Evans v. Griess et al
Filing
79
ORDER denying 53 Motion for Summary Judgment; withdrawing 54 Motion ; withdrawing 55 Motion for Sanctions; withdrawing 57 Motion to Compel; granting 61 Motion ; denying 62 Motion ; granting 65 Motion for Summary Judgment; denying 70 Motion to Compel and denying 76 Motion for Sanctions. Signed by District Judge Terrence W. Boyle on 10/13/2015. Copy sent to pro se plaintiff via US Mail to 717 Court Street, Jacksonville, NC 28540. (Romine, L.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
NO. 7:13-CV-128-BO
GEORGE REYNOLD EVANS,
Plaintiff,
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v.
OFFICER JASION GRIESS, et al.,
Defendants.
ORDER
This matter is before the Court on the parties' cross-motions for summary judgment as
well as numerous motions filed by plaintiff George Evans. For the reasons stated below,
defendant's motion is granted and plaintiffs motions are denied.
BACKGROUND
Plaintiffs seeks compensatory and punitive damages under 42 U.S.C. §§ 1983 and 1985
for alleged violations of his Fourth Amendment rights arising out of on two separate traffic stops
by officers with the Jacksonville Police Department. On March 9, 2015, at approximately 4:30
am, Officer Jason Griess witnessed a vehicle slow down and come to either a stop or very slow
roll while traveling southbound on US 17 in Jacksonville, North Carolina, as it was approached
by a person walking on the shoulder. Griess Aff.
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8 [DE 65-1]. As he approached the vehicle, it
drove off and the individual began walking in the opposite direction. Id.
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11-12. Officer Griess
followed the vehicle and initiated a traffic stop with the intent to issue a citation for impeding
traffic.
Id.~
13; Compl.
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3 [DE-I]. When Officer Griess exited the patrol car, he saw the
driver's side door open, and plaintiff stepped out and began walking toward the rear of the
vehicle. Griess Aff.
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17, 19. Officer Griess ordered plaintiff to return to his car and plaintiff
eventually re-entered the vehicle. Id.
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18, 20-21. Officer Ehrler arrived on the scene shortly
thereafter, followed by Officer Funcke. Id.~~ 26-27; Ehrler Aff. ~ 7 [DE 65-3]. While Officer
Ehrler talked to plaintiff, Officer Funcke to Officer Griess suggested that plaintiff may have tried
to discard evidence. Griess Aff. ~~ 28-29. Upon inspection of the area near the car, Officer
Griess recovered an unbroken glass pipe with burn residue by the front driver's side tire. Id.~ 30.
He ultimately charged plaintiff with possession of drug paraphernalia in violation ofN.C. Gen.
Stat§ 90-133.22 and took plaintiff into custody. Id.~ 34.
On March 15, 2015, Officer Ehrler and Detective Carr received a description of a male in
the area of Newberry Street involved in cocaine base sales. Carr Aff.
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1 [DE 65-2]; Ehrler Aff.
9. While surveilling near Newberry Street, Detective Carr observed a male who fit the
description of the subject near a residence he knew was associated with narcotics trafficking.
Carr Aff.
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3, 5. While he was watching the residence, a vehicle containing two females arrived
and parked in front. Id.
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4. The subject then proceeded to the vehicle, the female passenger
exited, and she and the subject went around the residence out of Detective Carr's sight.
Id.~~
4,
6. After they reappeared a few minutes later, the female got back in the car and left. Id.~ 7.
Shortly thereafter, a small blue Nissan arrived, the subject entered the passenger seat, and
the car drove away.
Id.~
8. Detective Carr asked Officer Ehrler to conduct a traffic stop, as the
behavior of the subject was consistent with drug trafficking. Id.
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9. Officer Ehrler saw the blue
Nissan near the intersection of Railroad Street and College Street and stopped the car. Ehrler Aff.
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14. He recognized the driver as plaintiff.
Id.~
16. Officer Ehrler asked for a K-9 unit to
perform a dog sniff, and the dog alerted near the passenger side of the vehicle. Id.
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18-20.
Plaintiff consented to the search. Evans Dep. pp 64-65. The search was performed, and plaintiff
and the passenger were told they were free to leave, which they did. Ehrler Aff.
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21, 23-24.
DISCUSSION
A motion for summary judgment may not be granted unless there are no genuine issues
of material fact for trial and the movant is entitled to judgment as a matter oflaw. Fed. R. Civ.
P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If that burden has been
met, the non-moving party must then come forward and establish the specific material facts in
dispute to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 588 (1986). In determining whether a genuine issue of material fact exists for trial, a
trial court views the evidence and the inferences in the light most favorable to the nonmoving
party. Scott v. Harris, 550 U.S. 372, 378 (2007). However, "[t]he mere existence of a scintilla of
evidence" in support of the nonmoving party's position is not sufficient to defeat a motion for
summary judgment; "there must be evidence on which the [fact finder] could reasonably find for
the [nonmoving party]." Anderson v. LibertyLobby, Inc., 477 U.S. 242, 252 (1986).
