Rogers v. Lee County, Miss. et al

Filing 138

MEMORANDUM OPINION re 137 Order on Motion for Partial Summary Judgment. Signed by District Judge Sharion Aycock on 3/31/2015. (psk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
KERMIT O. ROGERS

PLAINTIFF

V.

CAUSE NO.: 1:13CV243-SA-DAS

CITY OF TUPELO, MISS., ET AL.

DEFENDANTS

MEMORANDUM OPINION
Plaintiff has moved for partial summary judgment on the grounds that a prior federal
court order in his criminal case established that Defendants violated Plaintiff’s constitutional
rights. In particular, Plaintiff argues that the doctrines of res judicata and/or collateral estoppel
preclude a defense to his claim that his Fourth and Fourteenth Amendment rights were violated.
The Defendants argue that the elements for those doctrines cannot be met and do not apply in
this instance.
Factual and Procedural Background
On information from a confidential informant who allegedly purchased crack cocaine
from Kermit Rogers at 320 CR 401 on three separate occasions, the North Mississippi Narcotics
Unit, and Samuel Warren in particular, obtained a search warrant for the residence, motor
vehicles, and outbuildings on that property from Justice Court Judge Pat Carr. Warren and Paul
Howell, Tupelo Police Department officer and commanding officer of the North Mississippi
Narcotics Unit, were present during the execution of that search warrant. At the scene, officers
noticed other buildings and motor vehicles behind the residence at 320 CR 401.

Warren

allegedly called Justice Court Judge Pat Carr to inquire about an extension of the scope of the
warrant to include the additional buildings and motor vehicles. According to Warren, Judge Carr
assented to the further search, but neither party documented the conversation in any way. A

search of the red truck at address 320A CR 401 led to the discovery of a large quantity of crack
cocaine. A smaller amount was also found in the original residence along with two firearms.
While Rogers was indicted and eventually pled guilty to three counts of selling a
controlled substance in the Lee County Circuit Court under Mississippi law, the North
Mississippi Narcotics Unit contacted the United States Attorney’s Office in Oxford, Mississippi,
to pursue charges related to the larger amount of crack cocaine found in the red truck.
In the federal prosecution, Rogers filed a motion to suppress the evidence found in the
red truck on the basis that the search was outside the bounds of the search warrant. The district
judge denied that motion based on the representations from the government that the red truck
was “parked in the back of the residence located at 320 CR 401.” Rogers entered a conditional
guilty plea to the distribution charge, reserving his right to appeal the district judge’s denial of
his suppression request. The Fifth Circuit Court of Appeals remanded that appeal back to the
district court for an evidentiary hearing.
After the hearing, the district court entered an Order and Memorandum Opinion
suppressing the crack cocaine found in the red truck. In particular, the court held that the search
of Rogers’ red truck was unreasonable and not within the scope of the search warrant. Finding
that probable cause existed as to the search of the residence at 320 CR 401, the court noted that
the officers did not have probable cause to search the building or the red truck located at 320A
CR 401 and no exception to the exclusionary rule applied.
Warren testified at the suppression hearing that he made a telephone call to Judge Carr
while the judge was out at lunch to extend the scope of the warrant or to ensure the legality of the
search of the additional buildings and vehicles. Judge Carr was not called to testify, and the
prosecutor asserted at the hearing that Judge Carr had no recollection of the call from Warren to

