SIMMERS v. ELO et al

Filing 42

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE WENDY BEETLESTONE ON 3/18/2016. 3/18/2016 ENTERED AND COPIES E-MAILED.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JAMES SIMMERS,

CIVIL ACTION
Plaintiff,

v.
JAMES ELO; MIKE KELLY; TIMOTHY
DEERY; JOSE COLLAZO; JAMES W.
AVERY; JOSEPH RALSTON; ANDREW
KELLY; NEHEMIAH HAIGLER; JOHN
BRENNAN; AVRIL EKLUND; TIMOTHY
RILEY; and JOHN AND JANE DOES 1-25,
Defendants.

NO. 14-6609

Plaintiff James Simmers, whose ownership of a salvage yard and his enthusiasm for
motorcycles is peculiarly relevant here, brings this civil rights action against eleven agents of the
Pennsylvania Office of Attorney General’s Bureau of Narcotics Investigation based upon his
arrest for narcotics offenses in November 2012. The arrest followed a lengthy investigation into
a methamphetamine ring culminating in a grand jury which took extensive testimony and
evidence before recommending that charges be brought against Plaintiff and twenty-six other
people. Just over a year after the arrests, after every one of those charged – except Plaintiff –
had pled guilty, the prosecutor dropped the case against him. The nub of Plaintiff’s complaint is
that he was caught up in the investigation when agents who had tapped the telephone of a suspect
concluded that a conversation Plaintiff had with the suspect about supplying motorcycle parts
was in fact a coded discussion about drugs. The Defendants have filed a motion for summary
judgment on all of Plaintiff’s remaining claims.
PROCEDURAL POSTURE
Plaintiff’s complaint, brought under the rubric of 42 U.S.C. § 1983, sought damages and
injunctive relief for unlawful arrest (Count I), unjustified search (Count III), and malicious

prosecution (Count V), as well as state law claims for false imprisonment (Count II) and
intentional infliction of emotional distress (Count IV). The Court dismissed the state law claims
on Plaintiff’s concession in his motion to dismiss that those claims were barred by the doctrine of
sovereign immunity. Now, in the context of Defendants’ Motion for Summary Judgment,
Plaintiff contests only the dismissal of his claim for unlawful arrest against Defendants James
Elo, Timothy Deery and Jose Collazo.
SUMMARY JUDGMENT STANDARD
In ruling on a summary judgment motion, a court must “view the facts and draw
reasonable inferences ‘in the light most favorable to the party opposing the [summary
judgment].’” Scott v. Harris, 550 U.S. 372, 378 (2007) (alteration in original) (quoting United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). “[S]ummary judgment is appropriate where
there is no genuine issue as to any material fact and the moving party is entitled to a judgment as
a matter of law.” Alabama v. North Carolina, 560 U.S. 330, 344 (2010) (citations and internal
quotation marks omitted). “A genuine issue is present when a reasonable trier of fact, viewing
all of the record evidence, could rationally find in favor of the non-moving party in light of his
burden of proof.” Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007) (citations
omitted). “The non-moving party may not merely deny the allegations in the moving party’s
pleadings; instead he must show where in the record there exists a genuine dispute over a
material fact.” Id. 480 F.3d at 256 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-26
(1986)).
FACTS
For the most part the facts at issue here are undisputed. In 2010 the Pennsylvania Office
of Attorney General Bureau of Narcotics Investigation began an investigation into a

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methamphetamine distribution ring, which culminated in charges against Plaintiff and twenty-six
other individuals in November 2012. Joint Appendix (“JA”) 37-38 (Elo Dep. at 5:16-7:12); JA
111 (Rongaus Decl. ¶¶ 25-26). James Elo was the lead agent on the investigation working with
Agents Timothy Deery and Jose Collazo. JA 109 (Rongaus Decl. ¶ 6). Agent Elo has ten years
of narcotics investigations work under his belt and, in the course of his duties, has personally
made undercover purchases of methamphetamine and other drugs, arranged hundreds of others
using confidential informants, and listened to hundreds or possibly thousands of wiretapped
conversations. JA 37-43 (Elo Dep. at 5:10-15, 7:7:23-25, 13:18-24, 26:2-16).
In this case, the investigation involved controlled buys by both undercover law
enforcement officers as well as a confidential informant, physical surveillance and, eventually,
court-authorized interceptions of phone calls made on phones associated with members of the
drug ring. JA 37-39 (Elo Dep. at 6:1-15:21); JA 74 (Deery Dep. at 33:7-15). One of the phones
tapped belonged to a Francis Gulich. JA 39 (Elo Dep. at 11:12-19). Based upon the progress of
the investigation up to that point, Agent Elo had determined that Gulich was a large scale
methamphetamine dealer with another man, Sim Bradley, acting as his supplier. JA 40, 41, 4647 (Elo Dep. 15:10-18, 21:9-15, 41:25-42:7). During the time period in which his phone calls
were being intercepted, Gulich owned a garage at which he serviced motorcycles. JA 72 (Deery
Dep. at 22:20-23:16, 24:9-19), JA 42 (Elo Dep. at 24:25-25:5).
In monitoring Gulich’s phone, the agents noticed that Gulich made several calls to
Plaintiff. In light of their experience that drug dealers, for fear of wire taps, frequently use coded
language in their phone communications, the agents’ suspicions were aroused when, during
several of those calls, Plaintiff asked Gulich for “a part.” JA 39 (Elo Dep. at 12:17-13:17; 13:1824); JA 72-73, 75-76 (Deery Dep. at 25:7-28:12;37:24-38:18); JA 96 (Collazo Dep. at 14:6-18).

