Long v. Beres et al
Filing
47
MEMORANDUM OPINION. Signed by District Judge John A. Gibney, Jr on 1/10/13. Copy sent: Yes(tdai, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
JOHNATHAN C. LONG,
Plaintiff,
Civil Action No. 3:10CV532
v.
DETECTIVE BERES, et aL,
Defendants.
MEMORANDUM OPINION
Johnathan C. Long, a federal prisoner proceeding pro se and informa pauperis, brings
this civil action pursuant to 42 U.S.C. § 1983.1 The action proceeds on Long's Complaint, in
which he alleges that, by swabbing his hands for gunpowder residue without his consent,
Detective Beres, Officer Nemetz, and Officer Alexander ("defendants")2 violated his Fourth3 and
Fifth4 Amendment rights. The matter is now before the Court on the defendants' Motion for
Summary Judgment. Long has responded. This matter is ripe for judgment. Because the
That statute provides, in pertinent part:
Every person who, under color of any statute ... of any State ... subjects,
or causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law....
42 U.S.C. § 1983.
At all times relevant to this action, the Hampton Police Department employed the
defendants.
"The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated
" U.S. Const, amend. IV.
'No person shall ... be deprived of life, liberty, or property without due process of
law.
U.S. Const, amend. V.
defendants had probable cause to conduct the search and were facing exigent circumstances, the
Court will GRANT their Motion for Summary Judgment.
I.
SUMMARY OF CLAIMS
The action arises from a shooting in Hampton, Virginia on the night of March 12, 2010.
Inhis Complaint, Long makes the following claims:5
Claim One
Defendants violated Long's Fourth Amendment right to freedom
from unlawful search and seizure by restraining Long and
swabbing his hands for gunpowder residue without his consent.
Claim Two
Defendants violated Long's Fifth Amendment right to freedom
from deprivation of liberty without due process of law by
restraining Long and swabbing his hands for gunpowder residue
without his consent.
(Compl. at 5-5a.)6 Long seeks monetary damages in the amount of $150,000 and "for [the
defendants] to take a class on police brutality." (Id at 6.) In his "Brief in Support of His
Response/Opposition to Defendants' Motion for Summary Judgment" ("Brief in Opposition"),
Long seeks to "voluntary [sic] withdraw his claim of Fifth Amendment violations against all the
Defendants in this case." (Brief in Opposition 12.) Long's request will be GRANTED, and
Claim Two will be DISMISSED WITHOUT PREJUDICE.
5The Court found in its February 8, 2012 Memorandum Opinion and Order, that Long, in
his Complaint, did not plead a claim for excessive force. As a result, the only Fourth
Amendment claim beforethe Court has to do with the permissibility of the search, not the degree
of force used in seizing Long or conducting that search.
6The Court corrected the capitalization in the quotations ofLong's submissions. Further,
Long's Complaint includes an unnumbered page between pages five and six, which the Court
refers to as page "5a."
II.
SUMMARY JUDGMENT STANDARD
Summary judgment must be rendered "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." Fed.
R. Civ. P. 56(a). It is the responsibility of the party seeking summary judgment to inform the
court of the basis for the motion, and to identify the parts of the record which demonstrate the
absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, All U.S. 317, 323
(1986). "[WJhere the nonmoving party will bear the burden of proof at trial on a dispositive
issue, a summary judgment motion may properly be made in reliance solely on the pleadings,
depositions, answers to interrogatories, and admissions on file." Id. at 324 (internal quotation
marks omitted). When the motion is properly supported, the nonmoving party must go beyond
the pleadings and, by citing affidavits or '"depositions, answers to interrogatories, and
admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Id.
(quoting former Fed. R. Civ. P. 56(c) and 56(e) (1986)). Additionally, "'Rule 56 does not
impose upon the district court a duty to sift through the record in search of evidence to support a
party's opposition to summary judgment.'" Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994)
(quoting Skotakv. Tenneco Resins, Inc., 953 F.2d 909, 915 & n.7 (5th Cir. 1992)); see Fed. R.
Civ. P. 56(c)(3) ("The court need consider only the cited materials
").
In reviewing a summary judgment motion, the court "must draw all justifiable inferences
in favor of the nonmoving party." United States v. Carolina Transformer Co., 978 F.2d 832, 835
(4th Cir. 1992) (citing Anderson v. Liberty Lobby Inc., All U.S. 242, 255 (1986)). A mere
scintilla of evidence, however, will not preclude summary judgment. Anderson, All U.S. at 251.