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extend the warrant. The district court found that the officers’ request for extension of the scope
of the warrant by telephone call to the justice court judge, if believed, was not properly
undertaken pursuant to Federal Rule of Criminal Procedure 4.1. Further, because no mention of
the call for extension of the scope of the warrant was mentioned prior to Warren taking the stand,
the court was skeptical of such testimony.
In concluding its opinion, the district court expressed concerns about the handling of the
search in this instance and those involved. In particular, the court noted:
The prosecution in this case was more interested in securing the conviction of
a drug dealer than doing so with full candor to the court and within the
limitations of the Constitution. The government in this case represented to the
court that the red truck in which the drugs were found was “parked in the back
of the residence located at 320 CR 401” and thus within the purview of the
warrant.
In light of those allegations by the court, the United States Attorney filed a Motion for Partial
Reconsideration insisting that the representations made by that office were only based on
information provided by the officers’ investigative reports. The motion contends that “the
inaccuracy was the unfortunate result of an inaccurate investigation and perpetual
mischaracterization of the location of the pickup truck by the investigating agents.” In response,
the court entered an amended opinion that stated:
The investigating officers in this case were more interested in securing the
conviction of a drug dealer than in doing so with full candor to the court and
within the limitations of the Constitution. The government, without going to
view the buildings in question, took these officers word that the defendants’
[sic] truck was parked “behind the residence.” Based upon the officers’
statements, the government in this case represented to the court that the red
truck in which the drugs were found was “parked in the back of the residence
located at 320 CR 401” and thus within the purview of the warrant. While
this fact is literally true, it is deceptive.
The evidence was thus suppressed and the federal indictment and superseding indictment were
dismissed thereafter.
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Based on the district judge’s finding that “[t]he actions of the law enforcement officers
violated the Fourth Amendment,” Rogers here seeks summary judgment on his Fourth and
Fourteenth Amendment claims.
Summary Judgment Standard
Summary judgment is warranted under Rule 56(a) of the Federal Rules of Civil
Procedure when the evidence reveals no genuine dispute regarding any material fact and the
moving party is entitled to judgment as a matter of law. The rule “mandates the entry of
summary judgment, after adequate time for discovery and upon motion, against a party who fails
to make a showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
The party moving for summary judgment “bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of [the record] which it
believes demonstrate the absence of a genuine issue of material fact.” Id. at 323, 106 S. Ct. 2548.
The nonmoving party must then “go beyond the pleadings” and “set forth ‘specific facts showing
that there is a genuine issue for trial.’” Id. at 324, 106 S. Ct. 2548 (citation omitted). In reviewing
the evidence, factual controversies are to be resolved in favor of the nonmovant, “but only when
. . . both parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994) (en banc). However, conclusory allegations, speculation,
unsubstantiated assertions, and legalistic arguments have never constituted an adequate substitute
for specific facts showing a genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash.,
276 F.3d 754, 759 (5th Cir. 2002); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1997); Little, 37
F.3d at 1075.

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Discussion and Analysis
Plaintiff argues pursuant to res judicata and/or collateral estoppel that the district court’s
Order and Opinion that Defendant violated Rogers’ clearly established constitutional rights
under the Fourth and Fourteenth Amendments must be recognized in this litigation. The doctrine
of collateral estoppel applies to prevent issues of ultimate fact from being relitigated between the
same parties in a future lawsuit if those issues have once been determined by a valid and final
judgment. Ashe v. Swenson, 397 U.S. 436, 443, 25 L. Ed. 2d 469, 90 S. Ct. 1189 (1970);
Copeland v. Merrill Lynch & Co., Inc., 47 F.3d 1415, 1421-22 (5th Cir. 1995). Fifth Circuit
courts “apply federal law to the question of the res judicata or collateral estoppel effect of prior
federal court proceedings, regardless of the basis of federal jurisdiction in either the prior or the
present action.” Jackson v. FIE Corp., 302 F.3d 515, 529 n.58 (5th Cir. 2002). Because Rogers
requests application of those doctrines to the district court’s judgment suppressing evidence in
his criminal case, the Court applies federal law.
Generally, federal courts apply collateral estoppel “when four conditions are met: (1) the
issue under consideration is identical to that litigated in the prior action; (2) the issue was fully
and vigorously litigated in the prior action; (3) the issue was necessary to support the judgment
in the prior case; and (4) there is no special circumstance that would make it unfair to apply the
doctrine.” Copeland, 47 F.3d at 1421-22. In the Fifth Circuit, “the party seeking collateral
estoppel effect has the burden of proving this to be so.” Anderson, Clayton & Co. v. United
States, 562 F.2d 972, 992 (5th Cir. 1977) (citing United States v. Int’l Building Co., 345 U.S.
502, 506, 73 S. Ct. 807, 97 L. Ed. 1182 (1953)).
In deciding issues of collateral estoppel, the “[t]he right to a full and fair opportunity to
litigate an issue is, of course, protected by the due process clause of the United States

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Constitution.” Hardy v. Johns-Manville Sales Corp., 681 F.2d 334, 338 (5th Cir. 1982).
Accordingly, for collateral estoppel to apply, “a person against whom the conclusive effect of a
judgment is invoked must be a party or a privy to the prior judgment.” Id. As a general matter,
“[p]rivity can be found if one party controlled the earlier lawsuit and its interests were
represented by the party to the first suit.” Drier v. Tarpon Oil Co., 522 F.2d 199, 200 (5th Cir.
1975) (internal quotation marks omitted); Freeman v. Lester Coggins Trucking, Inc., 771 F.2d
860, 864 (5th Cir.1985) (quotation omitted).
“To have control of litigation requires that a person have effective choice as to the legal
theories and proofs to be advanced in behalf of the party to the action. He must also have control
over the opportunity to obtain review.” Hardy, 681 F.2d at 339 (quoting Restatement (Second) of
Judgments 39, comment c (1982)). “[L]esser measures of participation without control do not
suffice. Thus it is not enough the nonparty supplied an attorney or is represented by the same law
firm; helped to finance the litigation; appeared as an amicus curiae; testified as a witness;
participated in consolidated pretrial proceedings; undertook some limited presentations to the
court; or otherwise participated in a limited way. Even a nonparty who was ‘heavily involved’
may remain free from preclusion.” Benson & Ford, Inc. v. Wanda Petroleum Co., 833 F.2d 1172,
1174 (5th Cir. 1987) (quoting 18 C. Wright, A. Miller & E. Cooper, Federal Practice and
Procedure § 4451, at 432-33 (1981)). It is essential that the nonparty have actual control. See,
e.g., Montana v. United States, 440 U.S. 147, 99 S. Ct. 970, 59 L. Ed. 2d 210 (1979); Freeman,
771 F.2d at 864 n.3.
The Fifth Circuit, in a situation very similar to this one, has held that no privity exists
between prosecutors and law enforcement officers such that collateral estoppel applies. McCoy
v. Hernandez, 203 F.3d 371 (5th Cir. 2000). There, the Fifth Circuit affirmed a district court’s

