WATSON v. MCPHATTER et al
Filing
46
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 6/23/2020. RECOMMENDED that the Summary Judgment Motion (Docket Entry 33 ) be granted in part and denied in part as follows: summary judgment be granted as to Detective McPhatter and Detective Ludemann, but denied as to Detective Altizer on Plaintiff's fourth-amendment claim for illegal searches of his mail. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
TRAVIS L. WATSON,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
DETECTIVE MCPHATTER, et al.,
Defendants.
1:17cv934
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This
case
comes
before
the
undersigned
United
States
Magistrate Judge for a recommendation on “Defendants’ Motion for
Summary
Judgment”
Motion”).
(Docket
Entry
33)
(the
“Summary
Judgment
For the reasons that follow, the Court should grant in
part and deny in part the Summary Judgment Motion.
BACKGROUND
I.
Procedural History
Alleging violations of his rights under the Fourth Amendment,
Travis L. Watson (the “Plaintiff”) initiated this pro se action
against Detective
McPhatter,
Detective
Altizer,
and
Detective
Ludemann (collectively, the “Defendants”) pursuant to 42 U.S.C.
§ 1983.
(Docket Entry 2 (the “Complaint”) at 2-3.)1
Defendants
moved to dismiss the Complaint for failure to state a claim under
Rule
12(b)(6)
of
the
Federal
Rules
of
Civil
Procedure
(the
1 Citations herein to Docket Entry pages utilize the CM/ECF
footer’s pagination.
“Rules”).
(See Docket Entry 12 (the “Dismissal Motion”) at 1.)
In
response, Plaintiff filed a supplement to his Complaint, entitled
in
part
“Motion
to
Deny
Dismissal”
(Docket
Entry
19
(the
“Supplement”) at 1), which contains additional factual allegations
and “is supported by the affidavits of Judy West [(‘Ms. West’)] and
Carla Morris” (“Ms. Morris”) (id. at 2), as well as other exhibits
(see, e.g., id.; Docket Entry 19-4 at 1).
(See Docket Entry 19 at
1-6.) Because the Complaint, as amended by the Supplement, “states
a
plausible
fourth-amendment
claim
against
Defendants”
for
allegedly “exceed[ing] the bounds of a legitimate protective sweep”
(Docket Entry 25 at 11) by, inter alia, “look[ing] through some
mail in the living room and . . . papers inside the apartment” (id.
at
10
(internal
undersigned
quotation
recommended
marks
that
the
12(b)(6) request (see id. at 13).
and
citation
Court
deny
omitted)),
Defendants’
the
Rule
The Court (per United States
District Judge Loretta C. Biggs) adopted that recommendation and
denied the Dismissal Motion.
(See Docket Entries 27-28.)
Thereafter, the parties engaged in discovery (see, e.g.,
Docket Entry 30 at 1-4 (containing Plaintiff’s discovery requests);
Docket Entry 38 at 1 (indicating that Defendants shared body camera
recordings with Plaintiff)), after which Defendants filed their
Summary Judgment Motion (see Docket Entry 33).
According to the
Summary Judgment Motion:
Plaintiff claims the Defendants performed an illegal
search of his apartment following his arrest on December
2
29, 2016. A review of the material facts will show that
the protective sweep of the apartment and the search
performed by the officer[s] did not violate the Fourth
Amendment rights of the Plaintiff and summary judgment is
appropriate.
(Id. at 1-2.) Plaintiff opposes the Summary Judgment Motion. (See
Docket Entries 42 to 43-5.)
II.
In
Allegations
this
action,
Plaintiff
challenges
Defendants’
alleged
“illegal search and seizure” (Docket Entry 2 at 3) at his apartment
on the morning of December 29, 2016 (id. at 4).
According to the
Complaint, as supplemented:
Defendants,
in
contravention
of
the
Fourth
Amendment,
“violate[d] and disregard[ed Plaintiff’s] expectation of privacy
in” the apartment where he “resided at the time of the violation.”
(Docket Entry 19 at 1.) “[Plaintiff] was arrested outside of [his]
residence,”
and,
“[a]fter
[he]
was
handcuffed,
[Defendants]
immediately enter[ed] the residence without a search warrant or
probable cause or exigent circumstances” (Docket Entry 2 at 6) or
“consent to enter or search” (id. at 5).
Plaintiff’s “fianc[é]e
([Ms.] Morris) and [his] mother ([Ms.] West) also were present”
during this event.
(Id.)
More specifically, “[t]he police came to the [apartment] door
early on December 29, 2016.
After they identified themselves,
[Plaintiff] came to the door with his hands up.”
1, ¶ 3.)
(Docket Entry 19-
“[Plaintiff] came out of the apartment door with his
3
hands up.
The police grabbed him as soon as he was about two feet
(2’) outside of the apartment.”
(Docket Entry 19-2, ¶ 3; see also
Docket Entry 19-1, ¶ 3 (“The police grabbed him and took him
outside
of
the
apartment.”).)
“As
soon
as
they
grabbed
[Plaintiff], approximately three (3) police officers went into the
apartment.
Two of the police officers stayed in the apartment and
one left[.]”
¶ 4.)
(Docket Entry 19-2, ¶ 4; accord Docket Entry 19-1,
The police entered “right after Officer J.L. Matthews
cleared the residence from the front door.
There was [sic] no
reports or indications that the officers felt threatened or that
they had any basis to believe that evidence was being destroyed.”
(Docket Entry 19 at 2 (citation omitted).)
“Detective Matthews
stood outside the door of the residence while [Defendants] detained
[Ms.] Morris inside the apartment.
[Plaintiff]
until
officers
approximately 8:40 a.m.”
[Ms.] West was outside with
escorted
[him]
away
.
.
.
at
(Docket Entry 2 at 5.)
“After the entry (without a search warrant) the search of
[the] residence did not end.”
(Docket Entry 19 at 2.)
“Detective
Altizer physically remained in the residence” and “[t]he police
kept [the] residence door open” (id.) with another officer standing
near the apartment door “looking at the living room and what was in
the living room” (Docket Entry 19-1, ¶ 9), for approximately two
hours (see Docket Entry 19 at 3; see also Docket Entry 19-1, ¶¶ 6,
9).
The officers ordered Ms. Morris “to remain on the couch and
4
not to move” and “did not allow her to answer her phone.”
Entry 19 at 2.)2
(Docket
For “a long time” (Docket Entry 19-1, ¶ 6; Docket
Entry 19-2, ¶ 6), police officers detained Ms. Morris on the couch
and refused to let Ms. West enter the residence.
1, ¶¶ 5, 8; Docket Entry 19-2, ¶ 5.)
(Docket Entry 19-
“[D]uring this time,”
Defendants “look[ed] through papers inside the apartment” (Docket
Entry 19-2, ¶ 7) and “searched through the mail of the residence”
(Docket Entry 19 at 2; accord Docket Entry 19-1, ¶ 4).
“After the
search had been ongoing for (2) two hours (see search warrant for
verification of the execution of the warrant which was at 10:30
a.m.
