as here, cooperation was to protect officer safety
by increasing the number of trained law enforcement officers present. Therefore, Defendants are
entitled to summary judgment on this theory.
11
Farkarlun suggests that because Hannig was not nearby when Lanasa and
Khazraeinazmpour were discussing their suspicions, Hannig was never told Farkarlun was
concealing, and therefore had no information on which to rely. Pl.’s Mem. Filed in Opp. to
Summ. J. 34. This argument is speculation, which is not properly considered on summary
judgment. Bloom v. Metro Heart Grp. of St. Louis, Inc., 440 F.3d 1025, 1028 (8th Cir. 2006).
Furthermore, Hannig was present when her supervisor, Peterson, ordered a strip search. Sally
Port Video 2:26:30–2:27:00. At a minimum, Hannig is entitled to qualified immunity because a
reasonable officer would have believed she could conduct a strip search in light of Peterson’s
orders.
34
7. Individual Hennepin County Defendants are Entitled to Qualified Immunity for
Sally Port Search and Take Down
From the First Precinct, Farkarlun was taken to the ADC where Defendants Hannig,
Sommerfeld, Novotny, and Peterson forced her to the ground and forcibly removed her outer
layers of clothing. Farkarlun avers the takedown was an excessive use of force and that
removing her clothing was an unreasonable search. Hannig, Sommerfeld, Novotny, and
Peterson are entitled to qualified immunity on both accounts.
The timing of Farkarlun’s incident–September 2009–is significant. For some fifteen
years prior to June 2011, it was an “open question” in the Eighth Circuit whether excessive force
claims required some minimum level of injury. Chambers v. Pennycook, 641 F.3d 989, 904 (8th
Cir. 2011). In Chambers, the Eighth Circuit clarified that a use of force may be unreasonable,
and unconstitutional, even if it causes only de minimis injury. Id. at 906. Given the state of law
prior to Chambers, however, a reasonable officer could have believed that a use of force would
be constitutional so long as no more than de minimis injury occurred, and therefore an officer is
entitled to qualified immunity for uses of force prior to Chambers that in fact caused only de
minimis injuries. Id. at 908–09.
The officers here are entitled to qualified immunity because Farkarlun sustained only de
minimis injury as a matter of law. Although she vociferously complained of pain on the
recording, the evidence of record is that Farkarlun sustained some bruising on her wrists,
aggravated a prior ankle sprain, and suffered headaches. These are they type of injuries that
35
have been classified as de minimis as a matter of law. See Wertish v. Krueger, 433 F.3d 1062,
1067 (8th Cir. 2006) (noting that minor scrapes and bruises and aggravation of prior shoulder
condition were de minimis injuries); Foster v. Metro. Airports Comm’n, 914 F.2d 1076, 1081
(8th Cir. 1990) (holding that allegations that handcuffs were applied too tightly could not support
excessive force claim without medical records of long-term injury or other evidence of
permanent injury).
Farkarlun further avers the removal of the outer layers of her clothing was an
unreasonable search. “The test of reasonableness under the Fourth Amendment is not capable of
precise definition or mechanical application.” Wolfish, 441 U.S. at 559. Rather, courts “must
consider the scope of the particular intrusion, the manner in which it is conducted, the
justification for initiating it, and the place in which it is conducted.” Id. (citations omitted).
The scope of the intrusion here is that Farkarlun’s clothing was removed until she was
only wearing a pair of boxers, bra, short-sleeved button-up shirt, and tee shirt. She was then patsearched and frisked with a metal detector. The manner of the search was through forcible
removal of the outer layers of Farkarlun’s clothing. The justification was to find contraband
believed to be secreted both as evidence and to protect the security of the ADC, where she was
to be detained overnight. The place was the Sally Port of the ADC.
Without deciding the constitutionality of the search, the officers are entitled to qualified
immunity. The forcible manner of the search was occasioned by Farkarlun not cooperating and
36
stating she would not consent to be searched. There is nothing inherently unreasonable about a
male officer using force on a female suspect.
The scope of the intrusion combined with the place, however, is more concerning.
