Zelarno v. Taylor et al
Filing
72
ORDER granting in part and denying in part 58 Motion for Summary Judgment filed by Defendant Owens. Signed by Honorable J Michelle Childs on 8/24/11.(awil)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
SPARTANBURG DIVISION
Frances Louise Zelarno,
)
)
Plaintiff,
)
)
v.
)
)
Sheriff David Taylor, Union
)
County, James Owens and the
)
City of Jonesville,
)
)
Defendants.
)
)
____________________________________)
C.A. No. 7:09-cv-02860-JMC
ORDER AND OPINION
This matter is before the court on Defendant James Owens‘s Motion for Summary
Judgment [Doc. 58].1 Based on the record before this court, Officer Owens‘s motion is granted in
part and denied in part.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of May 20, 2009, Officer James Owens (―Officer Owens‖), a patrol
officer employed by the Town of Jonesville Police Department, observed Britney Nicole Turner
(―Turner‖) driving her car, along with her passenger Plaintiff Frances Louise Zelarno
(―Plaintiff‖), with one of its front headlights out and initiated a traffic stop.2 [Doc. 48-2, at p. 19,
ll. 14-16]; [Doc. 48-2, at p. 20, ll. 3-11]; [Doc. 48-3, at p. 8, ll. 1-12]. Turner admitted that she
Although this case‘s caption includes the ―City of Jonesville‖ as a Defendant, in its Motion for
Summary Judgment [Doc. 50], that particular Defendant refers to itself as the ―Town of
Jonesville.‖
2
Turner has filed an identical action to the instant action. See Britney Nicole Turner v. Sheriff
David Taylor, Union County, James Owens and the City of Jonesville, C.A. No. 7:09-cv-02858JMC. The docket numbers cited in the court‘s factual discussion and analysis in this order track
the docket numbers cited in the court‘s order on the Town of Jonesville‘s Motion for Summary
Judgment [Doc. 48] in Turner‘s companion case.
1
1
had been stopped on four prior consecutive days for driving without a headlight. [Doc. 48-2, at p.
15, ll. 15 – p. 17, l. 2]; [Doc. 48-4, at p. 20, l. 15 – p. 21, l. 2]; [Doc. 48-5, at p. 31, ll. 17-20].
However, Turner did not fix her headlight, and it was still broken on May 20, 2009, when she
and Plaintiff left her home. [Doc. 48-3, at p. 7, l. 16 – p. 8, l. 12]. Turner admitted that she knew
it was against the law to drive without a headlight and that she had no problem being stopped yet
again. [Doc. 48-3, at p. 8, ll. 13-18]; [Doc. 48-3, at p. 9, ll. 6-8]; [Doc. 48-3, at p. 49, ll. 18-22].
Just before pulling Turner over, Officer Owens observed Plaintiff throw a cigarette out of the car
window. [Doc. 48-4, at p. 23, ll. 6-15].
Plaintiff and Turner admit that Officer Owens advised Turner that he smelled alcohol
coming from the car. [Doc. 48-2, at p. 24, ll. 18-21]; [Doc. 48-4, at p. 24, ll. 15-18]. Both
Plaintiff and Turner admit that Turner consented to a search of her vehicle upon request by
Officer Owens. [Doc. 48-2, at p. 24, ll. 18-21]; [Doc. 48-4, at p. 24, ll. 15-18]. After consent,
Officer Owens searched the vehicle and then used his police dog to sniff the vehicle for drugs.
[Doc. 48-2, at p. 25, ll. 1-12]; [Doc. 48-3, at p. 18, ll. 2-24]; [Doc. 48-3, at p. 20, ll. 12-18]; [Doc.
48-4, at p. 26, ll. 1-24]; [Doc. 48-5, at p. 27, ll. 3-20]. Plaintiff testified that Officer Owens
showed Turner some marijuana stems and seeds he found in the car. [Doc. 48-4, at p. 29, l. 21 –
p. 30, l. 22]; [Doc. 48-5, at p. 25, l. 14 – p. 26, l. 3].3
When Officer Owens called for back-up, a deputy employed by the Union County
Sheriff‘s Office responded. [Doc. 48-2, at p. 26, ll. 16-19]; [Doc. 48-3, at p. 23, ll. 10-14]; [Doc.
3
Turner admitted that she smoked marijuana once a month but was not smoking often at the time
of this incident. [Doc. 48-3, at p. 4, ll. 19-23]; [Doc. 48-5, at p. 19, l. 24 – p. 20, l. 12]. Plaintiff
admitted being a ―pothead‖ and smoking six ―blunts‖ a day. [Doc. 48-5, at p. 19, ll. 2-6].