Search began at 8:30 a.m.), Detective W.C. Tyndall obtained
a search warrant to search the residence and [P]laintiff’s 1997
Acura from Magistrate Watts at 9:30 a.m. on December 29, 2016.”
(Docket Entry 19 at 3.)
Defendants’ “illegal search” resulted in
the discovery and seizure of a firearm (Docket Entry 2 at 6) and
caused, inter alia, “[e]motional and mental suffering” and “[j]ob
loss” (id. at 5).
III.
In
The Record
support
of
their
respective
positions,
the
parties
submitted affidavits, a transcript from certain proceedings in
Plaintiff’s state-court criminal cases, written police records, and
2
Plaintiff asserts no claim on behalf of Ms. Morris
regarding the legality of her detention.
(See id. at 4 (“Ms.
Morris is only a witness for the purposes of this civil action.”).)
5
body
camera
footage
from
officers
present
Plaintiff’s arrest on December 29, 2016.
at
the
scene
of
As relevant to the
Summary Judgment Motion, the record reflects the following:
A. Plaintiff’s Apartment Layout
Plaintiff, his fiancée, Ms. Morris, and their pet pitbull,
Sincere, resided in a two-story apartment building that contained
eight units.
14:01, 14:31.)3
(See, e.g., Altizer Video at 13:46-13:47, 13:59Separate stairways divided the apartments into two
distinct groups, each containing a set of two upper and two lower
units.
(See id. at 13:46-13:47.)
Individual walkways extended
from a sidewalk adjoining the parking lot directly to the door of
each of the lower units.
(See id.)
A flight of stairs terminated
a little more than halfway down each walkway.
(See id.)
For each
grouping, the top of these flights of stairs formed a joint landing
from which a combined flight of stairs rose to an entranceway for
the (two) second-floor apartments.
(See id.)
As one faced the
building from the parking lot,4 Plaintiff and Ms. Morris resided in
the lower left apartment unit of one such grouping.
(See id.)
3 Defendants submitted a compact disc “containing fourteen
recordings captured by body worn cameras worn by law enforcement
officers with the Greensboro Police Department who participated in
the apprehension, arrest and search of the apartment at which
Plaintiff was living on December 29, 2016.” (Docket Entry 38 at
1.) This Recommendation refers to those video recordings using the
relevant officer’s name and the video timestamp.
4 For ease of reference, the same perspective governs all
directional information in this Recommendation.
6
The front door on their one-bedroom apartment opened into a
large room, with the kitchen on the right, the living room on the
left, and a doorway to the bedroom straight ahead.
(See id. at
13:54-13:56; Matthews Video at 13:55; see also Docket Entry 43-1 at
17, 39.) Immediately inside the bedroom door on the right appeared
the bathroom, followed by a walk-in closet.
(See Altizer Video at
13:55-13:56; Matthews Video at 13:55; see also Docket Entry 43-1 at
17.)
the
The apartment door opened to the right, directly across from
kitchen
bar,
with
a
long
table
containing
a
stereo
television set immediately to the left as one entered.
and
(See
Altizer Video at 13:55-13:57, 14:04; Matthews Video at 13:55-13:56;
see also Docket Entry 43-1 at 17, 39, 45.)
The living room
contained two couches, one on the far left wall, which ran parallel
to the kitchen bar, and one on the bedroom wall, opposite the table
with the television, as well as an armchair in front of the kitchen
bar, opposite the first couch.
(See Altizer Video at 14:00-14:03;
Matthews Video at 13:55-13:56.)
B. Relevant Events
On December 22, 2016, a Greensboro Family Dollar Store “was
robbed at gunpoint by a black male in his late 30’s to early 40’s
wearing a hooded shirt, sunglasses and donning a wig fashioned with
braids or dreadlocks.”
(Docket Entry 36 at 9.)
Two days later,
Greensboro Police Officers responded to reports of an assault at
Plaintiff’s apartment building.
(Id.)
7
According to the affidavit
underlying a subsequent search warrant for Plaintiff’s apartment
and car:
The victim of the alleged assault, Plaintiff’s brother Patrick
Marshall,
reported
that
Plaintiff
(1)
had
assaulted
(2) lived in the apartment below Marshall’s apartment.
him
and
(See id.)
Per the EMT who treated Marshall for injuries at the scene:
while [the EMT] was treating Patrick Marshall for his
injuries Marshall stated that his brother, [Plaintiff],
robbed the Family Dollar and wore a wig while doing so.
Marshall went on to tell the EMT that the clothes, wig
and the handgun that were used in the robbery were [in
Plaintiff’s] apartment which is directly below Patrick
Marshall’s apartment.
(Id. at 10.)
Based on this report and subsequent photograph
identifications, the officer investigating the robbery, Detective
William Tyndall, obtained a warrant for Plaintiff’s arrest for
Robbery with a Dangerous Weapon.
(Id.)
“Based on [Plaintiff’s] criminal history and the nature of the
crime, the Violent Criminal Apprehension Team [(the ‘VCAT’)] was
assigned to apprehend [Plaintiff].” (Id., ¶ 6.) Detective Tyndall
“provided Detective Altizer with the information and also informed
her that if [Plaintiff] was arrested at [his apartment], [Detective
Tyndall] would be seeking a search warrant for the apartment.”
(Id.)
Detective Tyndall prepared a search warrant in anticipation
of Plaintiff’s arrest.
(See id., ¶ 7.)
8
At
approximately
a.m.5
8:46
on
December
29,
2016,
VCAT
officers approached Plaintiff’s apartment to arrest him on the
outstanding warrant.
(See, e.g., Altizer Video at 13:46-13:47;
Docket Entry 43-1 at 12-14.)
Officers knocked on the apartment
door and, after a few minutes’ delay, during which, inter alia,
officers continued to knock, engaged in verbal exchanges with
Plaintiff, and repeatedly ordered Plaintiff to answer the door,
Plaintiff opened the apartment door and stood with his hands in the
air inside the apartment.
(See, e.g., Altizer Video at 13:47-
13:53; Docket Entry 43-1 at 13-14, 43.)
The officers ordered
Plaintiff to exit the apartment and get on the ground.
(See, e.g.,
Altizer Video at 13:53; Docket Entry 43-1 at 13-14, 43.)
As
Plaintiff exited the apartment, he lowered his hands and officers
on either side of the door grabbed his wrists as he exited.
e.g., Altizer Video at 13:53.)
a
foot
or
two
from
the
(See,
Plaintiff laid down on the ground
apartment
threshold
while
officers
handcuffed his arms behind his back. (See, e.g., id.; Graham Video
at 13:53.)
As officers handcuffed Plaintiff, Detective Altizer
initially ordered Ms. Morris to close the apartment door to prevent
Sincere’s exit, but, before Ms. Morris complied, Detective Altizer
5 The timestamp on the body camera footage reflects Universal
Coordinated Time.
(See Docket Entry 37, ¶ 6.)
To calculate
Eastern Standard Time, subtract five hours. (See, e.g., Altizer
Video at 13:55 (reflecting time of 8:55 on pictured cellphone);
Ludemann Video at 14:56 (reflecting time of 9:54 on pictured
cellphone).)
