YOUNG v. HANSEN
Filing
35
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE JOI ELIZABETH PEAKE signed on 7/26/2019. RECOMMENDED that Defendant's Motion for Summary Judgment (Doc. # 28 ) be granted and that this action be dismissed. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JAMES JETER JR YOUNG,
Plaintiff,
v.
L.R. HANSEN,
Defendants.
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1:17CV1064
MEMORANDUM OPINION AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
This is a pro se civil rights action filed under 42 U.S.C. § 1983 by Plaintiff James Jeter Jr
Young, an inmate in the North Carolina Department of Public Safety. His central allegations
in this case are that Defendant L.R. Hansen, a police officer in Winston-Salem, North
Carolina, improperly seized and searched his cellular telephones. Defendant filed a Motion
for Summary Judgment [Doc. #28] which Plaintiff opposes.
I.
Allegations and Facts
Plaintiff’s Complaint makes only sparse factual allegations.
Plaintiff claims that
Defendant seized his cellular telephones on a ramp to an interstate highway in Winston-Salem
at approximately 10:00 p.m. on March 24, 2017. (Complaint [Doc. #2] § IV.) Plaintiff states
that Defendant justified the seizure by stating that the phones might reveal evidence related
to a crime. (Id.) In an attachment to the Complaint, Plaintiff adds an allegation that Defendant
seized the phones without a warrant and without any information related to criminal activity.
(Id., Attach.) He states that Defendant later procured a search warrant for the phones, but
that the warrant was not executed within 48 hours, as required by the warrant, which renders
the search warrantless. (Id.) Plaintiff contends that the seizure and subsequent search of his
phones violated his rights under the constitutions of both the United States and the State of
North Carolina. (Id. § II(B).)1 Based on this contention, he asserts a claim against Defendant
in his individual capacity seeking damages in the amount of $50,000. (Id. §§ I(B), VI.)
In support of his Motion for Summary Judgment, Defendant filed an Affidavit
(Defendant’s Brief [Doc. #29], Attach. 1) with supporting exhibits. In that document,
Defendant explains the circumstances that led to the seizure and search of Plaintiff’s phones.
On March 24, 2017, Defendant and another officer were conducting surveillance on a house
where a heroin overdose had occurred the night before. (Id. ¶ 6.) They observed a vehicle
enter the driveway and stay for a few minutes with the lights on and the driver (later
determined to be Plaintiff) remaining in the car. (Id.) Defendant used the license tag to check
the vehicle’s records and discovered that the owner was deceased, the registration expired, and
the insurance policy terminated. (Id.)
The vehicle left the residence and Defendant followed along with another officer, while
radioing officers in the area to request assistance in stopping the vehicle for the insurance and
registration violations. (Id. ¶ 7.) When the other officers were in place, Defendant stopped
the vehicle on the ramp leading to eastbound Interstate 40. (Id.)
1
Regarding Plaintiff’s claims under the United States Constitution, Plaintiff cites the Fourth, Fifth, Eighth,
Ninth, and Fourteenth Amendments as having been violated. The facts of his claim clearly attempt to raise a
claim under the Fourth Amendment, which covers searches and seizures, and the Fourteenth Amendment,
through which the Fourth Amendment extends to the States. However, nothing in the Complaint implicates
the Fifth (indictment, double jeopardy, self-incrimination, federal due process, taking of private property for
public use), Eighth (cruel and unusual punishment, excessive fines and bail), or Ninth (reservation of rights not
enumerated) Amendments.
2
Two men occupied the front seat of the stopped automobile and Defendant
approached the passenger side of the car as another officer approached the driver’s side. (Id.
¶ 8.) Defendant recognized the passenger, Christopher Martin, as the person who had
reported the heroin overdose the night before. (Id. ¶ 9.) Defendant informed Plaintiff of the
reason for the stop and requested his license and the vehicle registration. (Id.) When Plaintiff
looked at Martin and indicated that he did not know the location of the registration, Defendant
asked who owned the vehicle. (Id.) Martin stated that the vehicle belonged to his deceased
mother and reached to open the glove box for the registration. (Id.) At that point, Defendant
noticed “track marks” on Martin’s arms, a sign of heroin use. (Id.) Martin also looked
extremely thin, pale, and unhealthy, which Defendant believed typical of a heroin user. (Id.
¶¶ 10-11.)