Moreover, not all disputes of fact preclude summary judgment. Instead, "the requirement is that
there be no genuine issue of material fact." Id. at 248. With respect to materiality, "[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." Id.
As to genuineness, the nonmoving party "must produce . . . evidence that creates a fair
doubt; wholly speculative assertions will not suffice." Bongam v. Action Toyota, Inc., 14 F.
App'x 275, 280 (4th Cir. 2001) (internal quotation marks omitted). "A motion for summary
judgment may not be defeated by evidence that is 'merely colorable' or 'is not sufficiently
probative.'" M & MMed. Supplies & Serv., Inc. v. Pleasant Valley Hosp., Inc., 981 F.2d 160,
163 (4th Cir. 1993) (quoting Anderson, All U.S. at 249-50). Nor will mere '"metaphysical
doubt as to the material facts'" create a genuine dispute. Emmett v. Johnson, 532 F.3d 291, 297
(4th Cir. 2008) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)). Thus, "[t]he nonmovant can show that a dispute is genuine only if it provides sufficient
evidence so that a 'reasonablejury could return a verdict for the nonmoving party.'" Wiggins v.
DaVita Tidewater LLC, 451 F. Supp. 2d 789, 796 (E.D. Va. 2006) (quoting Anderson, All U.S.
at 248).
In support of their Motion for Summary Judgment, the defendants submit affidavits of
Officer James Douglas Meadows (Br. Supp. Mot. Summ. J. (Docket No. 39-1) ("Meadows
Aff.")), Officer Michael Joseph Beres (Br. Supp. Mot. Summ. J. (Docket No. 39-2) ("Beres
Aff.")), Diane V. Gardner (Br. Supp. Mot. Summ. J. (Docket No. 39-3) (Gardner Aff.")), a List
of Events (Br. Supp. Mot. Summ J. (Docket No. 39-4, Ex. A)), the affidavit of Officer William
Lawrence Alexander (Br. Supp. Mot. Summ. J. (Docket No. 39-5) ("Alexander Aff.")), and the
affidavit of Officer Steven Robert Nemetz (Br. Supp. Mot. Summ. J. (Docket No. 39-6)
("Nemetz Aff.")). In response, Long submits his own affidavit (Brief in Opposition (DocketNo
41-1) ("Long Aff.")), the affidavit of Paulette D. Jones (Brief in Opposition (Docket No. 41-2)
("Jones Aff.")), and submits eight police reports (Brief in Opposition Ex. A-H).7
Moreover, the facts offered by affidavit or sworn declaration must also be in the form of
admissible evidence. See Fed. R. Civ. P. 56(c)(4). In this regard, the statement in the affidavit
or sworn declaration "must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to testify on the
matters stated." Id. Therefore, "summary judgment affidavits cannot be conclusory or based
upon hearsay." Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996)
(internal citations omitted). To the extent Long uses his affidavit to recount and counter facts in
the defendants' affidavits, these statements lack facts made onpersonal knowledge.8
In light of the foregoing principles and submissions, the record establishes the following
facts for the purposes of the Motion for Summary Judgment. The Court draws all permissible
inferences in Long's favor.
•7
The defendants contend that the police reports "are unsworn and unauthenticated" and,
thus, "constitute inadmissible evidence." (Defs.' Reply 11 (citing Fed. R. Civ. P. 56(c).) The
Court need not definitively resolve this dispute. Even assuming their admissibility, the police
reports are largely irrelevant to establishing whether the defendants lacked probable cause or
exigent circumstances. It appears Long relies on the police reports to argue that the officers
lacked probable cause for the GSR Test because the officers failed to interview the witnesses
before ordering the GSR Test. (Brief in Opposition 7-10.) The defendants do not contest this
fact.
8For example, paragraphs 8-11 and 13 recite portions ofthe officers' affidavits and then
point out inconsistencies in the statements. (Long Aff. fl[ 8-11, 13.) Paragraphs 14-16 consist
predominantly of argument. (Id IK 14-16.)
III.
UNDISPUTED FACTS9
A. Long Reports to the Hospital and Speaks with Officer Alexander
After 11:30 p.m. on March 12, 2010, Officer William Alexander reported to Sentara
Careplex Hospital ["Sentara"] in the City of Hampton to investigate an individual who walked
into the emergency room for treatment of a gunshot wound. (Alexander Aff. 1ffl 2-3.) Officer
Alexander found Long in an examination room complaining of a gunshot wound. (Id. ^ 4.)