9
directed her to instead leave the door open and restrain Sincere.
(See, e.g., Altizer Video at 13:53.)
Detective Ludemann and another officer, M. Graham, handcuffed
Plaintiff while Detective McPhatter positioned himself on the
walkway between Plaintiff and the entrance to the stairs.
(See,
e.g., Graham Video at 13:53.) After Graham helped Plaintiff to his
feet, Graham and Detective McPhatter walked Plaintiff to the stairs
outside his apartment, where they told him to take a seat.
e.g., id. at 13:53-13:54.)
(See,
Detective McPhatter then walked up the
walkway towards the parking lot to speak with Plaintiff’s mother,
Ms. West, who had arrived on the scene from her nearby apartment.
(See, e.g., id. at 13:55; McPhatter Video at 13:55-13:57.)
Detective
Ludemann
radioed
for
a
patrol
car
to
come
Next,
collect
Plaintiff, after which Plaintiff’s mother and Detective McPhatter
approached the stairs where Plaintiff remained seated. (See, e.g.,
Graham Video at 13:55-13:58.)
left
to
retrieve
socks
from
Shortly after Plaintiff’s mother
her
nearby
apartment,
Detective
Ludemann, at Graham’s request, went to the parking lot to get leg
cuffs for Plaintiff.
Meanwhile,
as
(See, e.g., id. at 13:58-14:00.)
officers
finished
handcuffing
Plaintiff,
Detective Altizer asked Ms. Morris through the apartment’s open
door whether anyone else remained in the apartment and Ms. Morris
indicated that nobody did.
(See, e.g., Altizer Video at 13:53.)
At Detective Altizer’s requests, Ms. Morris agreed that Detective
10
Altizer could both enter the apartment to speak with her and check
the apartment to confirm that it remained empty.
(See, e.g.,
Altizer Video at 13:54; Docket Entry 43-1 at 15-16, 25, 44.)
Detective Altizer asked Ms. Morris to sit on the couch (see Altizer
Video at 13:54) before Detective Altizer, Detective Ludemann, and
Detective J.L. Matthews quickly cleared the apartment (see id. at
13:55; Ludemann Video at 13:55; Matthews Video at 13:55; Docket
Entry 39, ¶ 5; see also Docket Entry 43-1 at 44 (agreeing, in Ms.
Morris’s state-court testimony, that it took “30 seconds or maybe
even less for” officers “to look through the whole apartment”)).6
As soon as they finished clearing the apartment, the three
officers permitted Ms. Morris to retrieve shoes from the bedroom
closet and take them out to Plaintiff.
13:55-13:57.)
(See, e.g, Altizer Video at
While Ms. Morris engaged in this errand, Detective
Ludemann exited the apartment and Detective Altizer telephoned
Detective Tyndall regarding the arrest and anticipated search
warrant.
(See, e.g., id. at 13:56; Docket Entry 35, ¶ 6; Docket
Entry 36, ¶ 7; see also Docket Entry 19-2, ¶ 4 (averring:
as
they
grabbed
[Plaintiff],
approximately
officers went into the apartment.
three
“As soon
(3)
police
Two of the police officers
6 A fourth officer, S. Friel, entered the apartment near the
end of the sweep, asking whether they were “good.” (See, e.g.,
Matthews Video at 13:55.)
When told that they were “good for
people,” he exited the apartment. (See, e.g., id.)
11
stayed in the apartment and one left[.]”).)7
When Ms. Morris
returned, Detective Altizer told her to retake her seat on the
couch, prompting Ms. Morris to sit in roughly the middle of the
couch on the left wall. (See, e.g., Altizer Video at 13:57-14:00.)
Detective Altizer explained that they had arrested Plaintiff for a
robbery and that the detective who had investigated the robbery was
“getting a search warrant signed right now, so [the officers were]
just in kind of a holding pattern right now [and] were going to
hang out right here until he gets here.”
(Id. at 13:57-13:58.)
During this exchange, Detective Matthews stationed himself just
outside and to the right side of the apartment door, diagonally
across from Ms. Morris, a position he generally maintained for the
duration of the recordings made before Detective Tyndall’s arrival.
(See, e.g., McPhatter Video at 13:57-14:24; Altizer Video at 13:5714:00, 14:24-14:39.)
In this position, Detective Matthews largely
remained in Ms. Morris’s line of sight. (See, e.g., Matthews Video
at 14:07; Altizer Video at 14:07; Friel Video at 14:07.)
Soon
thereafter, another officer, S. Friel, stationed himself opposite
Detective Matthews, to the left of the apartment door. (See, e.g.,
McPhatter Video at 13:59-14:00; Matthews Video at 13:59-14:00.)
Following her conversation with Ms. Morris, Detective Altizer
generally remained either a few feet inside or just outside the
7 At 9:21 a.m., Detective Tyndall called Detective Altizer to
report that “he[ wa]s at the courthouse right now.” (Altizer Video
at 14:21.)
12
apartment door, save for a few trips to her car or to speak with
individuals outside the apartment.
14:39.)
(See Altizer Video at 13:57-
However, at approximately 9:15 a.m., Detective Altizer
moved to briefly stand near the kitchen island.
14:15.)
(See id. at 14:14-
It appears that Ms. Morris remained looking downward with
her hand in front of her eyes for at least the first part of the
time
that
(See id.)
Detective
Altizer
stood
near
the
kitchen
island.
The reflection in a mirror over the couch where Ms.
Morris remained seated shows Detective Altizer looking downwards
towards the contents on the kitchen bar when she approached the
bar.
(See id. at 14:14.)
The recording does not show the mirror
for the entire (brief) period that Detective Altizer remained near
the kitchen bar, but the subsequent portions captured on video
appear to show Detective Altizer either looking towards the door or
towards Ms. Morris, with her hands generally on or near her police
vest.
(See id. at 14:14-14:15.)8
In the interim, after Ms. Morris brought Plaintiff shoes,
Plaintiff objected to the officers’ failure to either inform him of
8 As a general matter, given the body camera’s position on
Detective Altizer’s vest, Detective Altizer’s hands largely
remained outside the range of her body camera footage.
(See
generally Altizer Video 13:46-14:39.)
Nonetheless, on a few
occasions, it appears that Detective Altizer silenced Ms. Morris’s
ringing cellphone, which lay beside the stereo on the table inside
the entrance door. (See id. at 14:03, 14:10; see also id. at 14:14
(showing part of Detective Altizer’s hand silencing cellphone);
Matthews Video at 14:03 (showing Detective Altizer picking up
cellphone from table to show to Ms. Morris).)
13
the charges underlying his arrest or show him the arrest warrant.
(See, e.g., Graham Video at 13:56-13:59.)
Plaintiff objected that
the officers were not “showing [him] that [he had] rights,” as they
remained standing inside his apartment and had made him come
outside, without showing him a warrant. (See, e.g., id. at 13:59.)
He also asked if the officers were “detaining [Ms. Morris] too,” in
response to which Graham explained that they were “basically
holding down [Plaintiff’s] apartment [be]cause the Detective [who
obtained Plaintiff’s arrest warrant] wants to do a search warrant
[t]here.”
a
search
(Id. at 14:00-14:01.)
warrant,
Plaintiff
bothering [Ms. Morris].”
