Blanchard v. Prater et al

Filing 85

MEMORANDUM OPINION. Signed by Judge Elizabeth K. Dillon on 3/31/2019. (bwd)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
NANCY BLANCHARD,
Plaintiff,
v.
SCOTT PRATER, et al.,
Defendants.

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Civil Action No. 7:17-cv-00079
By: Elizabeth K. Dillon
United States District Judge

MEMORANDUM OPINION
Plaintiff Nancy Blanchard brings this action against Scott Prater, an investigator for the
Smyth County Sheriff’s Office; Jonathan Tabor, Special Agent for the Bureau of Alcohol,
Tobacco, Firearms and Explosives (ATF); Doug Tuck, a deputy with the Wythe County Sheriff’s
Office; and Adam Williams, an investigator for the Wythe County Sheriff’s Office.1 Blanchard
brought claims for defendants’ alleged violation of her Fourth Amendment rights and for
malicious prosecution.2 The only claim that remains is plaintiff’s claim that defendants violated
her rights under the Fourth Amendment to be free from unreasonable search and seizure. This
matter is before the court on two motions: 1) defendant Jonathan Tabor’s motion for summary
judgment; and 2) defendants Scott Prater, Doug Tuck, and Adam Williams’s motion for
summary judgment. The motions have been fully briefed and argued before the court. For the
reasons set forth below, the court will grant both motions for summary judgment.

1
2

Blanchard brings suit against defendants in their individual capacities. (Am. Compl. 2, Dkt. No. 31.)

In an earlier opinion and order, the court dismissed a number of claims in the amended complaint. (Dkt.
No. 62.) The court also denied Prater, Tuck, and Williams’s motion to dismiss plaintiff’s request for punitive
damages. (Dkt. No. 62.)

I. FACTUAL BACKGROUND
At the time of these allegations, Nancy and Robert Blanchard were married and living at
the same residence in Rural Retreat, Virginia, although, according to plaintiff, they had separate
entrances and living areas in the home. Ronnie and Wanda Compton3 were staying at the home,
and Jan Vannoy was staying on the property. (Blanchard Dep. 22–23, 28, 78, Dkt. No. 72-1;
Vannoy Dep. 44:1–4, Dkt. No. 74-2.) At approximately 12:55 a.m. on January 9, 2014, and
about one mile from the Blanchard residence, Wythe County Sheriff’s Office (WCSO) deputies
arrested plaintiff’s husband, Robert Blanchard, who was in possession of guns and
methamphetamine. (WCSO Incident Report, Dkt. No. 66-1.) Shortly after, around 1:00 to 2:00
a.m., the Comptons had an interaction with law enforcement. (Blanchard Dep. 126; Compton
Dep. 50:8–14, Dkt. No. 75-1.) Plaintiff claims that police officers prohibited the Comptons from
returning to plaintiff’s residence, but plaintiff was not present for that conversation. (Blanchard
Dep. 126, 137.) Rather, the Comptons, who were in a vehicle, were advised—but not
compelled—by an unknown law enforcement officer to return home when they were in the
vicinity of the Blanchard residence because the police had received a report of two gunshots and
a man with a gun in the woods. (Compton Dep. 29:16–23, 33:11–23.)
Later that day, after learning about Mr. Blanchard’s arrest, Williams called Prater to
discuss the arrest and learned that a confidential informant had arranged to buy
methamphetamine from “Bobby and Nancy” near the Blanchard residence on January 10, 2014.
Williams and Prater believed that Bobby and Nancy referred to Mr. and Mrs. Blanchard.
Williams then called Tabor because he believed there could be a connection between Mr.
Blanchard’s case and a case Tabor had been investigating about truck drivers transporting

3

At the hearing on these motions, defense counsel notified the court that Wanda and Ronnie’s last name is
actually Compton. Earlier in the case, their last name was incorrectly identified as Sutphin.

2

methamphetamine. Prater and Tabor drove to the WCSO to assist Williams and see if they could
learn information related to the truck drivers investigation. Tuck joined the other officers
because he knew plaintiff from another case he worked on years ago. (Williams Dep. 28:8–29:1,
33:7–22, Dkt. No. 66-4; Prater Dep. 29:10–30:19, 36:12–37:5, Dkt. No. 66-5; Tabor Dep. 13:2–
21, 17:15–22, 81:24–84:22, Dkt. No. 66-6, Tuck Dep. 10:7–13:2, 21:20–22:7, Dkt. No. 69-4.)
Prater, Tabor, and Tuck saw Williams preparing the affidavit for the search warrant for
the Blanchard residence. The affidavit contained information from the confidential informant.
They all saw Williams leave to request the search warrant from the magistrate judge. (Prater
Dep. 36:19–37:13, 39:14–40:8, Dkt. No. 69-3; Tabor Dep. 17:1–14, 19:21–21:4, 85:11–22, Dkt.
No. 69-6; Tuck Dep. 24:12–25:21.) At 11:42 a.m. on January 9, 2014, Williams presented his
affidavit for a search warrant to the magistrate. (Search Warrant Affidavit, Dkt. No. 69-5.)
Magistrate Whitlock issued the search warrant at 11:55 a.m. for 543 Red Apple Orchard Road,
Rural Retreat, Virginia, the correct address.4 (Search Warrant, Dkt. No. 69-7.) As depicted in
the photo Williams used during his investigation, the warrant describes the home as “a single
family dwelling with blue vinyl siding and blue shutters” with a “white uncovered porch,” and
includes “any and all outbuildings, vehicles and persons present during the execution of the
search warrant.” (Dkt. No. 69-8; Search Warrant.) Although Williams’ affidavit correctly
identified the suspect as Robert Charles Blanchard, the search warrant erroneously stated
“Richard Charles Blanchard.” (Search Warrant; Search Warrant Affidavit.)
Defendants met at the Virginia State Police Drug Task Force Office in Wytheville, about
twenty to thirty minutes away from the Blanchard residence, before executing the search. Upon
arrival at the Blanchard residence, Williams checked in with the WCSO dispatchers, and the