Martin could not find the registration and Plaintiff, when asked a second time for a
driver’s license, admitted that he did not have one and produced a North Carolina
identification card. (Id. ¶ 12.) Defendant asked Martin to step out of the vehicle, Martin
complied, and Defendant asked if he was ok with talking to him, and Martin replied that he
was. (Id.) Defendant asked him about the track marks, to which Martin answered that he
used heroin and opiate pills. (Id.) After Martin consented to a search of his person for drugs,
which revealed nothing, Defendant then asked for consent to search the vehicle, and Martin
gave consent. (Id.) Defendant instructed another officer, Officer Ferguson, to have Plaintiff
exit the vehicle so that the search could be conducted. (Id.) He thereafter heard something
of a confrontation between Ferguson and Plaintiff and was informed shortly afterward that
Ferguson had found a plastic bag of drugs on Plaintiff’s person. (Id.) Plaintiff was then
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arrested. (Id.) Defendant handcuffed Martin for officer safety and proceeded to search the
vehicle. (Id. ¶ 13.) Defendant located half a bottle of tequila on the passenger side, drug
paraphernalia belonging to Martin in the glove box, and three cellular telephones on the
driver’s seat. (Id.) After Martin told Defendant that the phones belonged to Plaintiff,
Defendant seized them as evidence. (Id.)
Defendant arrested Martin, who then waived his rights and consented to a search of
his residence, which had been the house under observation after the overdose. (Id. ¶¶ 14, 15.)
He advised that his cousin, Joshua Clifton, who had been the overdose victim the night before,
was there. (Id. ¶ 14.) Officers transported Martin and Plaintiff back to the residence, where
Clifton cooperated with the search. (Id. ¶ 16.) This uncovered drug paraphernalia and other
evidence. (Id.) Officers transported Martin and Plaintiff to jail, where both men waived their
right to remain silent and spoke with officers. (Id. ¶¶ 18, 19.) Martin stated that he loaned his
vehicle to Plaintiff in exchange for heroin and that Plaintiff used the vehicle to distribute drugs
throughout the city. (Id. ¶ 18.) He described Plaintiff as the “go-to guy” for heroin in
Winston-Salem. (Id.) Plaintiff admitted to possessing the heroin found on his person and to
being a heroin dealer. (Id. ¶ 19.) He stated that he procured heroin in Washington, D.C. and
that he bought it $10,000 at a time, but refused to name the source of the heroin. (Id.)
After the interviews, Defendant used the information to procure arrest warrants for
Plaintiff and Martin. (Id. ¶ 20.) On April 7, 2017, Defendant also sought and received a search
warrant allowing a search of Plaintiff’s seized telephones. (Id. ¶ 22.) Defendant retrieved the
phones from evidence storage and took them to a police investigator, who then searched them.
(Id. ¶¶ 24-26.) Defendant thereafter returned the warrant to the issuing magistrate. (Id. ¶ 27.)
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That warrant is attached as an exhibit to both Plaintiff’s Complaint and Defendant’s Affidavit.
It reflects that it was issued at 11:42 a.m. on April 7, 2017 and returned executed on that same
day at 1:16 p.m. A box on the warrant is also checked indicating that the warrant was not
executed within 48 hours of its issuance and that it was being returned unexecuted. Defendant
states that the checking of this box was a mistake by “[s]omeone.” (Id. ¶ 29.) Plaintiff later
pled guilty to heroin trafficking charges. (Id. ¶ 30.)
II.
Summary Judgment Standard
Summary judgment is appropriate when no genuine issue of material fact exists. Shealy
v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). A genuine issue of fact exists if the evidence
presented could lead a reasonable fact-finder to return a verdict in favor of the non-moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A court considering a
motion for summary judgment must view all facts and draw all reasonable inferences from the
evidence before it in a light most favorable to the non-moving party. Id. The proponent of
summary judgment “bears the initial burden of pointing to the absence of a genuine issue of
material fact.” Temkin v. Frederick County Comm’rs, 945 F.2d 716, 718 (4th Cir. 1991) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). If the movant carries this burden, then
the burden “shifts to the non-moving party to come forward with facts sufficient to create a
triable issue of fact.” Id. at 718-19 (citing Anderson, 477 U.S. at 247-48). A mere scintilla of
evidence supporting the non-moving party’s case is insufficient to defeat a motion for
summary judgment. See, e.g., Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994); see also
Anderson, 477 U.S. at 248 (non-moving party may not rest upon mere allegations or denials.)
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III.
Discussion
A.