As the officers did not possess
wanted
to
(Id. at 14:01.)
know
“why
[they]
were
Officers responded that
the search warrant was “on its way” and that they could “lock [the
apartment] down” and were “not doing anything wrong.”
Detective
McPhatter
and
Graham
then
adjusted
(Id.)
Plaintiff’s
handcuffs to make them more comfortable, during which process Ms.
West returned from her apartment. (See, e.g., id. at 14:02-14:04.)
Plaintiff told his mother that the officers “ain’t even got no
search warrant or nothing” and had not told him why they were
arresting him.
(Id. at 14:03.)
After the officers declined to
answer his mother’s question about the reason for his arrest,
Plaintiff stated that, “if they ain’t got no warrant, they need to
leave, Ma.”
(Id.)
Detective McPhatter, Ms. West, and Plaintiff
then discussed the situation, with Detective McPhatter explaining
14
that Detective Tyndall was bringing a search warrant and the
officers were not leaving until he arrived.
(See, e.g., id. at
14:04-14:06.)
At that point, the patrol car arrived and Plaintiff and Ms.
West asked if Ms. Morris could come hug Plaintiff before he left.
(See, e.g., id. at 14:06.)
Graham said that she could (see id.),
but Detective Altizer vetoed that idea (see id. at 14:06-14:07; see
also Altizer Video at 14:06-14:07).
Graham then walked Plaintiff
over to the patrol car, where Detective Ludemann stood speaking
with the patrol car’s driver, Corporal Sink.
14:07.)
(See Graham Video at
Graham explained to Corporal Sink that they “[wi]ll be
down there in a minute . . . .
It’s just [that Plaintiff] has a
lot of family here in close proximity.”
(Id. at 14:08.)
As they
walked back towards the apartment, Graham suggested to Detective
Ludemann that one of them follow the patrol car, and then informed
Detective
McPhatter,
who
stood
talking
to
Plaintiff’s
mother
between the stairway and the sidewalk, that Graham was “going to
run down there with [the patrol car].”
(Id.)
While Graham and Detective Ludemann engaged with the patrol
car, Detective McPhatter remained on the walkway between the stairs
and the sidewalk speaking with Ms. West.
14:07-14:09.)
her
cousin
(See McPhatter Video at
Ms. West then walked to the sidewalk to speak with
and
Detective
McPhatter
walked
back
towards
the
stairway, where he briefly spoke with Detective Ludemann before Ms.
15
West returned for further conversation with Detective McPhatter
before turning and walking away towards her apartment. (See id. at
14:09-14:14.)
Detective McPhatter then briefly stationed himself
on the left side of the walkway at the stairway, across from
Detective Ludemann, before leaving to move his car into a parking
spot.
(See
id.
at
14:14-14:19.)
When
Detective
McPhatter
returned, he stood on the right side of the walkway at the stairs
and Detective Ludemann took his previous position on the left side
of the walkway.
(See id. at 14:19-14:24.)
Detective McPhatter
maintained this basic position for the duration of the body camera
recordings made before the arrival of Detective Tyndall with the
search warrant.
(See id. at 14:19-14:24; Friel Video at 14:20-
14:33; Altizer Video at 14:20-14:39.)
For his part, Detective
Ludemann also kept the same position until 9:39 a.m., when he took
Friel’s prior station outside the left side of the apartment door.
(See McPhatter Video at 14:19-14:24; Friel Video at 14:20-14:33;
Altizer Video at 14:20-14:39.) From her position on the couch, Ms.
Morris could not see Detective McPhatter or Detective Ludemann
outside the apartment.
(See, e.g., Altizer Video at 14:09-14:10,
14:29-14:30.)
In the interim, at 9:30 a.m., Ms. West went upstairs, to the
apartments above Plaintiff’s apartment.
14:30.)
(See Friel Video at
She came back downstairs at 9:32 a.m. (see id. at 14:32),
and came over to the walkway to speak to a newly arrived officer at
16
9:35 a.m. (see Altizer Video at 14:35.)
After that officer
informed her that he did not have the search warrant, Ms. West
asked Detective Altizer if Ms. Morris remained well.
(See id.)
Upon receiving an affirmative response, Ms. West walked away in the
direction of her apartment.
(See id.)
Shortly thereafter, Detective Altizer turned off her body
camera.
(See id. at 14:39.)
The other officers on the scene had
already turned off their body cameras.
(See Friel Video at 13:54,
14:33; Graham Video at 14:09; Ludemann Video at 13:56; Matthews
Video at 13:54, 14:10; McPhatter Video at 14:24; see also Sink
Video at 14:09 (departing premises).)
The earliest body camera
recordings resume at 9:54 a.m., following Detective Tyndall’s
arrival.
(See Ludemann Video at 14:54; Matthews Video at 14:54;
see also Altizer Video at 14:58.)
As such, a fifteen-minute gap
appears in the video recordings from the scene.
Detective Altizer
avers that, during this gap, she remained “standing outside or
right in the threshold of the apartment awaiting the arrival of
Detective Tyndall.”
(Docket Entry 35, ¶ 10.)
In sum, on the video recordings made prior to Detective
Tyndall’s arrival, only Detective Altizer, Detective Ludemann,
Detective
Further,
Matthews,
after
he
and
departs
Friel
the
enter
Plaintiff’s
apartment
at
the
apartment.
end
of
the
protective sweep, Detective Ludemann remains outside the apartment
and outside Ms. Morris’s line of sight for the duration of that
17
footage.
However,
Detective
Altizer
and
Detective
Matthews
generally remain in or near the apartment door, largely within Ms.
Morris’s range of vision from her seat on the couch.
Finally, the
recordings identify Detective Altizer as the only female among the
VCAT officers.
In
addition
to
the
foregoing,
the
record
reflects
the
following sworn testimony from Ms. West, Ms. Morris, and Detective
Altizer.
testimony,
First, according to Detective Altizer’s state-court
after
clearing
the
apartment
and
while
awaiting
Detective Tyndall’s arrival, she did not search anything or observe
any other officer searching anything, including during the period
when her body camera remained deactivated.
at 18-22.)
(See Docket Entry 43-1
However, according to Ms. West:
“As soon as the[ officers outside the apartment] grabbed
[Plaintiff], approximately three (3) police officers went into the
apartment.
Two of the police officers stayed in the apartment and
one left[.]”
(Docket Entry 19-2, ¶ 4.)
“The two (2) police
officers stayed in the apartment the entire time until the police
officer came with the warrant.
apartment open.
The police kept the door to the
[Ms. West] saw these police officers were looking
through papers inside the apartment during this time.” (Id., ¶ 7.)
Detective Altizer (whom Ms. West identified at the state-court
suppression hearing as “the officer lady right there”) and a “male
officer were inside of the apartment checking the mail.”
18
(Docket
Entry 43-1 at 38.)