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In one call when Plaintiff asked Gulich for a part, Gulich said he had it in his pocket. JA 40 (Elo
Dep. at 16:3-4). In another, when Plaintiff asked Gulich for a part, Gulich told him he should
hurry because they were going quick. JA 40 (Elo Dep. at 16:5-8). In yet another call, Plaintiff
told Gulich that someone is “being a pain in the balls” at which point Gulich told Plaintiff he
went to see Sim Bradley (“Mr. B”) and that he should tell his “buddy it will be worth the wait.”
JA 41 (Elo Dep. at 19:10- 17). Agent Elo testified that he understood this to mean that Plaintiff’s
customer was complaining about the quality of the methamphetamine and that Gulich was
assuring Plaintiff the next batch would be better. JA 148 (Grand Jury (“GJ”) Presentment at
340); JA 41 (Elo Dep. at 19:22-20:3). Plaintiff also told Gulich during one of the calls that he
had some “paper” for him, a word that Elo testified is commonly used by drug dealers and their
customers to refer to money. JA 39 (Elo Dep. at 13:5-17); JA 95 (Collazo Dep. at 12:5-6).
Defendants did not believe that every single phone conversation between Gulich and Plaintiff
was about drugs – some of them, they accept, were about motorcycles. JA 72 (Deery Dep. at
25:21-24), JA 42 (Elo Dep. at 24:18-24). For his part, Plaintiff does not dispute that the calls
took place, but he denies that any of the conversations concerned drugs and points out that the
only words used by Plaintiff of which Defendants were suspicious were the words “part” and
“paper.” JA 39-40 (Elo Dep. at 13:25-14:8).
In March 2011, an investigating grand jury was empaneled and, between March 2011 and
October 2012, was presented with testimony and evidence regarding the investigation. Members
of the grand jury were also permitted to ask witnesses questions. JA 109 (Rongaus Decl. ¶¶ 7, 8,
10). The only person to testify specifically about Plaintiff during this process was Agent Elo.
JA 109 (Rongaus Decl. ¶ 12); JA 142-43 (GJ Presentment at 33-34).

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On October 17, 2012, the grand jury issued a presentment which recommended charges
against twenty-six people, including Plaintiff. JA 153-60 (GJ Presentment at 39-46). The
recommended charges against Plaintiff were: (1) Violations of the Controlled Substance, Drug,
Device and Cosmetic Act; (2) Criminal Conspiracy to commit violations of the Controlled
Substance, Drug, Device and Cosmetic Act; (3) Corrupt Organizations; and, (4) Criminal Use of
a Communication Facility. JA 159-60 (GJ Presentment at 45-46). On October 23, 2012, the
grand jury’s supervising judge issued an order accepting the presentment and authorized the
prosecution of the charges as set forth in the presentment. JA 113 (Order Accepting Presentment
No. 55). Elo then drafted a criminal complaint and arrest warrant for Plaintiff listing the offenses
in the grand jury presentment. JA 163-65 (Criminal Complaint and Arrest Warrant); JA 110
(Rongaus Decl. ¶ 22). Included was an affidavit of probable cause which incorporated the
attached grand jury presentment. JA 166-67 (Criminal Complaint and Arrest Warrant); JA 110
(Rongaus Decl. ¶ 22). Agent Collazo also signed off on the criminal complaint and affidavit. JA
166-67 (Complaint and Arrest Warrant); JA 97 (Collazo Dep. at 18:6-23). On November 26,
2012, a magisterial district court judge signed the criminal complaint and warrant for Plaintiff’s
arrest. JA 162 (Criminal Complaint and Arrest Warrant); JA 111 (Rongaus Decl. ¶ 22).
Early the next morning, Plaintiff was arrested at his home in Levittown, Pennsylvania,
pursuant to the warrant and was taken to the Bristol Township Police Department where bail was
set. JA 3, 4, 14, 15 (Pl. Dep. at 9:8-14; 13:2-4; 53:25-54:4-11). He was jailed and remained
incarcerated until he posted bail on or about December 5, 2012. JA 15 (Pl. Dep. at 55:22-25).
Plaintiff thereafter waived his preliminary hearing. JA 15 (Pl. Dep. at 56:13-19). In December
2013, prosecutors dropped the charges against him. JA 169 (Dugan Decl.¶ 10).