Plaintiffs remaining claims appear to be § 1983 claims against Officers Griess and
Ehrler for unreasonable searches in violation of the Fourth Amendment and a claim against
Officer Griess for an alleged false arrest. Defendants assert qualified immunity as a defense.
Qualified immunity shields government officials from liability so long as they could reasonably
believe that their conduct does not violate clearly established law. Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982); see also Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en bane). It
protects "all but the plainly incompetent or those who knowingly violate the law." Malley v.
Briggs, 475 U.S. 335, 341 (1986); see also Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012).
In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court recognized a two-step
procedure for determining whether qualified immunity applies that "asks first whether a
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constitutional violation occurred and second whether the right violated was clearly established."
Melgar v. Greene, 593 F.3d 348, 353 (4th Cir. 2010). Judges are permitted to exercise their
discretion, however, in regard to which of the two prongs should be addressed first in light of the
facts and circumstances of the particular case. Pearson v. Callahan, 555 U.S. 223, 236 (2009).
Plaintiff bears the burden to show that the constitutional violation occurred, while defendants
bear the burden to show whether the right was clearly established. Henry, 501 F.3d at 377-378.
Defendants are entitled to qualified immunity if the answer to either question is "no." See, e.g.,
Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080; Miller v. Prince George's Cty., Maryland, 475 F.3d
621, 627 (4th Cir. 2007). "Ordinarily, no factual findings are necessary to the analysis of a
qualified immunity claim because the issue is purely a legal one .. .," although a defendant may
challenge the sufficiency of the evidence supporting the complaint's allegations, although
ordinarily, no factual findings are necessary to a qualified immunity analysis. See Cloaninger ex
rel. Estate ofCloaninger v. McDevitt, 555 F. 3d 324, 331 (4th Cir. 2009) (quotation omitted). "In
this situation, a defendant is entitled to summary judgment if the record does not create a genuine
issue of material fact as to whether the defendant committed the acts alleged in the complaint."
Bostic v. Rodriguez, 667 F. Supp. 2d 591, 606-07 (E.D.N.C. 2009) (citation omitted).
Plaintiff appears to argue that Officer Griess unlawfully stopped and searched him on
March 9 and that Officer Ehrler unlawfully stopped him on March 15. "It is clearly established
under the Fourth Amendment that individuals have the right to be free from unlawful seizures of
their persons, including unlawful arrests." Bell v. Dawson, 144 F. Supp. 2d 454, 460 (W.D.N.C.
2001) (citing Imbler v. Pachtman, 424 U.S. 409, 418-19 (1976). However, "[i]f an officer has
probable cause to believe that an individual has committed even a very minor criminal offense in
his presence, he may, without violating the Fourth Amendment, arrest the offender." Atwater v.
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City of Lago Vista, 532 U.S. 318, 354 (2001). "An officer has probable cause for arrest when the
facts and circumstances within the officer's knowledge ... are sufficient to warrant a prudent
person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect
has committed, is committing, or is about to commit an offense."' Wilson v. Kittoe, 337 F.3d
392, 398 (4th Cir. 2003) (alteration in original) (quoting Pritchett v. Alford, 973 F.2d 307, 314
(4th Cir. 1992). "In evaluating objective reasonableness, what the officer observed is highly
relevant; his subjective beliefs are not." Bostic, 667 F. Supp. 2d at 607.
March 9 Incident
In determining whether Officer Griess is entitled to qualified immunity for the events that
occurred on March 9, the Court begins with the question of whether the traffic stop violated
plaintiffs Fourth Amendment right to be free from a warrantless search and probable cause.
Officer Griess argues that he had probable cause to cite plaintiff for parking a vehicle on a
highway or operating a vehicle on a highway at speed slow enough to impede traffic. N.C. Gen
Stat. §§ 20-161, 20-141(h). Under North Carolina law, a highway is defined as [t]he entire
width between property or right-of-way lines of every way or place of whatever nature, when
any part thereof is open to the use of the public as a matter of right for the purpose of vehicular
traffic. N.C. Gen. Stat§ 20-4.01(13). "Observing a traffic violation provides sufficient
justification for a police officer to detain the offending vehicle for as long as it takes to perform
the traditional incidents of a routine traffic stop." United States v. Branch, 537 F.3d 328, 335
(4th Cir. 2008). The area ofNC-17 on which Officer Griess observed plaintiff plainly falls
within the definition of a highway. Accordingly, Officer Griess had probable cause to believe
that a traffic violation occurred and was justified in stopping the vehicle.
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It appears that plaintiff further argues that he was unlawfully arrested by Officer Griess.