Long told Officer Alexander that he was walking on the sidewalk along Cunningham Drive,
headed to Wendy's on Mercury Boulevard, from Liberty Estates Apartments, when he heard
eight to ten shots coming from an unknown car. (Id. ^ 5; Long Aff. 12.) Long stated he got on
the ground and waited until the shooting stopped. (Alexander Aff. ^ 5; Long Aff. ^ 2.) An
unknown black male in a Toyota Camry stopped to check on Long. (Alexander Aff. K5; Long
Aff. | 2.) Long explained to the driver that someone shot him and accepted a ride to Sentara.
(Alexander Aff. ^ 5; Long Aff. | 2.) Officer Alexander remained with Long and his mother,
Paulette D. Jones, for twenty to thirty minutes before Officer Steven Nemetz and Detective
Joseph Beres arrived. (Alexander Aff. K5; Jones Aff. ^f 1; Long Aff. ^ 3.)
B. Initial Report of Shooting to Sergeant Meadows
Shortly before midnight on March 12, 2010, First Sergeant James Meadows ("Sergeant
Meadows") received a complaint on his radio regarding shots fired with injury involved at 74
Emeraude Plage, in the City of Hampton. (Meadows Aff. H2.) Basedupon Sergeant Meadows's
9Long seeks to create a dispute as to one fact: a phone call between Detective Beres and
Sergeant Meadows. As discussed below, Long fails to create a genuine dispute as to the officers'
sworn testimony that Detective Beres made the phone call. See infra Part III.D. For this reason,
the facts surrounding the phone call do not prevent the Court from awarding summary judgment
to the defendants.
examination of the physical evidence at the scene of the shooting, he determined that the incident
involved two shooters and believed it highly likely that the two shooters targeted one another.10
(Id. \ 3.) Only one suspect/victim remained at the scene of the shooting, and he required
immediate medical attention due to life-threatening injuries. (Id)
Shortly after midnight, the police dispatcher notified Sergeant Meadows "that a
complaint was received regarding a shooting victim who had been dropped off at [Sentara]." (Id
14.)
Based on [his] training and experience [Sergeant Meadows] believed that the
story that this victim provided was highly questionable since no other shooting
complaints had recently been received by the Hampton Police Division.11 In
addition, based on [his] training and experience [he] believed it was highly
probable that the shooting victim who was dropped off at the hospital. .. was in
fact involved in ... the ... shooting incident in the parking lot near 74 Emeraude
Plage.
(Id. (emphasis added).) This shooting victim was none other than Long himself. Detective
Beres, who was with the victim at the hospital, then informed Sergeant Meadows that Long
described his injury occurring somewhere other than Emeraude Plage. Based uponhis firsthand
investigation and the information that Detective Beres conveyed to him, Sergeant Meadows
Sergeant Meadows found numerous shell casings in two distinct areas of the parking
lot. (Meadows Aff. K3.) One area contained only 9mm casings, while the second contained
only 10mm casings and a 10mm handgun. (Id.)
11 Officer Alexander and Detective Beres also remember no radio traffic about gunshots
at this time except the shooting at Emeraude Plage. (Alexander Aff. f 6; Beres Aff. K 5.)
Indeed, Computer Aided Dispatch ("CAD") records for the period of 11:00 p.m. on March 12,
2010, to 1:00 a.m. on March 13, 2010, show five reports beginning at approximately 11:33 p.m.,
reporting gunshots heard within two to three blocks of Emeraude Plage. (Gardner Aff. Ex. A 24.) The only other report regarding a gunshot occurred at 12:04 a.m., and the location is Sentara
Careplex Hospital. (Id. 16-7, Ex. A 2-4.)
instructed Detective Beres to obtain a Gunshot Residue ("GSR") Test Kit and perform a GSR
Test on the victim. (Id. f 5; Beres Aff. ^ 3.)
C.
The Phone Call and the GSR Test
At this point, the information in Long's affidavit and the officers' affidavits diverge. The
defendants contend that after Long refused to submit to a GSR Test, Detective Beres left the
room, phoned Sergeant Meadows, and then administered the GSR Test over Long's objection.
More specifically, Detective Beres states that upon his arrival, Officer Alexander
summarized Long's statements about the shooting to Officer Nemetz and Detective Beres.