More specifically, Detective Altizer and her
male colleague looked through mail on the kitchen bar for “a few
minutes” (id. at 39) approximately five minutes after the patrol
car took Plaintiff away.
(See id. at 38-42; see also id. at 42
(“They just had the mail in their hand looking at the mail.
And
then [Ms. West] was talking to the officers outside and asking them
what was going on.”).)
Finally, according to Ms. Morris:
Shortly after police officers grabbed Plaintiff, “two police
officers came into the apartment.
One was female and one was male.
They looked through some mail in the living room.”
19-1, ¶ 4.)
(Docket Entry
This involved them “picking through[] . . . kind of a
stack of mail laying, just looking through it, looking at names.
That’s what they were doing.”
(Docket Entry 43-1 at 46.)
“The
female police officer stayed in the apartment the entire time while
[they] waited. The male police officer went out the apartment door
but they kept the door open and [Ms. Morris] could see him and he
could see [her] and into the apartment the entire time.”
Entry 19-1, ¶ 7.)9
(Docket
Although Ms. Morris did not observe Detective
Altizer searching anything “[w]hen she came into the apartment” at
first following the protective sweep, “at least about 30 to 40
minutes” after the patrol car took Plaintiff away, Detective
9 In her state-court testimony, Ms. Morris clarified that
Detective Altizer was “in and out” of the apartment, but “was there
permanently the whole time.” (Docket Entry 43-1 at 48.)
19
Altizer searched “the mail.”
(Docket Entry 43-1 at 46.)
Finally,
although Ms. Morris gave Detective Altizer permission to conduct a
protective sweep of the apartment, she did not authorize any other
search.
(See id. at 46-47.)
DISCUSSION
I. Relevant Standards
A. Summary Judgment
“The [C]ourt shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
P. 56(a).
Fed. R. Civ.
A genuine dispute of material fact exists “if the
evidence is such that a reasonable jury could return a verdict for
the nonmoving party.”
242, 248 (1986).
Anderson v. Liberty Lobby, Inc., 477 U.S.
The movant bears the burden of establishing the
absence of such dispute.
Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986).
In analyzing a summary judgment motion, the Court “tak[es] the
evidence and all reasonable inferences drawn therefrom in the light
most favorable to the nonmoving party.” Henry v. Purnell, 652 F.3d
524, 531 (4th Cir. 2011) (en banc).
In other words, the nonmoving
“party is entitled ‘to have the credibility of his evidence as
forecast assumed, his version of all that is in dispute accepted,
[and] all internal conflicts in it resolved favorably to him.’”
Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir. 1990) (en banc)
20
(brackets in original) (quoting Charbonnages de France v. Smith,
597 F.2d 406, 414 (4th Cir. 1979)).
If, applying this standard,
the Court “find[s] that a reasonable jury could return a verdict
for [the nonmoving party], then a genuine factual dispute exists
and
summary
judgment
is
improper.”
Evans
v.
Technologies
Applications & Serv. Co., 80 F.3d 954, 959 (4th Cir. 1996).
However, “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude
the entry of summary judgment.”
Anderson, 477 U.S. at 248.
Moreover,
may
“the
non-moving
party
not
rely
on
beliefs,
conjecture, speculation, or conclusory allegations to defeat a
motion for summary judgment.”
Lewis v. Eagleton, No. 4:08cv2800,
2010 WL 755636, at *5 (D.S.C. Feb. 26, 2010) (citing Baber v.
Hospital Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992)),
aff’d, 404 F. App’x 740 (4th Cir. 2010); see also Pronin v.
Johnson, 628 F. App’x 160, 161 (4th Cir. 2015) (explaining that
“[m]ere conclusory allegations and bare denials” or the nonmoving
party’s “self-serving allegations unsupported by any corroborating
evidence”
cannot
defeat
summary
judgment).
Finally,
factual
allegations in a complaint or court filing constitute evidence for
summary judgment purposes only if sworn or otherwise made under
penalty of perjury.
See Reeves v. Hubbard, No. 1:08cv721, 2011 WL
4499099, at *5 n.14 (M.D.N.C. Sept. 27, 2011), recommendation
adopted, slip op. (M.D.N.C. Nov. 21, 2011).
21
B. Fourth Amendment
The Fourth Amendment protects “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.” U.S. CONST. amend. IV. As the
United States Supreme Court has explained, the “physical entry of
the home is the chief evil against which the wording of the Fourth
Amendment is directed.”
Welsh v. Wisconsin, 466 U.S. 740, 748
(1984) (internal quotation marks omitted).
As such, “[i]t is a
basic principle of Fourth Amendment law that searches and seizures
inside a home without a warrant are presumptively unreasonable.”
Payton v. New York, 445 U.S. 573, 586 (1980) (internal quotation
marks omitted). Nevertheless, “this presumption may be overcome in
some circumstances because the ultimate touchstone of the Fourth
Amendment is ‘reasonableness.’”
459
(2011)
(certain
Kentucky v. King, 563 U.S. 452,
internal
quotation
marks
omitted).
Accordingly, the Supreme Court has specified certain “narrow and
well-delineated exceptions to the warrant requirement,” Flippo v.
West Va.,
protective
528
U.S.
sweep
11,
13
(1999),
exception
to
the
including
warrant
“a
well-settled
requirement,
as
enunciated by the Supreme Court in Maryland v. Buie, 494 U.S. 325
(1990),” United States v. Jones, 667 F.3d 477, 482 (4th Cir. 2012)
(parallel citations omitted).10
10 “It is equally well settled that one of the specifically
established exceptions to the requirements of both a warrant and
(continued...)
22
As the Supreme Court has explained, “[a] ‘protective sweep’ is
a quick and limited search of premises, incident to an arrest and
conducted to protect the safety of police officers or others.
It
is narrowly confined to a cursory visual inspection of those places
in which a person might be hiding.”
Buie, 494 U.S. at 327.
In
such circumstances, the Fourth Amendment permits a protective sweep
“if the searching officer possessed a reasonable belief based on
specific and articulable facts which, taken together with the
rational inferences from those facts, reasonably warranted the
officer in believing that the area swept harbored an individual
posing a danger to the officer or others.” Id. (internal quotation
marks, brackets, and citation omitted).
Importantly, though, the
Supreme Court has
emphasize[d] that such a protective sweep, aimed at
protecting the arresting officers, if justified by the
circumstances, is nevertheless not a full search of the
premises, but may extend only to a cursory inspection of
those spaces where a person may be found.
The sweep
lasts no longer than is necessary to dispel the
reasonable suspicion of danger and in any event no longer
than it takes to complete the arrest and depart the
premises.
Id. at 335-36 (footnote omitted); see also id. at 335 n.3 (“A
protective sweep is without question a ‘search,’ as was the patdown
in Terry[ v. Ohio, 392 U.S. 1, 16 (1968)]; they are permissible on
less than probable cause only because they are limited to that
10(...continued)
probable cause is a search that is conducted pursuant to consent.”
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).
23
which is necessary to protect the safety of officers and others.”).
Finally, a protective sweep remains permissible even if police
arrest an individual “just outside the residence.” Jones, 667 F.3d
at 485 n.10.