Initial Traffic Stop
Plaintiff’s Complaint does not appear to directly challenge the initial stop of the vehicle
driven by Plaintiff. However, in his Response [Doc. #32] and Reply Brief [Doc. #34] to the
Motion for Summary Judgment, Plaintiff does appear to raise such a challenge. He argues that
Defendant did not have the requisite level of suspicion of criminal activity to make the stop
and that the stop was really a pretext to attempt to discover contraband. This argument fails
in short order. “The Fourth Amendment is satisfied if the officer’s action [in stopping a
vehicle] is supported by reasonable suspicion to believe that criminal activity ‘may be afoot.’”
United States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting United States v. Sokolow, 490 U.S.
1, 7 (1989)). Further, “the decision to stop an automobile is reasonable where the police have
probable cause to believe that a traffic violation has occurred.” Whren v. United States, 517
U.S. 806, 810 (1996). If such probable cause exists, it does not matter whether or not the stop
is a pretext for further investigation as long as the scope of the stop is reasonable. Id. at 813;
United States v. Palmer, 820 F.3d 640, 649 (4th Cir. 2016) (“In assessing the legitimacy of a
traffic stop, we do not attempt to discern an officer’s subjective intent for stopping the
vehicle.”) Here, evidence not in dispute shows that Defendant observed the vehicle that
Plaintiff was driving, checked it via its license tag, and determined that the owner was deceased,
the registration expired, and the insurance policy terminated. This information concerning
possible traffic violations provided more than sufficient probable cause for Defendant to make
the initial stop to investigate the violations. See United States v. Walker, 575 F. App’x 146,
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148 (2014); State v. Washington, 193 N.C. App. 670, 678, 668 S.E.2d 622, 627 (2008). Any
claim otherwise by Plaintiff fails and should be denied.
B.
Seizure of Plaintiff’s Cellular Telephones
The next issue raised by Plaintiff is the legality of Defendant’s seizure of his cellular
telephones. He contends that Defendant did not have probable cause to seize the phones
during the traffic stop and/or that he should have procured a warrant before seizing them.
Again, his arguments quickly fail. Numerous courts have noted the strong connection
between drug dealing and the potential presence of evidence of that dealing located on cellular
phones possessed by the dealer or found near drugs. See United States v. Harris, Crim No.
3:15cr170, 2016 WL 1441382, at *12 (E.D. Va. April 11, 2016) (unpublished) (collecting cases),
aff’d 688 F. App’x 223 (4th Cir. 2017), cert. denied, 138 S. Ct. 436 (2017). The link is even
stronger where one individual connected to drugs possesses multiple phones. United States
v. Peterson, Crim. Action No. 3:18-cr-90-JAG-1, 2019 WL 1793138, at *12 (E.D. Va. April
24, 2019) (unpublished). Here, the undisputed evidence shows that Defendant discovered the
phones while conducting a search of the car pursuant to consent given by Martin, the car’s
owner, or at least the person with ultimate control of the car. Plaintiff does not set out any
argument challenging Defendant’s ability to search based on Martin’s consent to the search.
Further, by the time Defendant discovered the phones lying in the driver’s seat of the car that
Plaintiff had been driving, another officer had already discovered a bag of drugs on Plaintiff’s
person and Plaintiff was being arrested based on those drugs. Upon discovery of the phones
by Defendant, Martin indicated that they belonged to Plaintiff. Defendant then had ample
probable cause to believe that the phones might contain evidence of Plaintiff’s drug dealing.
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As for then seizing the phones without a warrant, this was also not improper, as it allowed
Defendant to secure the phones “‘to prevent destruction of evidence while seeking a warrant’”
to search them. Harris, 2016 WL 1441382, at *12 (quoting Riley v. California, 573 U.S. 373,
388 (2014)). Importantly, Petitioner did not search the information on the phones without a
warrant, which would have been improper under Riley. See Riley, 573 U.S. at 401-02 (holding
that even a properly seized cell phone cannot ordinarily be searched without a warrant). As
discussed next, Defendant did obtain such a warrant before conducting a search of Plaintiff’s
phones. His initial seizure of the phones did not violate Plaintiff’s Fourth Amendment rights.
C.