(Nemetz Aff. | 5; Alexander Aff. % Beres Aff. f 4.) Defendant Beres then explained to Long
8;
that he needed to test Long's hands for gunpowder residue. (Beres Aff. % Long refused the
7.)
test. (Id.) Detective Beres left the room briefly to call Sergeant Meadows. (Id. K8; Meadows
Aff. U6.) Detective Beres relayed Long's explanation of how Long was shot on Cunningham
Drive and received a ride from an unknown motorist to Sentara. (Meadows Aff. f 6.) Sergeant
Meadows knew of no reported shooting incidents on Cunningham Drive. (Id. fll.) Sergeant
Meadows explained to Detective Beres that Long lacked the option to refuse the GSR Test due to
exigent circumstances, either because any evidence on Long's hands could dissipate naturally or
from increased perspiration, or because Long could clean it off. (Id. | 9-10; Beres Aff. K8.)
Sergeant Meadows instructed Detective Beres to restrain Long's hands so the officers could
complete the GSR Test if Long continued to refuse. (Meadows Aff. f 9; Beres Aff. ^ 8.)
In response, Long asserts:
3.
At all times, there was a police officer guarding the door of the
emergency room I was in. In the middle of my treatment Det. Beres and Nemetz
entered my room and told everyone they needed to leave. The nurses finished
cleaning the wound and left. My mother moved from beside my bed toward the
doorway and stood there.
8
4. At that time Det. Beres approached me with the GSR testing device in
his hand, at which time he asked for my consent to perform the test on my hands.
At that time I stated "no I'm not taking any test, I'm a victim not a suspect." Det.
Beres then stated "[I] had to take the test because the evidence could be
destroyed." Again, I stated "no, I do not want to take any test." At that time, Det.
Beres looked at the other two officers, which in return one had grabbed my right
upper arm and the other grabbed my left upper arm and forcefully pulled them in
an outward motion so that Det. Beres could swab my hands.
5. To the best of my recollection, I do not remember Det. Beres or the
othertwo officers leaving myroom prior toforcefully swabbingmyhands.
(Long Aff. Yi 3-5 (alteration in original; emphasis added).)
D.
Long Fails to Create a Genuine Dispute of Fact about the Phone Call
Long attempts to refute the officers' sworn testimony that Detective Beres left the room
to phone Sergeant Meadows after Long refused to submit to the GSR Test. Thus, Long seeks to
create a dispute of fact about whether Sergeant Meadows actually knew from Detective Beres
some specific details regarding how Long received his gun shot injury.12
As previously noted, a nonmovant must establish a genuine factual dispute to stave off
summary judgment. SeeAnderson v. Liberty Lobby, Inc., All U.S. 242, 248 (1986). Long fails
to create a genuine dispute. In his affidavit, Long states that "ftjo the best ofmy recollection, I
do not remember Det. Beres or the other two officers leaving my room prior to forcefully
swabbing my hands." (Long Aff. f 5 (emphasis added).) Long's equivocal statement fails to
create fair doubt sufficient to counter the officers' sworn testimony that Detective Beres left the
room to phone Sergeant Meadows. See, e.g., Carroll v. Lynch, 698 F.3d 561, 565 (7th Cir. 2012)
(citing cases for the proposition that "nothing requires the district court to disbelieve defendants'
proffered evidence simply because [plaintiff]—without proof—asserts it is false"); In re
Adamian, No. 98-55610, 1999 WL 1091952, at *3 (9th Cir. Dec. 2, 1999) (finding the statement
12
These details include: (1) the exact location where Longclaimed the shooting occurred,
i.e., Cunningham Drive; and (2) that a motorist unknown to Long dropped him off at Sentara.
9
"at no time did I see any foreclosure notices" insufficient to raise a genuine dispute that trustee
posted no foreclosure notices). Long's ambiguous statement fails to generate a genuine dispute
of fact precluding summary judgment. See M & M Med. Supplies & Serv., Inc. v. Pleasant
Valley Hosp., Inc., 981 F.2d 160, 163 (4th Cir. 1993) ("A motion for summary judgment may not
be defeated by evidence that is 'merely colorable' or 'is not sufficiently probative.'" (quoting
Anderson, All U.S. at 249-50)).
The equivocal nature of Long's testimony contrasts with the definitive character of his
brief wherein he alleges that "not once did any of the defendants leave plaintiffs room to make a
phone call prior to unlawfully swabbing Plaintiffs hands." (Brief in Opposition 2 (citing Long
Aff. U5).) Long may not, however, rely on "mere allegations ... to show there is a genuine
issue for trial." Baber v. Hosp. Corp. of Am., 977 F.2d 872, 875 (4th Cir. 1992) (citing
Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.