Plaintiff also admitted selling marijuana. [Doc. 48-5, at p. 19, ll. 17-23]. Despite this, both
denied smoking marijuana on May 20, 2009, before their evening excursion. [Doc. 48-2, at p. 21,
ll. 4-7, ll. 18-25]; [Doc. 48-2, at p. 22, ll. 1-7, ll. 12-14]; [Doc. 48-4, at p. 21, ll. 19-21]; [Doc. 485, at p. 37, ll. 9-12].
2
48-4, at p. 28, ll. 16-23]. The officer assisted in a search of Turner‘s vehicle. [Doc. 48-2, at p. 26,
ll. 21- 24]; [Doc. 48-4, at p. 28, ll. 20-23]. Officer Owens, apparently believing that Plaintiff or
Turner may have hidden drugs on their bodies, requested that a female officer come to the scene
to conduct a search of Plaintiff and Turner. [Doc. 48-2, at p. 26, l. 25 – p. 27, l. 4]; [Doc. 48-4, at
p. 29, ll. 4-20].
A female detention officer employed by the Union County Sheriff‘s office responded.
[Doc. 48-2, at p. 27, l. 25 – p. 28, l. 9]; [Doc. 48-4, at p. 29, ll. 4-20]. She took Plaintiff to the
side of her patrol car away from the road and searched her in between the open passenger‘s side
door and rear door. [Doc. 48-2, at p. 27, ll. 21-23]; [Doc. 48-2, at p. 29, ll. 9-23]; [Doc. 48-4, at
p. 31, l. 2 – p. 32, l. 7]. She conducted searches of Plaintiff by asking her to hold out and shake
her bra, unhook her bra, pull down her panties, cough, squat, and bounce. [Doc. 48-2, at p. 27, l.
25 – p. 28, l. 8]; [Doc. 48-2, at p. 29, ll. 9-23]; [Doc. 48-3, at p. 24, l. 24 – p. 25, l. 12]; [Doc. 484, at p. 31, ll. 13- 24]; [Doc. 48-4, at p. 34, l. 16 – p. 35, l. 1]. The record does not reveal nor does
Plaintiff point to evidence that the male officers or other individuals could observe this search
conducted behind the patrol car. Turner had been searched by the female officer in the same
manner. [Doc. 48-2, at p. 36, ll. 17-22 – p. 37, ll. 18-24]; [Doc. 48-3, at p. 29, ll. 6-16]; [Doc. 484, at p. 37, l. 11 – p. 38, l. 15]. No drugs were found.
Officer Owens gave Turner a warning for the headlight and gave Plaintiff a ticket for
throwing a cigarette out of Turner‘s car. [Doc. 48-2, at p. 35, l. 22 – p. 36, l. 14]; [Doc. 48-4, at
p. 41, ll. 14-18]. When Turner‘s car would not start, Officer Owens assisted in jumpstarting her
vehicle. Thereafter, Plaintiff and Turner left the scene. [Doc. 48-2, at p. 35, ll. 6-21]; [Doc. 48-4,
at p. 41, l. 19 – p. 42, l. 12].
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After the stop, Plaintiff and Turner went to a nearby convenience store. [Doc. 48-2, at p.
38, ll. 15-17]; [Doc. 48-2, at p. 40, ll. 1-18]; [Doc. 48-4, at p. 43, l. 12 – p. 44, l. 6]. Thereafter,
Officer Owens came to the store and approached Plaintiff and Turner with a half of a marijuana
cigarette indicating that he had found it under his car after they left. [Doc. 48-2, at p. 40, l. 20 –
p. 41, l. 14]; [Doc. 48-4, at p. 44, l. 11 – p. 45, l. 6]. Plaintiff and Turner denied that the
marijuana was theirs. [Doc. 48-2, at p. 41, ll. 18-23]; [Doc. 48-5, at p. 2, l. 6].
Plaintiff filed her Complaint [Doc. 1] on November 2, 2009. Officer Owens filed his
Answer [Doc. 37] on February 10, 2010, and the instant Motion for Summary Judgment [Doc.
58] on September 29, 2010.
LEGAL STANDARD
Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, show that ―there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.‖ Fed. R. Civ. P. 56(a). To prevail on a motion for summary judgment, the movant must
demonstrate that: (1) there is no genuine issue as to any material fact; and (2) that he is entitled
to judgment as a matter of law. In determining whether a genuine issue has been raised, the
court must construe all inferences and ambiguities against the movant and in favor of the nonmoving party. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the
district court that there is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving
party, to survive the motion for summary judgment, may not rest on the allegations averred in his
pleadings. Rather, the non-moving party must demonstrate that specific, material facts exist
4
which give rise to a genuine issue. See id at 324. Under this standard, the existence of a mere
scintilla of evidence in support of the plaintiff‘s position is insufficient to withstand the summary
judgment motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Likewise,
conclusory allegations or denials, without more, are insufficient to preclude the granting of the
summary judgment motion. See Ross v. Commc’ns Satellite Corp., 759 F.2d 355, 365 (4th Cir.