Search of Plaintiff’s Cellular Phones
The last issue raised by Plaintiff is whether or not Defendant’s search of the seized
phones violated his constitutional rights. Plaintiff asserts that, although Defendant procured
a warrant, he did not execute it within 48 hours of its issuance, and that the search of the
phones was essentially warrantless. This bare assertion by Plaintiff is not supported by
sufficient facts to survive summary judgment. Plaintiff’s entire case rests on the box checked
on the face of the warrant indicating that the warrant was not executed within 48 hours of its
issuance and that it was, therefore, being returned unexecuted. This box stands in contrast to
three other pieces of information present on the face of the warrant. One is a section of the
warrant stating that the warrant “was received and executed as follows” with dates and times
then entered indicating that the warrant was issued on April 7, 2017 at 11:42 a.m. and executed
that same day at 1:16 p.m. The second is a handwritten statement immediately below that
indicating that Defendant made a search of three cell phones. Third, the warrant is signed by
the issuing state magistrate as being issued on April 7, 2017 and returned at 1:16 p.m. that
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same day. Moreover, Defendant confirms that the search of the phones was indeed conducted
as indicated in the more detailed portions of the warrant and that the check box indicating
that the warrant was being returned unexecuted is an error. He provides further specific details
concerning the conducting of the search pursuant to the warrant and the return of the warrant.
Plaintiff provides no evidence on the matter and points to nothing beyond the check box
supporting his allegations. In the circumstances, Plaintiff has failed to present a genuine issue
of material fact sufficient to overcome Defendants Motion for Summary Judgment on this
issue.
In Plaintiff’s Reply Brief [Doc. #34], he raises one final argument by asserting that the
search of his phones was invalid because he was not presented with a copy of the warrant
before the search occurred. Even if true, this allegation does not support any claim for relief.
The Fourth Amendment does not require an officer to serve a search warrant
before executing it. See Groh [v. Ramirez], 540 U.S. [551] at 562 n. 5, 124 S.Ct.
1284. In fact, the Fourth Amendment is not offended where the executing
officer fails to leave a copy of the search warrant with the property owner
following the search, see United States v. Simons, 206 F.3d 392, 403 (4th Cir.
2000), or fails even to carry the warrant during the search, see Mazuz v.
Maryland, 442 F.3d 217, 229 (4th Cir. 2006).
United States v. Hurwitz, 459 F.3d 463, 470 (4th Cir. 2006). Defendant’s Motion for Summary
Judgment should be granted as to Plaintiff’s claims under the United States Constitution.
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D.
Qualified Immunity
Defendant also raises the defense of qualified immunity. Qualified immunity shields
government officials from liability for their conduct, provided “their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Based upon the findings above, the
Court concludes that there are no material facts in dispute and that Defendant’s conduct did
not result in a violation of Plaintiff’s constitutional rights with respect to the seizure and
subsequent search of the cellular telephones. Even absent such a finding, Defendant’s conduct
was not clearly proscribed such that a reasonable person would have understood that his
conduct violated Plaintiff’s Fourteenth Amendment rights.
His Motion for Summary
Judgment should be granted for this additional reason.
E.
Claims Under the North Carolina Constitution
In addition to Plaintiff’s claims under the United States Constitution, Plaintiff also
attempts to raise a claim under the North Carolina Constitution against Defendant in his
individual capacity. However, there is no direct cause of action against individual defendants
under the North Carolina Constitution. Corum v. Univ. of North Carolina, et al., 330 N.C.
761, 787-88, 413 S.E.2d 276, 292-93 (1992); see also Love-Lane v. Martin, 355 F.3d 766, 789
(4th Cir. 2004). In addition, when analyzing search and seizure claims under the North
Carolina Constitution, courts generally apply the same standards as are applied to Fourth
Amendment claims under the United States Constitution. See e.g., Sunkler v. Town of Nags
Head, No. 2:01-CV-22-H(2), 2002 WL 32395571 at *3 (E.D.N.C. May 17, 2002)
(unpublished), aff’d 50 F. App’x 116 (2002); State v. Bromfield, 332 N.C. 24, 39, 418 S.E.2d
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491, 499 (1992); State v. Arrington, 311 N.C. 633, 643-44, 319 S.E.2d 254 (1984). Therefore,
even if Plaintiff could raise a claim under the North Carolina Constitution, it would fail for
the same reasons set out above in relation to his federal claims. Defendant’s Motion for
Summary Judgment should be granted as to this claim as well.2
IT IS THEREFORE RECOMMENDED that Defendant’s Motion for Summary
Judgment [Doc. #28] be granted and that this action be dismissed.
This, the 26th day of July, 2019.
/s/ Joi Elizabeth Peake
United States Magistrate Judge
2
The Court also notes that, to the extent Plaintiff’s claims may be an attempt to call his criminal convictions
into question, the claims would be barred under Heck v. Humphrey, 512 U.S. 477 (1994), absent a showing
that the convictions had been separately vacated.
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