1991)).13
Furthermore, Long contends his mother, Paulette Jones, observed the entire interaction
between Long and the officers. Critically, Jones's affidavit lacks any testimony about a phone
call or whether Detective Beres left Long's hospital room to phone Sergeant Meadows. Thus,
the Court can draw no inference favorable to Long about whether Detective Beres made a phone
call or its timing based upon Jones's affidavit.
Because Long establishes no more than
"metaphysical doubt" about the occurrence or timing of the phone call, Long creates no genuine
dispute of fact that precludes summary judgment. Emmett v. Johnson, 532 F.3d 291, 297 (4th
11
Moreover, neither of Long's statements dispute that Detective Beres made a phone call
to Sergeant Meadows. Long simply disputes the call's timing. Nor can Long dispute that
Detective Beres may have made the phone call before entering Long's room after hearing Long's
story from Officer Alexander.
10
Cir. 2008) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)).
IV.
ANALYSIS
The defendants ask this Court to dismiss Long's Fourth Amendment claim because they
had probable cause to conduct the GSR Test and the exigent circumstances exception applies.
(Br. Supp. Mot. Summ. J. 12-15.)
The defendants also assert entitlement to qualified
immunity.14 (Id. at 15-17.)
"Warrantless searches 'are per se unreasonable under the Fourth Amendment—subject
only to a few specifically established and well-delineated exceptions.'"
United States v.
Simmons, 380 F. App'x 323, 329 (4th Cir. 2010) (quoting United States v. Bush, 404 F.3d 263,
275 (4th Cir. 2005)).
The exigent circumstances exception requires that '"police officers
(1) have probable cause to believe that evidence of illegal activity is present and (2) reasonably
believe that evidence may be destroyed or removed before they could obtain a warrant.'" Id. at
330 (quoting United States v. Cephas, ISA F.3d 488, 494-95 (4th Cir. 2001)); see Cupp v.
Murphy, 412 U.S. 291, 295-96 (1973).
"When qualified immunity is asserted, the reviewing court should usually first ask
whether the right was violated on the facts [established at summary judgment], and then
determine whether that right was 'clearly established.'" LeSueur-Richmond Slate Corp. v
Fehrer, 666 F.3d 261, 264 (4th Cir. 2012) (citing Smith v. Smith, 589 F.3d 736, 739 (4th Cir.
2009)); see Pearson v. Callahan, 555 U.S. 223, 236 (2009) ("[W]e conclude that, while the
sequence set forth [in Saucier v. Katz, 553 U.S. 194 (2001)] is often appropriate, it should no
longer be regarded as mandatory.") For the reasons set forth below, Long fails to establish a
violation of his rights under the Fourth Amendment. Thus, the Court need not address qualified
immunity.
11
A. Probable Cause
Probable cause for a search exists "where the known facts and circumstances are
sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a
crime will be found." Ornelas v. United States, 517 U.S. 690, 696 (1996) (citing Brinegar v.
United States, 338 U.S. 160, 175-76 (1949); Illinois v. Gates, 462 U.S. 213, 238 (1983)). The
Court examines the totality of the circumstances "from the standpoint of an objectively
reasonable police officer." Id
Here, as explained below, the totality of the circumstances
establishes probable cause for Sergeant Meadows to believe that Long's hands would contain
evidence of the gun fight occurring at Emeraude Plage.
Fourth Amendment jurisprudence permits Sergeant Meadows to rely upon the
information provided by the police dispatcher, based in turn upon a complaint from an identified
individual.15 United States v. Quarles, 330 F.3d 650, 655 (4th Cir. 2003) (allowing police torely
on tip conveyed by dispatch when caller provided sufficient information to identify himself, thus,
lending to credibility and reliability). Moreover, the collective knowledge doctrine permits
Detective Beres and Officers Alexander and Nemetz to rely on Sergeant Meadows's
determination that probable cause existed to justify the GSR Test. United States v. Joy, 336 F.
App'x 337, 341-42 (4th Cir. 2009) (approving the use of the "collective knowledge" of officers
to establish probable cause (citing United States v. Laughman, 618 F.2d 1067, 1072-73 & n.3
(4th Cir 1980))); see United States v. Massenburg, 654 F.3d 480, 491-96 (4th Cir. 2011) ("[S]o
long as the officer who orders an arrest or search has knowledge of facts establishing probable
15 The dispatch log indicates that a Tim Pipkin from Sentara called in the complaint about
the gunshot victim dropped off at the hospital. (Gardner Aff. Ex. A. 4.)