1985). ―Only disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.‖ Anderson, 477 U.S. at 248.
DISCUSSION
I.
42 U.S.C. § 1983
Plaintiff‘s case primarily rests on her claims under 42 U.S.C. § 1983, the federal
provision permitting a civil action for the deprivation of federally guaranteed rights. Section
1983 allows a citizen, or other person within the jurisdiction of the United States, to bring suit
against any person acting under the color of law, whether state or federal, for depriving her of
rights secured by the United States Constitution. See 42 U.S.C. § 1983. This includes police
officers employed by municipalities. See Monell v. Dept. of Soc. Serv. Of City of N.Y., 436 U.S.
658 (1978). To state a claim under section 1983, a plaintiff must allege 1) that a right secured by
the constitution or laws of the United States has been violated, and 2) that the alleged violation
was committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48
(1988).
A.
Constitutional Allegations
Plaintiff asserts Officer Owens caused her to be illegally strip searched in violation of her
Fourth, Fifth, Sixth, Seventh, Eighth, Fourteenth, and Twenty-fourth Amendment rights of the
5
United States Constitution. Given Plaintiff‘s focus on the strip searches, the right at issue here is
that protected by the Fourth Amendment - the right to protection against unreasonable search and
seizures. See U.S. Const. amend IV. The other Amendments (Fifth, Sixth, Seventh, Eighth, and
Twenty-fourth) are irrelevant, inapplicable to the facts alleged, and should be disregarded; the
court‘s analysis is directed to the Fourth Amendment.4
The Fourth Amendment prevents unreasonable searches of ―persons, houses, papers, and
effects.‖ U.S. Const. amend. IV. ―The overriding function of the Fourth Amendment is to protect
personal privacy and dignity against unwarranted intrusion by the State.‖ Schmerber v. State of
California, 384 U.S. 757, 767 (1966). The Fourteenth Amendment essentially extends the federal
right of due process, as provided in the Fourth Amendment, to state and local levels of
government, and it is the vehicle through which the procedural and substantive requirements of
due process are applied to state and local governments. See U.S. Const. Amend. XIV, § 2; see
also Hallinger v. Davis, 146 U.S. 314, 320 (1893).
Under the Fourth Amendment, a law enforcement officer is generally required to have
probable cause for conducting a search. See Safford Unified School District #1 v. Redding, 129
S. Ct. 2633, 2639 (2009). ―[P]robable cause exists where the facts and circumstances are
sufficient to warrant a person of reasonable caution to believe that a crime has been committed
and that seizable property can be found at the place to be searched.‖ United States v. Dorlouis,
107 F.3d 248, 255 (4th Cir. 1997). Generally speaking, the required knowledge component of
4
The Fifth Amendment protects persons against prosecution of particular crimes without
indictment, double-jeopardy, self-incrimination, and the deprivation of life, liberty or property
without due process. See U.S. Const. amend. V. The Sixth Amendment speaks to the right to a
speedy trial, trial by jury, being advised of charges, confrontation of witnesses, and assistance of
counsel. See U.S. Const. amend. VI. The Seventh Amendment further protects the right to a trial
by jury in certain instances. See U.S. Const. amend. VII. The Eighth Amendment prevents cruel
and unusual punishment. See U.S. Const. amend. VIII. The Twenty-fourth Amendment speaks to
poll taxes and the right to vote. See U.S. Const. amend. XXIV.
6
probable cause for an officer‘s search is that it raises a ―fair probability‖ or a ―substantial
chance‖ of discovering criminal activity. Safford, at 2639 (citing Illinois v. Gates, 462 U.S. 213,
238, 244 n. 13 (1983)). The probable cause determination is made through consideration of ―the
totality of the circumstances.‖ Id. Probable cause naturally deals with probabilities, and due
weight must be given to an officer‘s specific reasonable inferences that he draws from facts in
light of his experience. However, mere suspicions of an officer do not support a finding of
probable cause. See Terry v, Ohio, 392 U.S. 1, 27 (1968); and Henry v. United States, 361 U.S.
98 (1959). In sum, ―to be constitutional, a search must not be unreasonable.‖ Amaechi v. West,
237 F.3d 356, 360 (4th Cir. 2001) (citing Veronia Sch. Dist. v. Acton, 515 U.S. 646, 653).
1.