Farkarlun was reduced to wearing only boxer shorts to cover her lower body. Such minimal
covering enhanced the risk that accidental exposure of private areas could occur–and indeed the
upper portion of her buttocks were briefly exposed. Because the Sally Port of the jail is quasipublic, officers of both genders are present and able to view any exposure of private body parts,
and inmates of both genders are in adjacent rooms. Nonetheless, the officers are entitled to
qualified immunity because it would not have been clear to a reasonable officer that they could
not require her to remove clothing down to her boxer shorts.
Cases addressing the reasonableness of searches involving undergarments typically focus
on cases where undergarments are intentionally removed and private areas are necessarily
exposed for the purposes of visual inspection. This was not the case here. Rather, Farkarlun’s
outer clothing was removed to increase the efficacy of the pat search and metal detector frisk.
These are legitimate interests and it is reasonable to remove outer layers of clothing, to a level
not offensive, such as a single layer above the undergarments. Persons of usual sensibilities are
not offended or humiliated if they are viewed in public wearing a single layer of clothing over
their undergarments. Indeed, such attire is common during summer months.
However, Farkarlun’s clothing was removed such that she had only undergarments
37
covering her lower body in an area viewable by persons of both genders. A reasonable person
could find this offensive. Nonetheless, the officers are entitled to qualified immunity because
there is no evidence of record indicating that they knew or should have known that Farkarlun’s
boxer shorts were her last layer of clothing. Boxers are not undergarments commonly or
traditionally worn by women. When women do wear boxers, they are often worn over more
traditional undergarments; in fact, Farkarlun could not recall whether she was wearing her
boxers over additional underwear that day. Farkarlun Dep. 111:22-23. The statement of the
officers that they would “get her down to her boxers” is inculpatory only when viewed in
hindsight with the knowledge that Farkarlun was not wearing more underneath her boxers and
that her buttocks would ultimately be exposed. Hindsight vision is not a proper analysis of law
enforcement action. Farkarlun was wearing several layers of clothing. An officer of reasonable
caution, with the knowledge equivalent to that possessed by Hannig, Peterson, Sommerfeld, and
Novotny, would not have known that removing Farkarlun’s clothing except for her boxers would
create a risk of exposure of her private areas. Therefore, they are entitled to qualified immunity.
8. Monell claim against Hennepin County
In addition to suing individual officers, Farkarlun asserts claims against Hennepin
County directly. Hennepin County is liable if Farkarlun suffered a constitutional violation and
Hennepin County was the “moving force” behind the violation. Municipalities may be liable
under § 1983 for unconstitutional action that is undertaken according to a policy or custom
38
adopted by the municipality. Monell, 436 U.S. at 690. A custom need not have received formal
approval. Id. at 691. A custom is demonstrated by (1) existence of a continuing, widespread,
persistent pattern of unconstitutional misconduct, (2) deliberate indifference to or tacit
authorization of such conduct by policymaking officials after notice of the misconduct, and (3)
the plaintiff’s injury was caused by the custom that was the moving force behind the
constitutional violation. Ware v. Jackson Cnty., 150 F.3d 873, 880 (8th Cir. 1998).
Farkarlun claims two Hennepin County policies are unconstitutional because they do not
provide sufficient guidance. While this argument might have been styled as a claim that
Hennepin County has a custom of failing to adequately train its sheriff deputies rather than a
claim the policy itself is unconstitutional, the distinction is immaterial because both types of
claims require an underlying constitutional violation. McCoy v. City of Monticello, 411 F.3d
920, 922 (8th Cir. 2005). Farkarlun has not adduced evidence of any such violation. The two
constitutional violations Farkarlun identifies are (1) unreasonable search premised on the
practice of removing layers of clothing in the Sally Port and (2) excessive force premised on the
practice of taking “squirmy” suspects to the floor through force. Each is considered in turn
below.
a. Partial Disrobing
The Sally Port area of the ADC is a transitional area between the jail itself and the
outside world. The staff in the Sally Port are male and female Hennepin County sheriff deputies.
39
Adjacent to a Sally Port on one side are holding cells. Adjacent to the Sally Port on another side
is a property room where inmates turn over property not allowed into the jail and a waiting room
where inmates wait to enter the jail.