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refusal to apply the doctrine of collateral estoppel in a Section 1983 action against officers in the
Dallas Police Department. Id. at 373. During McCoy’s underlying criminal prosecution, the court
held that the search of his home violated the Fourth Amendment, granted a motion to suppress,
and excluded the introduction of the discovered firearm into evidence. Id. His later filed Section
1983 case alleged that defendants falsely arrested him and conducted an illegal search of his
home. Id. at 373-74. McCoy asserted that the search of his home had already been found to be
illegal, and thus, the doctrine of collateral estoppel should be applied as to that issue. Id. at 374.
The district court denied that request. Id. The Fifth Circuit noted that “[i]n the present case,
privity of the parties is the central question in determining whether collateral estoppel may be
asserted against the defendant officers.” Id. The Court found that as the officers were “merely
witnesses” that they did not control the prosecution of McCoy. Id. The Court noted that the
officers “did not participate in the questioning of witnesses, influence the planning of trial
strategy, nor could they appeal the ruling of the court at the suppression hearing.” Id. Further,
the Court held that the prosecution did not represent the officers’ interest because their “primary
objective in the criminal proceedings was to secure a conviction of McCoy, not to demonstrate
that the officers had performed their functions properly.” Id. Therefore, the Court held that the
officers were not in privity with the prosecuting authority and “thus the district court properly
refused to apply the doctrine of collateral estoppel.” Id.
Here, Defendants City of Tupelo, Lee County, Sheriff Jim Johnson, Samuel Warren and
Paul Howell contend they were not parties to the underlying federal criminal case and were not
in privity with the United States which prosecuted Rogers. Defendants contend they had no
influence on the United States’ trial strategy. Indeed, Howell and Warren were only called to
testify once the Fifth Circuit remanded the case for an evidentiary hearing. Had there been no

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appeal of the original denial of the motion to suppress, it is unlikely Warren and Howell would
have played any part in the federal prosecution of Rogers. Defendants were not allowed to
question other witnesses, and could not appeal any adverse rulings. In this case, Defendants
have attached the deposition testimony of Judge Carr in which he recalls the facts and
circumstances surrounding the search warrant and the telephone call requested an extension, the
same call which the federal prosecutor alleged the judge did not remember. Defendants contend
that if they had any influence or control of the trial strategy, Judge Carr would have been called
to the stand.
Moreover, Defendants note that the federal prosecuting agents did not protect the state
law enforcement officers’ interests. Defendants point to the Motion for Partial Reconsideration
filed by the United States Attorney’s Office in which the federal prosecutors clearly blamed the
state law enforcement officers for miscommunicating information to the prosecutor. The federal
prosecutors went so far as to request the Court to clear their name and reputation while blaming
the Defendants here. Indeed, Defendants claim that the United States Attorney’s Office “threw
them under the bus” in order to protect their own interests to the detriment of the state law
enforcement officials. Clearly, the United States Attorney’s primary objective was securing
Rogers’ conviction, not to demonstrate that the officers performed their duties properly.
The Court finds that there is no privity between the Defendants here and the United
States Attorney’s Office that prosecuted the criminal case against Rogers in which the search of
the red truck was found to violate the Fourth Amendment.
collateral estoppel and res judicata do not apply to that finding.

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Accordingly, the doctrines of

Conclusion
Plaintiff’s Motion for Partial Summary Judgment [80] is DENIED. The Court refuses to
recognize any preclusive effect of the determination in the federal criminal prosecution regarding
the Fourth Amendment violation as Defendants had no control over the proceedings and their
interests were not represented by the prosecuting authority.
SO ORDERED, this the 31st day of March, 2015.
/s/ Sharion Aycock_________
U.S. DISTRICT JUDGE

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