The Automobile Search
Initially, the court reads Plaintiff‘s Complaint to allege that her constitutional rights were
violated because Officer Owens‘s ―conduct of performing a stop and investigation pursuant to
that stop‖ was unconstitutional. [Doc. 34, at p. 3-4, ¶ B]. As Turner admits, Officer Owens
stopped her because one of her headlights was out, and she admitted that she knew it was against
the law to drive without properly operating headlights. See [Doc. 48-3, at pp. 8-9, and 47]. In
addition, Plaintiff, Turner‘s passenger, admitted that Officer Owens told Plaintiff that he saw her
throw a cigarette out of the car window before pulling Turner over. [Doc. 48-4, at 23]. Officer
Owens ultimately gave Plaintiff a ticket for the cigarette. [Doc. 48-4, at 41].
Plaintiff and Turner testified that Officer Owens told Plaintiff that he smelled alcohol.
[Doc. 48-2, at p. 23]. In his affidavit, Officer Owens states that he smelled marijuana emanating
from the car. [Doc. 55-2, at p. 1, ¶ 6]. However, viewing the testimony in a light most favorable
to Plaintiff, the court accepts as true that Officer Owens smelled alcohol. In any event, Plaintiff
consented to a search of her vehicle. [Doc. 48-2, at p. 24]; [Doc. 48-4, at p. 24]. The search of
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the vehicle was proper because ―[v]alid consent is a well-recognized exception to the Fourth
Amendment prohibition against warrantless searches.‖ United States v. Nealy, 564 F.3d 346,
349-50 (4th Cir. 2009) (quoting Trulock v. Freeh, 275 F.3d 391, 401 (4th Cir. 2001)).
2.
The Strip Search
The court also interprets Plaintiff‘s complaint as alleging a violation of her constitutional
rights because of an allegedly unconstitutional strip search. As Plaintiff highlights with citation
to a number of cases, strip searches are highly intrusive and can be a ―thoroughly degrading and
frightening‖ experience. Chapman v. Nichols, 989 F.2d 393, 396 (10th Cir. 1993). The United
States Court of Appeals for the Fourth Circuit has held that ―[a] strip search includes the
exposure of a person‘s naked body for purposes of a visual or physical examination.‖ Amaechi,
237 F.3d at 363 (citing United States v. Dorlouis, 107 F.3d 348, 256 (4th Cir. 1997)). Searches
of a person are generally not permitted absent a search warrant, which may only issue upon
probable cause. See New York v. Belton, 453 U.S. 454, 457 (1981). In this case, Officer Owens
did not have a warrant to search Plaintiff and Turner, and at the time of their search, Plaintiff and
Turner were not under arrest; they were merely detained.
The circumstances in which warrantless strip searches may be permissible are narrow,
and they include strip searches ―incident to an arrest, at an international border, or at a school.‖
Lessley v. The City of Madison, 654 F. Supp. 2d 877, 902 (S.D. Ind. 2009); see, e.g., United
States v. Montoya de Hernande,z 473 U.S. 531, 537-39 (1985) (finding constitutional a
warrantless search at the international border because the search was supported by reasonable
suspicion); Campbell v. Miller, 499 F.3d 711, 718 (7th Cir. 2007) (finding that the search of the
arrestee, ―involving . . . public nudity and exposure of intimate body parts‖ was unconstitutional
because it was unreasonable); Doe v. Renfrow, 631 F.2d 91, 92 (7th Cir. 1980) (reversing trial
8
court‘s grant of qualified immunity because school officials‘ nude search of thirteen year old
student clearly violated Fourth Amendment).
Additionally, ―Courts across the country are uniform in their condemnation of intrusive
searches performed in public.‖ Campbell, 499 F.3d at 719. In this same vein, the Fourth Circuit
has held that ―as a matter of law, no police officer in this day and time could reasonably believe
that conducting a strip search in an area exposed to the general view of persons known to be in
the vicinity whether or not any actually viewed the search is a constitutionally valid
governmental invasion of [the] personal rights that [such a] search entails.‖ Logan v. Shealy, 660
F.2d 1007, 1014 (4th Cir. 1981). The Fourth Circuit has also stated that ―we have repeatedly
emphasized the necessity of conducting a strip search in private‖ and that ―absent clear
justification or exigent circumstances, an officer is not allowed to strip an arrestee on a public
street pursuant to a search incident to an arrest . . . .‖ Amaechi v. West, 237 F.3d 356, 364 (4th
Cir. 2001). Thus, in applying Amaechi, a search of one not under arrest on a public street, absent
exigent circumstances, would also be unconstitutional.
During the strip search, which according to Plaintiff lasted ―about [ten] to [fifteen]
minutes,‖ the record indicates that the female officer pulled Plaitniff‘s shirt up over the top of her
bra, unhooked the bra, and checked to make sure no contraband was concealed within the bra.
[Doc. 48-4, at pp. 37 - 39]. The female officer then patted her down and refastened her bra.