"[P]robable cause to justify an arrest exists when a reasonably prudent police officer has
sufficient knowledge to believe that a suspect has committed or is committing a criminal
offense." United States v. Chen, 811 F. Supp. 2d 1193, 1202 (M.D.N.C. 2011). Possession of
drug paraphernalia is unlawful in North Carolina. N.C. Gen. Stat§ 90-113.22. Further, glass
pipers are explicitly included in the definition of drug paraphernalia. N.C. Gen. Stat. § 90113.21(a)(l 12)(a). Accordingly, Officer Griess had probable cause to arrest plaintiff. Even under
plaintiffs version of the events, there was an unbroken glass pipe with residue on it directly
beside the driver's side front tire of plaintiffs vehicle and no one else in the vehicle.
Further, it was reasonable to believe that evidence relevant to the crime of arrest might be
found in plaintiffs vehicle. See United States v. Joy, 336 F. App'x 337, 343 (4th Cir. 2009).
Indeed, "[t]he Supreme Court has specifically acknowledged that drug offenses are the type of
offense for which it may be reasonable to believe that evidence relating to the crime might be
located in the vehicle." Id. Accordingly, Officer Griess had probable cause to conduct a search of
the vehicle. Even if Officer Griess had been mistaken, however, his beliefs and actions were
reasonable as to the existence of probable cause, thus the Court cannot find that he violated the
Constitution. See, e.g., Saucier, 533 U.S. at 206. Accordingly, the Court concludes that the stop,
arrest, and search of plaintiffs vehicle on March 9 satisfied constitutional requirements and that
Officer Griess is entitled to qualified immunity with respect to the § 1983 claim against him.
March 15 Incident
Plaintiff also argues that Officer Ehrler lacked probable cause or reasonable suspicion to
stop his vehicle on March 15. When Officer Ehrler stopped the car, he was acting on an
instruction by Detective Carr. "The collective knowledge doctrine ... holds that when an officer
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acts on an instruction from another officer, the act is justified ifthe instructing officer had
sufficient information to justify taking such action ... " United States v. Massenberg, 654 F.3d
480, 492 (4th Cir. 2011 ). Detective Carr had observed what looked like a narcotics transaction
take place between the female and the subject shortly before the subject got into the Nissan.
Moreover, both Detective Carr and Officer Ehrler had been privy to the briefing that described a
drug trafficking suspect matching the subject's description. In sum, the Court concludes that
Officer Ehrler's actions and beliefs combined with Detective Carr's knowledge when he
instructed Officer Ehrler to stop the car were reasonable as to the existence of probable cause to
stop plaintiffs vehicle. See, e.g., Saucier, 533 U.S. at 206. The Court therefore concludes that
the stop of plaintiffs vehicle on March 15 satisfied constitutional requirements and that Officer
Ehrler is entitled to qualified immunity with respect to the § 1983 claim against him. 1
As defendant's motion for summary judgment [DE 65] is granted, plaintiffs motion for
summary judgment [DE 53] and motion for denial of defendant's response thereto [DE 62] are
denied.
Remaining Issues
It is somewhat unclear whether plaintiff also seeks to assert state law tort claims as part
of this action. "In North Carolina, findings that an arrest was supported by probable cause ... for
the purposes of finding qualified immunity to a§ 1983 ... claim are fatal to the Plaintiffs state
law tort claims." Bell v. Dawson, 144 F. Supp. 2d 454, 464 (W.D.N.C. 2001) (collecting cases).
Accordingly, based on the Court's findings in this case, plaintiff cannot succeed on any
remaining state law tort claims he may be attempting to assert.
1
The Court does not address the search of the vehicle because plaintiff consented to the K-9
search, and "a 'positive alert' from a drug detection dog, in and of itself, provides probable cause
to search a vehicle." United States v. Branch, 53 7 F.3d 328, 340 n.2 (4th Cir. 2008).
Accordingly, once the dog alerted on the car, Officer Ehrler had probable cause to search it.
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Plaintiff's motion to withdraw [DE 61] is granted, and the filings at docket entries 54, 55,
and 57 are withdrawn. Plaintiff's motion to compel [DE 70] is denied, as it was untimely filed
and was not served in accordance with the Federal Rules of Civil Procedure. The Court also
notes that plaintiff has filed a motion for sanctions on defendants. This motion neither addresses
the legal standard for awarding sanctions nor cites any authority in support of plaintiff's position.
As a result, the motion for sanctions [DE 76] is denied.
CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment [DE 65] is
GRANTED. Plaintiff's motion for summary judgment [DE 53] and motion to deny defendant's
response thereto [DE 62] are DENIED. Plaintiff's motion to withdraw [DE 61] is GRANTED
and the motions for sanctions [DE 55] and to compel answers to interrogatories [DE 54, 57] are
WITHDRAWN. Plaintiff's motion for sanctions [DE 76] and motion to compel [DE 70] are
DENIED. The Clerk of Court is DIRECTED to enter judgment accordingly and to close the case.
SO ORDERED, this~ day of October, 2015.
TE
NCE W. BOYLE
UNITED STATES DISTRICT J
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