II. Analysis
A. Preliminary Matters
In moving for summary judgment, Defendants failed to address
Plaintiff’s evidence regarding the search of his apartment prior to
the search warrant’s arrival.
Instead, they argued (in full):
III. Defendants are entitled to summary judgment on
the issue of the actual search of Plaintiff’s apartment
as it was pursuant to the execution of a search warrant
obtained thirty six minutes after Plaintiff’s arrest and
served on a tenant of the apartment approximately one
hour after Plaintiff’s arrest.
Plaintiff alleges that the search of his apartment
is illegal as it was performed prior to the search
warrant being granted or served.
[Doc. 19, p. 6]
However a review of the material facts show the search of
Plaintiff’s apartment was pursuant to a search warrant
signed by a Magistrate at 9:30 a.m., after Plaintiff’s
arrest at 8:53 a.m. [Tyndall Affidavit, p. 3-4 ¶7-8]
The search warrant was presented to [Ms.] Morris at the
apartment at approximately 10:00 a.m.
[Tyndall
Affidavit, p. 4, ¶ 9] The search was completed by 10:30
a.m. [Tyndall Affidavit, p. 4, ¶ 9] This search was
carried out with a valid search warrant and therefore
carries a presumption of legality. Anglin v. Director,
439 F.2d 1342, 1346 (4th Cir. 1971)[.]
Therefore,
Defendants are entitled to summary judgment on this
issue.
(Docket Entry 34 at 10.)
Even when Plaintiff opposed summary judgment on the grounds
that Defendants “search[ed his] papers (see Judy West Affidavit and
24
Carla Morris Affidavit _ Plaintiff’s Motion to Deny Dismissal)”
(Docket Entry 42 at 4; see also id. at 5 (asserting Defendants
violated Plaintiff’s rights by searching papers without a warrant),
7 (same)), Defendants only minimally engaged with this issue (see
generally
Docket
Entry
44).
Specifically,
on
this
front,
Defendants responded, in full, as follows:
Plaintiff contends in his response that Defendants
violated his Fourth Amendment rights to privacy while
“looking through papers” while waiting on the search
warrant. [Doc. 42, p. 5 of 8] Defendants have provided
recordings from all the officers present at the scene
which shows the actions of the officers.
[Doc. # 38
Notice of Manual Filing; Doc. # 37 Affidavit of Adam
Bell]
(Docket Entry 44 at 4.)
Notwithstanding the cursory nature of Defendants’ argument on
this point, the Court may consider the fact that (as detailed
above) the body camera recordings conclusively establish that
neither Detective McPhatter nor Detective Ludemann committed the
alleged illegal search of Plaintiff’s mail.
See Fed. R. Civ. P.
56(f)(2) (permitting courts to enter summary judgment even “on
grounds not raised by a party”).11
Under these circumstances, the
11 The Court must provide “notice and a reasonable time to
respond” before granting summary judgment “on grounds not raised by
a party.” Fed. R. Civ. P. 56(f)(2). Given that objective evidence
conclusively establishes the propriety of summary judgment for
Detective McPhatter and Detective Ludemann, to the extent
necessary, this Recommendation provides the requisite notice and
opportunity.
See generally Scott v. Harris, 550 U.S. 372, 380
(2007) (instructing courts to disregard for summary judgment
purposes any version of events that “is blatantly contradicted by
(continued...)
25
Court should grant Detective McPhatter and Detective Ludemann
summary judgment on Plaintiff’s fourth-amendment claim.
B.
Detective Ludemann and Detective McPhatter
The Complaint names Detective Ludemann and Detective McPhatter
as defendants in this action (Docket Entry 2 at 1-3) and asserts
that “[D]etective McPhatter, [D]etective Altizer, and [D]etective
Ludemann[] did enter” Plaintiff’s residence “without a search
warrant and illegally obtained property” (id. at 5; see id. at 6
(same); see also id. at 5 (asserting that “Detective Matthews stood
outside the door of the residence while detectives McPhatter,
Altizer, and Ludemann detained [Ms.] Morris inside the apartment”
(superscript omitted))).
However, these unsworn assertions do not
qualify as evidence for summary judgment purposes, see Reeves, 2011
WL 4499099, at *5 n.14, and none of Plaintiff’s evidence identifies
Detective McPhatter and Detective Ludemann as the police officers
involved in any allegedly improper search of Plaintiff’s mail (see
Docket Entries 19-1 to 19-7, 43-1 to 43-5).
Instead, construed in
the light most favorable to Plaintiff, the evidence reflects only
that some male officer who participated in the protective sweep of
Plaintiff’s apartment searched Plaintiff’s mail and papers prior to
the search warrant’s arrival.
(See Docket Entries 19-1, 19-2, 43-
1.)
11(...continued)
the record, so that no reasonable jury could believe it”).
26
For instance, Ms. West’s affidavit reflects, in relevant part:
2. On December 29, 2016, [Ms. West] was living two doors
away from [Plaintiff], [her] son, and [Ms.] Morris who
lived at [a certain apartment].
3. [Ms. West] saw [Plaintiff] came out of the apartment
door with his hands up. The police grabbed him as soon
as he was about two feet (2’) outside of the apartment.
4. As soon as they grabbed [Plaintiff], approximately
three (3) police officers went into the apartment. Two
of the police officers stayed in the apartment and one
left[.]
5. The police officers told [Ms. Morris] to stay on the
couch and not to move. They would not let [Ms. West]
into the apartment.
6. It was a long time latter [sic] before another officer
came with a warrant.
7. The two (2) police officers stayed in the apartment
the entire time until the police officer came with the
warrant. The police kept the door to the apartment open.
[Ms. West] saw these police officers were looking through
papers inside the apartment during this time.
(Docket Entry 19-2, ¶¶ 2-7 (emphasis added).)12
This search,
according to Ms. West’s state-court testimony, occurred about five
minutes after officers took Plaintiff away in the patrol car. (See
Docket Entry 43-1 at 41-42.)
Similarly, the affidavit of Ms. Morris states, in relevant
part:
2. On December 29, 2016, [Ms. Morris] was living with
[Plaintiff] at [a certain apartment].
12 In her state-court testimony, Ms. West described these two
officers as “the officer lady right there [i.e., Detective Altizer]
and the male officer.” (Docket Entry 43-1 at 38.)
27
3. The police came to the
2016. After they identified
to the door with his hands
and took him outside of the
door early on December 29,
themselves, [Plaintiff] came
up. The police grabbed him
apartment.
4. Shortly afterwards, two police officers came into the
apartment. One was female and one was male. They looked
through some mail in the living room.
5. The police officers ordered [Ms. Morris] to sit on the
couch and not to move.
6. [They] waited for a long time until an older, male
police officer came with some papers.
7. The female police officer stayed in the apartment the
entire time while [they] waited. The male police officer
went out the apartment door but they kept the door open
and [Ms. Morris] could see him and he could see [her] and
into the apartment the entire time.
8. The police officers made [Ms. Morris] stay on the
couch while [they] waited. They would not let [her] move
from the couch. [Ms. Morris’s] phone rang but they told
[her] not to answer it.