[Doc. 55-3, at p. 19]. The female officer then re-clasped Plaintiff‘s bra. [Doc. 48-4, at p. 38].
At that point, the female officer made Plaintiff ―pull [her] skirt up, [and] pull [her] panties down.
And she made me squat down and like bounce myself up and down on the . . .‖ [Doc. 48-4, at
38, ll. 10-13]. Here, the record indicates that the strip search of Plaintiff occurred on a public
road adjacent to a restaurant and beside the open passenger door of the female officer‘s car.
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[Doc. 48-4, at 31, 34]. While the purpose of opening the door was apparently to afford Plaintiff
some measure of privacy, the search was, nevertheless, conducted in public, and Plaintiff was
standing on the side of the road next to the officer‘s car. [Doc. 48-4, at 34].
Officer Owens argues that his actions were performed in good faith and thus were a legal
justification for the manner in which the strip search was conducted. Generally, the good faith
exception applies to searches ―conducted pursuant to warrants‖ ultimately determined to be
defective for being issued without probable cause. United States v. Leon, 468 U.S. 897, 924
(1984). Although, there are some circumstances in which courts have applied the good faith
exception to warrantless searches, see Illinois v. Krull, 480 U.S. 340 (1987) (upholding a
warrantless search conducted pursuant to a statute later declared unconstitutional), a number of
circuit courts have declined to apply the good-faith exception to warrantless searches. See
United States v. Scales, 903 F.2d 765 (10th Cir. 1990) (holding that ―the seizure of Plaintiff‘s
suitcase without a warrant or without probable cause and exigent circumstances‖ violates the
Fourth Amendment); United States v. Curzi, 867 F.2d 36 (1st Cir. 1989) (holding that the good
faith exception does not apply to a warrantless search of a home despite the fact that the police
had an arrest warrant for a person associated with the home but not its owner); United States v.
Winsor, 846 F.2d 1569 (9th Cir. 1988) (holding that despite the police officers‘ claim that the
search was conducted in good faith, a search of Plaintiff‘s hotel room without probable cause
violated the Fourth Amendment). While Officer Owens has pointed to no Fourth Circuit cases
addressing the precise issue presented in the instant case, one court has held that ―in the absence
of an arrest, a warrantless strip search, let alone an even more intrusive body cavity search,
violates the Fourth Amendment even when there may be some basis to suspect contraband.‖
Gray v. City of Columbus, Cause No. IP 98-1395-C H/G, 2000 U.S. Dist. LEXIS 7207, at *24
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(S.D. Ind. January 31, 2000) (citing Doe v. Renfrow, 631 F.2d 91 (7th Cir. 1980)). The Gray
court continued: ―the starting point for analysis of Plaintiff‘s claims here is that a warrantless
search of a person requires legal justification.‖ Id. Based on the authority outlined herein, the
court finds that Defendants are not entitled to summary judgment as a matter of law based on the
good faith exception to warrant requirement.
Officer Owens also argues that exigent circumstances existed in this case.
Exigent
circumstances are among the exceptions that may provide a justification for a warrantless strip
search. See United States v. Smith, 797 F.2d 836, 840 (10th Cir. 1986). According to the court
in Smith, ―[t]he basic aspects of the exigent circumstances exception are that: 1) the law
enforcement officers must have reasonable grounds to believe that there is immediate need to
protect their lives or others or the property of others, 2) the search must not be motivated by an
intent to arrest and seize evidence, and 3) there must be some reasonable basis, approaching
probable cause to associate an emergency with the area or place to be searched.‖ Id. Similarly,
the court in Moss held that, within the context of a premises search, the exigent circumstances
that might support the good faith exception include a search or seizure ―to prevent imminent
removal or destruction of evidence, to arrest fleeing suspects, or to avoid imminent threats of
death or bodily harm.‖ United States v. Moss, 963 F.2d 673, 677-78 (citing W.L. LaFave, 2
Search and Seizure §§ 6.1(f), 6.5(b), 6.5(d) (Second ed. 1987)).
Again, Plaintiff and Turner were not under arrest at the time of the warrantless strip
search.
To succeed on his motion for summary judgment, Officer Owens would have to
establish that the facts were such that the exigent circumstances exception applies. After Officer
Owens initially conducted a search of Plaintiff‘s car, he did not find anything. [Doc. 55-3, at p.
16]. He then used a K-9 to assist in the search. However, Plaintiff argues in her brief that the K-
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9 ―never hit on Plaintiff or Ms. Turner.‖ [Doc. 69, at p. 4]. In his affidavit, Officer Owens
asserts that the K-9 alerted ―by changing his posture then by sitting.‖ [Doc. 55-2, at p. 2, ¶ 10].