Hennepin County sheriff deputies typically remove outer layers of clothing, leaving a
single layer above undergarments. The rationale for doing so is to increase the efficacy of pat
searches, reducing safety risks to deputies. Deputies often remove pants when someone is
wearing shorts or other clothing underneath pants and above the undergarments. In about ten
percent of cases, however, suspects are reduced to wearing only their underwear, typically boxer
shorts, covering their lower body. Hennepin County has not adopted any formal, written policy
regarding the amount of clothing to be removed in the Sally Port.
Hennepin County is entitled to summary judgment as it relates to a custom of removing
clothing because Farkarlun has not met her burden of creating a genuine issue of material fact
that there is a pattern of unconstitutional misconduct at the ADC. A reasonable juror could
conclude that ten percent is a widespread and persistent pattern of conduct. The conduct,
however, is not unconstitutional. The Eighth Circuit has recognized that requiring a suspect to
disrobe to her undergarments “while intrusive to a degree, present[s] a lesser invasion of privacy
than a full strip search.” Smook v. Minnehaha Cnty., 457 F.3d 806, 812 (8th Cir. 2006).
“[S]earches requiring a person to disrobe completely have a uniquely invasive and upsetting
nature.” Id. (internal quotations omitted). Moreover, the viewing of a suspect in underwear by a
40
law enforcement of the opposite gender is not per se unreasonable. See Schmidt v. City of Bella
Villa, 557 F.3d 564, 573–74 (8th Cir. 2009) (holding search by male officer that required female
to partially disrobe for purpose of photographing tattoo was reasonable); see also Byrd, 629 F.3d
at 1142 (noting that it is not unconstitutional for female corrections officers to view, without
intimately contacting, male inmates in states of undress). Therefore, without any per se rules,
the constitutionality of Hennepin County’s custom turns on a balancing of the need to partially
disrobe suspects against the invasion of personal rights that search entails. Bell, 441 U.S. at 559.
Under the Bell balancing test, Hennepin County’s custom is reasonable. The justification
for the search is to increase the efficacy of a pat-down and frisk with a metal detector. Hennepin
County’s interests in preventing contraband and weapons from being admitted into the ADC and
ensuring the safety of jailers are justifications entitled to considerable weight. The scope and
manner of the intrusion are not unreasonable. On this record, suspects, both men and women,
are never left in a state undress less than boxer shorts and a shirt. This is a state of undress that
is not particularly invasive or humiliating. The presence of officers of the opposite gender is not
unreasonable; nothing indicates that opposite-gender officers are unprofessional or do more than
passively observe to ensure safe and orderly admission into the jail. Finally, the place of the
search–the Sally Port–is somewhat more troublesome but not unconstitutional. Opposite gender
inmates are present in adjacent rooms and cells. However, on this record, nothing indicates that
any of the events in the Sally Port are visible to those adjacent places, and as such the location of
41
the search is not unreasonable. Cf. Williams, 477 F.3d at 977 (holding that search into suspect’s
underwear was reasonable when done in partially secluded parking lot blocked from public view
by fence and vegetation). The custom of partially disrobing suspects is not unreasonable, and
therefore Hennepin County is entitled to summary judgment on this theory of liability.
b. Use of Force on “Squirmy” Suspects
After the events in the Sally Port involving Farkarlun ended, Peterson remarked on the
recording, “That’s what we do, if they get a little squirmy we take them to the floor.” Farkarlun
avers this evinces a custom of the use of excessive force. Not so. There is nothing repugnant to
the Constitution about using force to ensure compliance with lawful orders. The Sally Port is an
area of heightened concern for officer safety. The Sally Port separates those confined in jail
from the outside world. As suspects enter the Sally Port, the reality of imminent confinement
becomes increasingly salient. This is an area of high risk for resistance, which threatens both
officer safety and the orderly administration of the jail itself. Therefore, it is reasonable to use
some force to ensure compliance from suspects that are actively resisting, i.e. being “squirmy.”
See Wertish, 433 F.3d at 1066 (holding that it was objectively reasonable for police officers to
use force to pull suspect from truck that was not complying with orders to exit). Of course, even
if force is justified, the amount of force may be excessive. However, Farkarlun has adduced no
evidence that the amount of force applied to “squirmy” subjects is not reasonable. Some use of
force is obviously appropriate on suspects who do not comply with orders. See id. at 1066–67
42
(noting that some force is reasonable even when a suspect is passively resistant). To prevail
Farkarlun must present evidence that the custom is to use an unconstitutional amount of force.