12
cause, it is not necessary for the officers actually making the arrest or conducting the search to be
personally aware of those facts." (quoting Laughman, 618 F.2d at 1072)).
When Sergeant Meadows ordered Detective Beres to conduct a GSR Test on Long,
Sergeant Meadows knew the following: (1) the shooting near 74 Emeraude Plage involved two
individuals firing at one another; (2) only one injured victim remained at the scene; (3) police
dispatch received a complaint that someone dropped off a gunshot victim at Sentara; (4) prior to
receiving this dispatch, Hampton police received no complaints of gunshots in the vicinity
around that time, other than the shooting incident at Emeraude Plage; (5) the story provided by
the gunshot victim in Sentara conflicted with Sergeant Meadows's knowledge that no other
complaints of gunfire had been registered with the police; and, (7) Officer Meadows recalled no
occasion, in his thirty years as an officer, when someone transported a gunshot victim to the
hospital for treatment and failed to remain to provide a statement to police.
In light of the foregoing circumstances, probable cause existed for the defendants to
believe that Long was involved in the shooting at Emeraude Plage and that his hands contained
evidence of that incident, namely, gunshot residue.
B.
Exigent Circumstances
In addition to probable cause, the defendants must demonstrate exigent circumstances by
establishing that they reasonably believed that evidence of the crime would be destroyed or
removed before they could obtain a warrant. United States v. Watson, No. 11-5126, 2012 WL
2047673, at *1 (4th Cir. June 7,2012) (quoting Cephas, 254 F.3d at 494-95). Factors relevant in
determining whether exigent circumstances exist include: (1) the degree of urgency and amount
of time necessary to obtain a warrant; (2) the officers' reasonable belief of the evidence's
imminent destructibility; (3) information indicating "the possessors of the contraband are aware
13
that police are on their trail"; and, (4) the ready destructibility of the evidence sought. United
States v. Turner, 650 F.2d 526, 528 (4th Cir. 1981) (citing United States v. Rubin, A1A F.2d 262,
268-69 (3d Cir. 1973)). As explained below, these factors establish exigent circumstances
existed at the time of the search.
Based on his extensive experience as an officer, Sergeant Meadows knew that the
gunshot residue was likely to dissipate before he could obtain a search warrant, particularly
given Long's own ability to destroy the evidence.
See United States v. Jones, No. 10-336
JNE/AJB, 2011 WL 1837861, at *5 (D. Minn. Mar. 31, 2011) ("By its nature, gun shot [sic]
residue evidence ... is subject to loss or destruction in the absence of immediate affirmative
efforts to preserve the evidence.") Furthermore, the officers' inquiry gave Long notice of their
suspicion that he had fired a gun. Thus, Long "was sufficiently apprised of his suspected role in
the crime to motivate him to attempt to destroy what evidence he could without attracting further
attention." Cupp, 412 U.S. at 296.16 Because Sergeant Meadows reasonably believed that the
evidence of the crime would be removed or destroyed before police could secure a warrant,
exigent circumstances existed for the warrantless but minimally intrusive GSR Test. See United
States v. Pettiford, 295 F. Supp. 2d 552, 560-61 (D. Md. 2003) (finding exigent circumstances
existed in light of ready destructibility of gunshot residue).
16 In Cupp, the husband of a strangulation victim voluntarily reported to the police
station, and while not arrested, the police had probable cause to believe he committed the
murder. 412 U.S. at 292. The husband refused to submit to a fingernail sample, placed his
hands behind his back, and appeared to rub them together. Id. at 296. The Supreme Court
upheld the warrantless search of his fingernails, holding that the circumstances "justified the
police in subjecting him to the very limited search necessary to preserve the highly evanescent
evidence they found under his fingernails." Id. (citing Schmerber v. California, 384 U.S. 757
(1966)).
14
V.
CONCLUSION
Because probable cause and exigent circumstances existed to justify the GSR Test of
Long's hands, no Fourth Amendment violation occurred. The defendants' Motion for Summary
Judgment will be GRANTED. The action will be DISMISSED.
An appropriate Final Order will accompany this Memorandum Opinion.
Date: ^°l1}
Richmond, Virginia
tMtld States Distridf£udge
15
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