But Plaintiff testified in her deposition that when Officer Owens walked the dog over to Turner‘s
car, Officer Owens ―said something to the dog and the dog sat down . . . [a]nd then he walked the
dog over to me and Britney and the dog didn‘t - - he sat back down again. He didn‘t smell
anything.‖ [Doc. 48-4, at 26]. When asked, ―[s]o did the dog just walk around the car or did the
dog go in the car,‖ Plaintiff responded, ―[h]e walked . . . the dog walked . . .he walked the dog to
Britney‘s side of the car and just said something and the dog sat down.‖ [Doc. 48-4, at p. 27].
The discrepancy between Officer Owens‘s statement in his affidavit indicating that the K-9 in
question alerts by sitting and Plaintiff‘s deposition testimony that there were instances in which
the dog sat in response to Officer‘s Owens statements to the dog indicates a genuine dispute and
an ambiguity over the question of whether the K-9 alerted and what an alert means for this dog.
Consequently, this ambiguity should be resolved in Plaintiff‘s favor for purposes of this motion.
After Officer Owens used the K-9 to assist in the search, he called for backup, and
another Union County Deputy assisted in the search. Although the record is unclear as to exactly
when, at some point during the search of Turner‘s car, marijuana stems and seeds were found.
Despite this discovery, Officer Owens did not explicitly place Plaintiff or Turner under arrest but
instead proceeded to have them strip searched. Here, the facts do not indicate that lives or
property were in immediate danger, nor do the facts indicate that an emergency could be
associated with the place to be searched.
Furthermore, the facts do not indicate that the
destruction of evidence was imminent. Instead, when viewed in a light most favorable to
Plaintiff, the facts indicate that the strip search seemed to be motivated by an intent to discover
and ―seize evidence.‖ Smith, 797 F. 2d at 840. In sum, Officer Owens has not provided a clear
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legal justification for the warrantless strip search conducted of Plaintiff who, at the time, was not
under arrest Accordingly, Officer Owens‘s Motion for Summary Judgment on Plaintiff‘s Fourth
Amendment claim is denied.
B.
Qualified Immunity
―To resolve a qualified immunity defense, the court must (1) determine whether the facts
alleged, taken in the light most favorable to the plaintiff, show that the defendants‘ conduct
violated a constitutional right, and (2) determine whether the right was clearly established at the
time of the alleged misconduct.‖ VanDerHorst v. Hoffer , C/A No. 0:09—cv-0706-SB-PJG,
2010 WL 1009997, at *2 (D.S.C. February 16, 2010) (citing Pearson v. Callahan, 129 S. Ct.
808, 815-16 (2009)).
Under the qualified immunity defense, ―government officials performing discretionary
functions generally are shielded from liability for civil damages insofar as 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); See also Cone v. Nettles, 308
S.C. 109, 417 S.E.2d 523 (1992). Thus, qualified immunity is lost if an official violates a
constitutional or statutory right of a plaintiff that was clearly established at the time of the
alleged violation such that an objectively reasonable official in the official‘s position would have
known of the right. Id. ―Qualified immunity ensures that ―[o]fficials are not liable for bad
guesses in gray areas; they are liable for transgressing bright lines.‘‖ Swagler v. Sheridan, Civil
Action No.: RDB-08-2289, 2011 U.S. Dist. LEXIS 74840 (D. Md. July 12, 2011) (citing Iko v.
Shreve, 535 F.3d 225, 238 (4th Cir. 2008)).
―Courts may address the two prongs of the qualified immunity analysis in whichever
order is appropriate in light of the circumstances of the particular case at hand.‖ Id.
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In its analysis above, supra I.A.2, the court has determined that summary judgment is not
appropriate because the facts as interpreted in the light most favorable to Plaintiff indicate that
Officer Owens violated Plaintiff‘s constitutional rights. Therefore, the court will turn to the
question of whether those rights were clearly established at the time of the violation. To be
clearly established,
―[t]he contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right. This is
not to say that an official action is protected by qualified immunity unless
the very action in question has been previously held unlawful; but it is to
say that in light of pre-existing law the unlawfulness must be apparent.‖
Anderson v. Creighton, 483 U.S. 635, 640 (1987). The court concludes that Plaintiff‘s rights
were clearly established at the time of the strip search. In support of this conclusion the court
reiterates the law discussed above, see supra I.A.2: namely that warrantless strip searches,
especially of those not under arrest, should not be conducted in public. Amaechi 237 F.3d at,
364 (―we have repeatedly emphasized the necessity of conducting a strip search in private‖ and
that ―absent clear justification or exigent circumstances, an officer is not allowed to strip an
arrestee on a public street pursuant to a search incident to an arrest . . . .‖). Accordingly, Plaintiff
has presented sufficient evidence that she was strip searched in public, and the law, as it relates
to strip searches of this kind, was clearly established at the time; therefore, Officer Owens is not
entitled to a defense of qualified immunity.