She has not done so. The Hennepin County Defendants are entitled to summary judgment as it
relates to the custom of taking “squirmy” inmates to the ground.
9. Drug Planting and Falsifying Reports
The final bases for Farkarlun’s claim of a constitutional violation under § 1983 relate to
her allegation that drugs were planted among her belongings and the Hennepin County jailers
falsified reports. She avers such action violates her due process and equal protection rights. The
constitutional dimensions of this claim, however, need not be addressed because Farkarlun’s
claim fails on evidentiary grounds.
Section 1983 allows recovery for constitutional violations. See 42 U.S.C. § 1983.
Section 1983, however, requires more than merely establishing a constitutional violation
occurred. In particular, § 1983 requires evidence of causation. Causation requires evidence
linking a particular defendant to the acts alleged to be a constitutional violation. See Martin v.
Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (dismissing § 1983 claims against defendant not
alleged to be personally involved in or have direct responsibility for alleged constitutional
violations); see also Wilson, 441 F.3d at 591 (“Liability for damages for a federal constitutional
tort is personal, so each defendant's conduct must be independently assessed.”).
To the extent drugs were planted among Farkarlun’s clothing, her claim fails because she
43
has not adduced any evidence of the identity of the person planting drugs. The sole theory
advanced by Farkarlun is that Defendant Hannig planted drugs among Farkarlun’s clothing as
Hannig reached into the gray bin containing the clothing and adjusted them. Pl.’s Mem. Filed in
Opp. to Summ. J. 24. Farkarlun argues that Hannig then took the bin to the property room with
Defendant Peterson and laughed about having planted drugs. Id. at 24, 38–39. This theory
necessarily fails because after reviewing the video, no reasonable jury could conclude that
Hannig planted drugs as she reached into the gray bin. Hannig rearranges the clothing once with
her right hand. Sally Port Video at 2:31:24–31. Hannig’s right hand is clearly visible and is
clearly empty. Sally Port Wall Video at 2:31:25. Hannig then again rearranges the clothing with
both hands before taking it to the property window. Sally Port Video 2:35:10–16. Again, her
hands are clearly visible and clearly empty. Sally Port Video 2:35:07–9 (left hand empty); Sally
Port Wall Video 2:35:10 (right hand empty). The Hennepin County Defendants are entitled to
summary judgment as it relates to drug planting.
Finally, with respect to falsifying reports, Farkarlun has not adduced any evidence of any
false statements in the reports. Hannig, Novotny, Peterson, and Sommerfeld all drafted reports.
Clark Decl Exs. 3, 4. In those reports, they variously claim that Farkarlun “began to struggle” or
“kept turning away from the wall” or was “uncooperative” or was “struggling” or “physically
resisted.” Id. All of these statements are true; the recording shows that Farkarlun was
uncooperative in that she would not answer medical questions, turned away from the wall twice,
44
and would not get on the ground. Therefore, the Hennepin County Defendants are entitled to
summary judgment on this theory of liability as well.
10. State Law Claims Against Hennepin County Defendants
In addition to her claims under federal law, Farkarlun asserts state law claims for assault
and battery against the Hennepin County Defendants. Am. Compl. ¶¶ 38–44. In Minnesota,
“official immunity” provides a public official with a defense to state law claims. Mumm v.
Mornson, 708 N.W.2d 475, 490 (Minn. 2006). Official immunity protects discretionary conduct
unless an official commits a “willful or malicious wrong.” Elwood v. Rice County, 423 N.W.2d
671, 679 (Minn. 1988). A willful or malicious wrong is an act that an official “has reason to
believe is prohibited.” Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991). Based on the
information they possessed and Farkarlun’s resistance on the scene, none of the Hennepin
County Defendants had reason to believe any use of force on Farkarlun was prohibited, and they
are entitled to official immunity and summary judgment.
IV. CONCLUSION
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1.
Defendants Klimmek and Landmesser are voluntarily DISMISSED by Plaintiff;
2.
The Hennepin County Defendants’ Motion for Summary Judgment [Docket No.
35] is GRANTED; and
45
3.
The Minneapolis Defendants’ Motion for Summary Judgment [Docket No. 44] is
GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
BY THE COURT:
s/ Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: March 2, 2012.
46
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?