9. The female and male police officers kept control of
[Ms. Morris] and the apartment during the entire time
[they] waited. They were both looking at the living room
and what was in the living room during the entire time
[they] waited.
(Docket Entry 19-1, ¶¶ 2-9.) Ms. Morris further testified that the
search of the mail occurred approximately “30 to 40 minutes” after
the officers “had removed [Plaintiff] from the scene.”
(Docket
Entry 43-1 at 46; see also id. at 45-46 (reflecting that search
occurred after “the protective sweep at the apartment” and while
awaiting Detective Tyndall’s arrival).)
The undisputed evidence reflects that Detective McPhatter did
not participate in the protective sweep of Plaintiff’s apartment.
28
(See McPhatter Video at 13:54-13:57; Docket Entry 35, ¶ 5; Docket
Entry 39, ¶ 5.)
recordings
made
Further, for the duration of the body camera
before
Detective
Tyndall’s
arrival,
Detective
McPhatter remained outside Plaintiff’s apartment (and outside of
Ms. Morris’s line of sight). (See, e.g., McPhatter Video at 13:4514:24; Altizer Video at 14:24-14:39.)
Accordingly, the evidence
conclusively excludes Detective McPhatter as “[t]he male police
officer” who, construing the evidence in the light most favorable
to Plaintiff, searched Plaintiff’s mail and/or papers without a
search warrant.
The Court should therefore grant summary judgment
to Detective McPhatter.
See Scott v. Harris, 550 U.S. 372, 380
(2007) (“When opposing parties tell two different stories, one of
which
is
blatantly
contradicted
by
the
record,
so
that
no
reasonable jury could believe it, a court should not adopt that
version of the facts for purposes of ruling on a motion for summary
judgment.”).
In contrast to Detective McPhatter, the evidence establishes
that Detective Ludemann participated in the protective sweep.
(See, e.g., Matthews Video at 13:55-13:56; Docket Entry 35, ¶ 5;
Docket Entry 39, ¶ 5.)
However, the undisputed evidence also
reflects that Detective Ludemann left the apartment about a minute
after the protective sweep, before the time of the challenged
searches.
(See Altizer Video at 13:56; Matthews Video at 13:56-
13:57; see also Docket Entry 43-1 at 38-42, 46.)
29
In other words,
of the “approximately three (3) police officers [who] went into the
apartment,” the evidence conclusively identifies Detective Ludemann
as the “one [who] left.”
(Docket Entry 19-2, ¶ 4.)
The record
further reflects that, following his departure from the apartment,
Detective Ludemann remained outside the apartment and out of Ms.
Morris’s sight for the duration of the body camera footage made
before Detective Tyndall’s arrival. (See, e.g., McPhatter Video at
13:57-14:24; Altizer Video at 13:56-14:39.)13 As such, the evidence
also definitively excludes Detective Ludemann as “[t]he male police
officer” who, construing the evidence in the light most favorable
to Plaintiff, searched Plaintiff’s mail and/or papers without a
search warrant.
The Court should therefore grant summary judgment
to Detective Ludemann.
See Scott, 550 U.S. at 380.14
13
This footage covers the time period in which Ms. West
reported the mail search occurred. (See Docket Entry 43-1 at 3842; McPhatter Video at 14:06-14:24.)
14
To the extent that Plaintiff challenges Detective
Ludemann’s participation in the protective sweep itself (see Docket
Entry 42 at 2-4), that challenge fails. The undisputed evidence
shows that Ms. Morris authorized the protective sweep. (See, e.g.,
Altizer Video at 13:54; Docket Entry 43-1 at 15-16, 25, 44.) In
his summary judgment opposition, Plaintiff contends that he
objected to the VCAT officers’ entry into his apartment prior to
Ms. Morris’s consent. (See Docket Entry 42 at 3; see also id. at
2 (asserting that, “after Plaintiff was arrested outside and
handcuffed, and officers immediately began to enter, the Plaintiff
told them to exit if they did not have a search warrant” (citing
Altizer Video)).) Plaintiff’s unsworn assertions in his opposition
do not constitute evidence, see Reeves, 2011 WL 4499099, at *5
n.14, and the video recordings reflect more ambiguity in
Plaintiff’s statements regarding the VCAT officers’ presence than
his opposition acknowledges (see, e.g., Graham Video at 13:56(continued...)
30
In sum, the record conclusively identifies Detective Matthews,
rather than Detective Ludemann or Detective McPhatter, as the “male
officer” whom Ms. West and Ms. Morris described as searching
Plaintiff’s mail and/or papers prior to Detective Tyndall’s arrival
with the search warrant.
As such, Plaintiff’s fourth-amendment
claims against Detective McPhatter and Detective Ludemann cannot
survive summary judgment.
C.
See Scott, 550 U.S. at 380.
Detective Altizer
However, the same result does not hold for Detective Altizer,
the only female among the VCAT officers involved in the events at
Plaintiff’s apartment on December 29, 2016.
Video at 13:46-14:39, 14:58-15:32.)
(See, e.g., Altizer
To begin, Ms. Morris averred
that a female officer searched Plaintiff’s mail while awaiting the
search warrant’s arrival.
(See Docket Entry 19-1, ¶¶ 4-7, 9.)
In
addition, in their state-court testimony, both Ms. Morris and Ms.
West specifically identified Detective Altizer as a participant in
the search of Plaintiff’s mail prior to the search warrant’s
arrival.
(See Docket Entry 43-1 at 38-40, 44-47.)
14(...continued)
14:06). In any event, the officers had already completed their
protective search and Detective Ludemann had already exited the
apartment prior to Plaintiff raising any concerns regarding their
presence in the apartment. (See id.; see also Altizer Video at
13:53-13:56.)
Accordingly, Plaintiff lacks a viable fourthamendment claim regarding Detective Ludemann’s (and, for that
matter, Detective Altizer’s) participation in the protective sweep.
31
Moreover, Ms. Morris testified that the search occurred “at
least about 30 to 40 minutes” after the police “removed [Plaintiff]
from the scene.”
(Id. at 46.)
The body camera recordings reflect
that the patrol car took Plaintiff away at approximately 9:09 a.m.
(see Graham Video at 14:09), which would mean the asserted search
occurred around 9:39 a.m. to 9:49 a.m. (Docket Entry 43-1 at 46).
No video evidence exists from the scene for all but a few seconds
of this period.
Accordingly, at least with respect to the search
that Ms. Morris identified, objective evidence cannot resolve the
dispute between Ms. Morris’s testimony and Detective Altizer’s
testimony.
Cf. Scott, 550 U.S. at 380.
Nor, although it remains a closer question, does the evidence
“blatantly
contradict[],”
id.,
Ms.
West’s
testimony
regarding
Detective Altizer. Admittedly, the video evidence confirms that no
male officer entered Plaintiff’s apartment during the time period
when Ms.
West
testified
that
Detective
Altizer
and
her
male
colleague “had the mail in their hand looking at the mail” (Docket
Entry 43-1 at 42) on the kitchen bar.