C.
§ 1983 Pattern and Practice Claim
Plaintiff alleges that Officer Owens participated in a pattern or practice of engaging in the
strip search without probable cause. In Plaintiff‘s view, Officer Owens consequently violated
Plaintiff‘s constitutional rights because ―[t]here is not one piece of evidence presented by this
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Defendant or the Town of Jonesville to show that this Defendant was reprimanded for his
conduct on the date at issue.‖ [Doc. 69, at p. 4].
Here, the court reads Plaintiff‘s argument concerning the absence of a reprimand to be a
claim that this fact is affirmative evidence that Officer Owens violated a policy or custom or that
he was involved in a pattern of unconstitutional behavior. But to survive summary judgment,
Plaintiff must present more than the mere absence of evidence of a reprimand in support of her
claims.
Instead, Plaintiff has identified no evidence that Officer Owens violated any
constitutional right of Plaintiff pursuant to any express policy, custom or practice of the Town of
Jonesville relating to physical searches incident to a traffic stop.
Furthermore, the record is devoid of evidence that Officer Owens was not properly
trained regarding searches incident to traffic stops. The record is also devoid of evidence that
Officer Owens asked Plaintiff to be searched because he was not properly supervised or because
he was involved in a pattern of unconstitutional practices. In sum, there is no evidence that any
constitutional right of Plaintiff was violated because of Officer Owens‘s involvement in the
establishment, promulgation or enforcement of such patterns and practices. Accordingly, Officer
Owens is entitled to summary judgment with respect to Plaintiff‘s patterns and practices claim.
Accordingly, Officer Owens is entitled to summary judgment with respect to Plaintiff‘s
Fourteenth Amendment pattern and practice claim.
III.
Negligence Claim
Plaintiff argues that Officer Owens was negligent in causing her strip search. To establish
liability in a negligence action, the claimant must show: (1) a duty of care owed by the defendant
to the plaintiff; (2) breach of that duty; and (3) damages proximately resulting from the breach.
See Bishop v. South Carolina Dep't of Mental Health, 331 S.C. 79, 88, 502 S.E.2d 78, 82 (1998).
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Statutes, contractual relationships, property interests, and other special circumstances may give
rise to an affirmative legal duty to act. See Madison ex rel. Bryant v. Babcock Ctr., Inc., 371 S.C.
123, 136, 638 S.E.2d 650, 656-57 (2006). The South Carolina Tort Claims Act (―the Tort Claims
Act‖ or ―the Act‖) constitutes the exclusive civil remedy for any tort committed by a
governmental employee while acting within the scope of the employee's official duties. See S.C.
Code Ann. § 15-78-200 (2005). The Tort Claims Act does not create causes of action, but
removes the common law bar of governmental immunity. See Arthurs ex rel. Estate of Munn v.
Aiken Cty., 346 S.C. 97, 105, 551 S.E.2d 579, 583 (2001). The Act is a ―limited waiver of
governmental immunity.‖ Steinke v. South Carolina Dep't of Labor, Licensing, and Regulation,
336 S.C. 373, 393, 520 S.E.2d 142, 152 (1999) (citing Moore v. Florence School Dist. No. 1, 314
S.C. 335, 444 S.E.2d 498 (1994)).
However, under South Carolina law, ―[w]hen, and only when, the plaintiff relies upon a
statute as creating the duty does a doctrine known as the ‗public duty rule‘ come into play.‖
Arthurs ex rel. Estate of Munn, 346 S.C. at 103, 551 S.E.2d at 582. Thus, in South Carolina,
there is no duty owed by the police to individuals; rather, the police owe duties to the public at
large. See Wyatt v. Fowler, 326 S.C. 97, 101, 484 S.E.2d 590, 592 (1997). In Wyatt, the
Supreme Court of South Carolina considered a negligence claim asserted against the Sheriff. See
id. There, two sheriff‘s deputies entered Wyatt‘s residence at 5:30 pm while he was asleep
looking for Allen Parrish for whom they had an arrest warrant. See id. at 99, 484 S.E.2d at 592.
Wyatt awoke thinking that there was a burglary taking place, armed himself, and went to
investigate. See id. The police drew weapons from their holsters. See id.
When Wyatt
approached the deputies, they identified themselves, and he provided proof he was not Parrish.
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See id. The deputies then left without further incident. Id. at 100, 484 S.E.2d at 592. Wyatt sued
alleging negligence against the deputies and the Sheriff. Id.