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ANALYSIS
Plaintiff’s claims arise from his contention that his rights under the Fourth Amendment of
the United States, which protects individuals from unreasonable searches and seizures, were
violated when he was arrested. Pl. Opp’n at 5-6; U.S. Const. amend IV. The proper inquiry in a
Section 1983 case based on a claim of false arrest is not whether the person arrested did in fact
commit the crime, but rather, “whether the arresting officers had probable cause to believe the
person arrested had committed the offense.” Dowling v. City of Philadelphia, 855 F.2d 136, 141
(3d Cir. 1988). Generally, the question of probable cause in a Section 1983 case is one for the
jury. Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 788 (3d Cir. 2000). On a summary
judgment motion, however, a court may conclude “that probable cause exists as a matter of law
if the evidence, viewed most favorably to Plaintiff, reasonably would not support a contrary
factual finding. . . .” Id. 788-79 (citing Sherwood v. Mulvihill, 113 F.3d 396, 401 (3d Cir.
1997)).
In evaluating the record, the Court must take a “common sense” approach, looking to the
totality of the circumstances and asking whether the facts and circumstances known to the officer
at the time of the arrest are sufficient in themselves to warrant a reasonable person to believe that
an offense had been committed. Cosby v. Magnotta, Civ. A. No. 1881, 2014 WL 694998 (M.D.
Pa. Feb. 24, 2014) (citing United States v. Cruz, 910 F.2d 1072, 1076 (3d Cir. 1990)). Thus, it is
the function of this Court to determine whether the objective facts available to Defendants at the
time of Plaintiff’s arrest were sufficient to justify a reasonable belief that he committed the
crimes for which he was charged.
Looking at the totality of the circumstances here, Plaintiff was charged after agents had
conducted an extensive investigation, after a grand jury heard testimony and took evidence over

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an eighteen month period, after the grand jury had issued a presentment, and after the
supervising judge of the grand jury had authorized the prosecution of the charges. He was
arrested pursuant to a warrant that had been approved by a magisterial district court judge who
had been provided by Defendant Elo and Collazo with an affidavit of probable cause which
incorporated the attached grand jury presentment.
A grand jury presentment concerning the crimes for which Plaintiff was arrested
“constitutes prima facie evidence of probable cause” that may be rebutted “by evidence that the
presentment was procured by fraud, perjury or other corrupt means.” Rose v. Bartle, 871 F.2d
331, 353 (3d Cir. 1989). Plaintiff does not point to any evidence in the record that the
Defendants engaged in fraudulent or corrupt conduct or committed perjury. Absent such
evidence – along the lines of who lied, what they lied about, what portions of the presentment
were falsified, who committed fraud and how – the presumption of probable cause that arises
from a grand jury’s presentment remains. Id. at 354.
Plaintiff’s complaint lies in the manner in which the investigation was conducted and in
which the evidence was presented to the grand jury. He argues that the only evidence against
him presented to the grand jury was Elo’s assumption that Plaintiff’s choice of language was
code for drug distribution, and that the grand jury relied on the Defendants’ investigation and
conclusions while Defendants failed to consider other evidence at their disposal. For example,
that Plaintiff owned a salvage shop, that he frequently worked on and rode motorcycles, and that
he had no prior criminal record. Pl. Opp’n at 10-11. The focus of the probable cause inquiry,
however, is not whether the officers conducted the investigation negligently, or whether the
information on which the agents based their request for an arrest warrant “resulted from a
professionally executed investigation,” or whether the information “resulted from exemplary

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police work;” the issue is whether it was objectively reasonable for the agents to conclude that
they had sufficient information to believe that Plaintiff had committed the crimes for which he
was arrested. Orsatti v. New Jersey State Police, 71 F.3d 480, 484 (3d Cir. 1995). Given the
grand jury presentment, and absent any evidence of fraud, corruption or perjury, I find that the
Defendants had probable cause to arrest Plaintiff for the charges made against him.1
Accordingly, Defendant’s motion for summary judgment shall be granted.
An appropriate order follows.

BY THE COURT:

/S/WENDY BEETLESTONE, J.
_______________________________
WENDY BEETLESTONE, J.

1

The conclusion is not altered, despite Plaintiff’s arguments to the contrary, by Malley v. Briggs, a case in which the
Supreme Court addressed, in the context of a discussion on qualified immunity, a fact pattern in which officers
obtained approval of a warrant from a magistrate judge based on affidavits describing two wire tapped phone calls
during which code words for drugs or drug use were used by the plaintiffs. 475 U.S. 335, 338 (1986). The Court
found that the fact that a magistrate judge had approved the warrant did not insulate the officers from liability: “Only
where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence
unreasonable . . . will the shield of immunity be lost.” Id. at 344–45. Both plaintiffs were arrested pursuant to the
warrant issued by the magistrate but the charges against them were dropped when the grand jury to which the case
was presented did not return an indictment. Malley did not address the rule that, absent fraud, perjury or corrupt
conduct, a grand jury presentment constitutes prima facie evidence of probable case and the Third Circuit, deciding
Rose v. Bartle three years later, did not suggest that Malley had undermined that rule.

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