(See Altizer Video 14:00-
14:39; McPhatter Video 14:00-14:24; Friel Video at 14:01-14:33;
Docket Entry 43-1 at 38-42.)
The video recordings further reflect
both that Ms. West walked away from the scene around the time that
Detective Altizer approached the kitchen bar and that, for at least
part of the time Detective Altizer remained near the kitchen bar,
she kept her hands at or near her vest, devoid of mail.
32
(See
Altizer Video at 14:13-14:15; McPhatter Video at 14:13-14:15.)
Finally, Ms. Morris testified that Detective Altizer did not search
Plaintiff’s
apartment
when
she
first
came
to
stand
in
it.
(See Docket Entry 43-1 at 46.)
Nevertheless, the video evidence, which does not show Ms.
West’s location or Detective Altizer’s hands and actions for the
entire period in question, does not clearly disprove Ms. West’s
testimony regarding Detective Altizer.
(See Altizer Video at
14:13-14:15; McPhatter Video at 14:13-14:15.)
In addition, the
video recordings reflect that Ms. Morris remained looking downward,
with her hand in front of her eyes, during at least part of the
time Detective Altizer remained near the kitchen bar (see Altizer
Video at 14:13-14:15), a potential reason for the discrepancy
between Ms. Morris’s and Ms. West’s description of events.
In any
event, because the video recordings do not “blatantly contradict[]”
Ms. West’s “version of events,” Scott, 550 U.S. at 380, the Court
cannot completely discount her testimony for summary judgment
purposes. See, e.g., Kane v. Beaufort Cty. Sheriff’s Dep’t, No. CA
9:14-508, 2015 WL 404570, at *5 (D.S.C. Jan. 29, 2015) (“[B]ecause
certain relevant details of the encounter are not visible on the
video available, and because they are not offered as true by the
[p]laintiff, the Court cannot rely on [the d]efendants’ description
of the events for purposes of its summary judgment analysis.”);
Godfrey v. Faulkner, No. 7:13cv454, 2015 WL 302841, at *4-5 (W.D.
33
Va. Jan. 23, 2015) (denying summary judgment where “[t]he video
footage in the record . . . is not so entirely inconsistent with
[the plaintiff’s] account of the officers’ conduct that [the court]
can completely discount his version of events” and “the video
cameras did not record all events”).
Accordingly,
whether,
without
a
material
consent,
factual
Detective
dispute
exists
Altizer
(twice)
regarding
searched
through Plaintiff’s mail (A) after Plaintiff’s removal from the
scene, (B) after clearing the apartment for other people, and
(C) prior to the arrival of a search warrant, a dispute which, if
resolved against Detective Altizer, would support a finding that
she violated the Fourth Amendment.
See Buie, 494 U.S. at 335-36;
Payton, 445 U.S. at 586 (“It is a basic principle of Fourth
Amendment law that searches and seizures inside a home without a
warrant are presumptively unreasonable.” (internal quotation marks
omitted)); United States v. Laudermilt, 677 F.3d 605, 610 (4th Cir.
2012) (“A protective sweep is limited to a cursory inspection of
those spaces where a person may be found and should last no longer
than it takes to complete the arrest and depart the premises.”
(internal quotation marks omitted)); see also Chimel v. California,
395 U.S. 752, 767 (1969) (“After arresting a man in his house, to
rummage at will among his papers in search of whatever will convict
him, appears to us to be indistinguishable from what might be done
under a general warrant; indeed, the warrant would give more
34
protection, for presumably it must be issued by a magistrate.”
(internal quotation marks omitted)).15
Nevertheless, Defendants maintain that qualified immunity
shields Detective Altizer from Plaintiff’s claim.
Entry 34 at 10-12; Docket Entry 44 at 7-8.)
(See Docket
“To establish a
qualified-immunity defense, a public official must demonstrate that
(1) a plaintiff has not alleged or shown facts that make out a
violation of a constitutional right, or that (2) the right at issue
was
not
‘clearly
violation.”
established’
at
the
time
of
its
alleged
Owens v. Baltimore City State’s Attorneys Office, 767
F.3d 379, 395–96 (4th Cir. 2014) (internal quotation marks and
brackets omitted).
However, “[i]f a plaintiff has alleged a
clearly established right, summary judgment on qualified immunity
grounds is improper as long as there remains any material factual
dispute regarding the actual conduct of the defendants.” Buonocore
v. Harris, 65 F.3d 347, 359-60 (4th Cir. 1995).
“the
defendant’s
entitlement
to
immunity
In other words, if
turns
on
a
factual
dispute, that dispute is resolved by the jury at trial.”
ACLU of
Md., Inc. v. Wicomico Cty., 999 F.2d 780, 784 (4th Cir. 1993).
15
To the extent Plaintiff challenges the seizure of his
apartment pending the arrival of the search warrant and the
subsequent seizure of a firearm therein (see Docket Entry 42 at 4),
those contentions lack merit under the circumstances, which reflect
(1) that officers seized the apartment for at most one hour pending
the arrival of the search warrant and (2) that the officers
discovered the firearm during the search of Plaintiff’s apartment
conducted after the search warrant’s arrival. See generally Segura
v. United States, 468 U.S. 796 (1984).
35
Here, construed in the light most favorable to Plaintiff, the
evidence reflects that, following Plaintiff’s arrest and removal
from the premises, Detective Altizer searched Plaintiff’s mail
without a warrant.
Such conduct violates clearly established
fourth-amendment law.
See, e.g., Schneckloth v. Bustamonte, 412
U.S. 218, 219 (1973) (“It is well settled under the Fourth and
Fourteenth Amendments that a search conducted without a warrant
issued upon probable cause is ‘per se unreasonable . . . subject
only
to
a
few
specifically
established
and
well-delineated
exceptions.’” (ellipsis in original)); see also, e.g., Buie, 494
U.S. at 335-36 (explaining that “a protective sweep, aimed at
protecting
the
arresting
officers,
if
justified
by
the
circumstances, is nevertheless not a full search of the premises,
but may extend only to a cursory inspection of those spaces where
a person may be found” and may last “no longer than it takes to
complete the arrest and depart the premises”).
Accordingly,
Detective Altizer has not established her entitlement to qualified
immunity.
In sum, the Court should deny Detective Altizer’s request for
summary judgment.
See, e.g., Godfrey, 2015 WL 302841, at *5
(“Because genuine issues of material fact thus remain in dispute,
[the defendants] have not established that they are entitled to
summary judgment on the ground of qualified immunity or on the
merits of [the plaintiff’s constitutional] claims.”).
36
CONCLUSION
Objective evidence conclusively establishes that Detective
McPhatter and Detective Ludemann did not participate in the alleged
illegal searches of Plaintiff’s mail.
However, material factual
disputes exist regarding Detective Altizer’s participation in such
activity.
IT IS THEREFORE RECOMMENDED that the Summary Judgment Motion
(Docket Entry 33) be granted in part and denied in part as follows:
summary judgment be granted to Detective McPhatter and Detective
Ludemann, but denied to Detective Altizer on Plaintiff’s fourthamendment claim for illegal searches of his mail.
This 23rd day of June, 2020.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
37
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