The Supreme Court of South Carolina found that the trial court erred in failing to grant a
directed verdict in favor of the Sheriff on the negligence claim. Id. at 100-101, 484 S.E.2d at
592. It adopted the view of other jurisdictions that police owe their duties to the public at large
and not to individuals. Id. For example, the Court relied on Flones v. Dalman, 199 Mich. App.
396, 403, 502 N.W.2d 725, 729 (Mich. App. 1993) in reaching its conclusion. See Wyatt, 326
S.C. at 101, 484 S.E.2d at 592. In Flones, state troopers were investigating homosexual activity
in highway restrooms and mistakenly identified and arrested Flones as a suspect. See Flones,
199 Mich. App. At 399, 502 N.W.2d 727. The court rejected Flones‘ claim for negligence,
finding that there was no legal duty as a matter of law. Id. at 403. The court held that ―[a] police
officer‘s duty to preserve the peace is owed to the public at large, not to any one individual . . . .
Here, the defendant‘s duty to the public is to detect and investigate crime; no duty is owed to the
plaintiffs as individuals.‖ Id.; see also Wimer v. Idaho, 122 Idaho 923, 925, 841 P.2d 453, 455
(Idaho Ct. App. 1992) (finding that there is no cause of action against officers for negligent
investigation). In Washington v. Lexington County Jail, 337 S.C. 400, 406, 523 S.E.2d 204, 207
(Ct. App. 1999), the South Carolina Court of Appeals reiterated the South Carolina Supreme
Court‘s holding in Wyatt. In Washington, the Court of Appeals found that police officers owe
duties to the public at large and not to individuals. Id. (―We find the situation of guards who
maintain custody of inmates analogous to that of police officers who owe a duty generally to
society rather than to any one individual. Accordingly, we hold that those who maintain custody
of prisoners or inmates do so for the protection of the public and are, therefore, not liable to
individuals for damages caused by an escaped inmate under the public duty rule‖). For the
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foregoing reasons, the court finds that Officer Owens owed no duty to Plaintiff. Accordingly,
Officer Owens is entitled to summary judgment with respect to Plaintiff‘s negligence claim.
IV. Civil Conspiracy Claim
Plaintiff argues that there were actions on the part of Officer Owens, the county detention
officer and the officer with the Union County Sheriff‘s Department that constitute civil
conspiracy and deprived Plaintiff of her constitutional rights. To establish her claim for civil
conspiracy, Plaintiff must allege and prove: (1) [a] combination of two or more persons; (2) for
the purpose of injuring her; and (3) which caused special damages. LaMotte v. Punchline of
Columbia, Inc., 296 S.C. 66, 69, 370 S.E.2d 711 (1988). There is no evidence to support
Plaintiff‘s civil conspiracy claim against Officer Owens. Contrary to Plaintiff‘s allegations, the
evidence establishes that Officer Owens initiated the traffic stop of Plaintiff because she had a
broken headlight and that he conducted a search of her vehicle with her consent. [Doc. 48-2, at p.
19, ll. 14-16]; [Doc. 48-2, at p. 20, ll. 3-11];[Doc. 48-2, at p. 24, ll. 18-21]; [Doc. 48-3, at p. 8, ll.
1-12]; [Doc. 48-3, at p. 17, ll. 10-13]; [Doc. 48-3, at p. 18, ll. 2-4]. The evidence further
establishes that he called for backup and a Union County Sheriff‘s Deputy responded. He
subsequently requested a female officer to search Plaintiff. [Doc. 48-2, at p. 26, ll. 16-25 – p. 27,
l. 4]; [Doc. 48-3, at p. 22, ll. 10-14]; [Doc. 48-4, at p. 28, ll. 1-6 – p. 29, ll. 4-20]. There is no
evidence that these events unfolded in a preplanned manner or that these officers conspired with
one another to injure Plaintiff. In addition, there are no special damages claimed by Plaintiff.
Special damages are damages that are claimed in addition to damages sought under other causes
of action. See Robinson v. Metts, 86 F. Supp. 2d 557, 563 (D.S.C. 1997). The damages Plaintiff
seeks for conspiracy are the same as those sought under her other causes of action. Accordingly,
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Owens‘s Motion for Summary Judgment with respect to Plaintiff‘s Civil Conspiracy claim is
granted.
CONCLUSION
For the foregoing reasons, Defendant James Owens‘s Motion for Summary Judgment
[Doc. 58] is DENIED in part and GRANTED in part. It is denied with respect to Plaintiff‘s
claim for violation of the Fourth Amendment and Officer Owens‘s defense of qualified
immunity. Officer Owens‘s motion is granted with respect to Plaintiff‘s pattern and practice,
negligence and civil conspiracy claims.
IT IS SO ORDERED
s/J. Michelle Childs
United States District Judge
August 24, 2011
Greenville, South Carolina
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