4

The time of issuance is not in dispute.

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officers secured the perimeter of the residence.5 (Williams Dep. 59:1–10, 60:11–62:4, 81:22–
82:6, Dkt. No. 69-2; Tabor Dep. 23:8–24:19, 26:24–27:3, 83:24–84:17, 85:23–86:5, Dkt. No. 696.) Defendants notified Mrs. Blanchard that they had a search warrant and entered her home.6
Vannoy was at the residence at the time. (Williams 67:1–68:5, Dkt. No. 69-2; Tabor Dep.
27:23–28:7, Dkt. No. 66-6.) During the search, officers found methamphetamine, smoking
devices, and guns. (Search Inventory & Return, Dkt. No. 66-10.)
Throughout the search, Mrs. Blanchard could not freely roam around the house, but she was
not handcuffed, physically restrained, or arrested. (Williams Dep. 70:3–15, Dkt. No. 69-2.) As
Williams and other officers searched the residence, WCSO investigator Denise Cook took
pictures of items identified during the search.7 (Cook Dep. 12:13–18, Dkt. No. 66-13.) Plaintiff
stated that Tabor followed her around the house when she went inside to secure her dogs, asked
for her consent to look through the numbers of her home telephone’s caller ID, which she gave,
told her to take a seat in the living room, and sat next to her until he left the residence.
(Blanchard Dep. 74:5–13, 88:3–11, 134, Dkt. No. 72-1.) Tabor agrees that Mrs. Blanchard told
him that he could look through the caller ID to see numbers Mr. Blanchard had dialed the night
before. (Tabor Dep. 43:16–45:1, Dkt. No. 66-6.)
At some point during the search, Tabor asked to interview Vannoy and Mrs. Blanchard.
Mrs. Blanchard agreed, and he conducted her interview in his government-issued vehicle with
Prater present. Tabor did not handcuff Mrs. Blanchard and told her that she was not under arrest.

5

The parties dispute when defendants arrived at the home and whether they had the search warrant upon

arrival.
6
The parties dispute when Mrs. Blanchard first saw the search warrant. Defendants claim that they
presented it to her upon entry, while Mrs. Blanchard claims that an officer presented it to her hours after the search
concluded. (Compare Tabor Mot. Summ. J. 7 and Prater, Tuck, & Williams Mot. Summ. J. 6 with Mem. Opp’n
Tabor Mot. Summ. J. 7.)
7

The parties also dispute when these photos were taken. (See Tabor Reply Supp. Mot. Summ. J. 3.)

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(Blanchard Dep. 60, 74, Dkt. No. 72-1.) His interview focused on Mr. Blanchard because he
was investigating his connection to the truck drivers transporting methamphetamine. Plaintiff
claims that Prater read her Miranda rights to her during this interview. She went back inside
with Tabor to the living room, he pulled the chair out for her, and sat with her for a little while.
(Blanchard Dep. 62, Dkt. No. 72-1.) After being called a liar by officers other than defendants,
she told Tabor that she wanted to see the search warrant and wanted a lawyer, so Tabor said he
was not going to question her anymore, and he told Tuck that she wanted the warrant and a
lawyer. (Blanchard Dep. 58, 74, Dkt. No. 72-1.) She remained in the living room until they left
because they said to sit there while they finished the search and she thought that is what she was
supposed to do. (Blanchard Dep. 74, Dkt. No. 72-1.) Tabor claims that Mrs. Blanchard only
said she wanted a lawyer and that she would not answer any more questions. (Tabor Dep. 47:1–
24, Dkt. No. 69-6.)
II. DISCUSSION
A. Standard of Review
Summary judgment is appropriate when “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). A genuine issue of material fact exists only where the record, taken as a whole,
could lead a reasonable jury to return a verdict in favor of the non-moving party. Ricci v.
DeStefano, 557 U.S. 557, 586 (2009). “[W]hen a court considers a summary judgment motion,
‘[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn
in his favor.’” Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of
Baltimore, 721 F.3d 264, 283 (4th Cir. 2013) (en banc) (quoting Anderson v. Liberty Lobby, 477
U.S. 242, 255 (1986)).

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A party opposing summary judgment “may not rest upon the mere allegations or denials
of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for
trial.” Anderson, 477 U.S. at 248 (citations omitted). Parties may point to such facts by “citing
to particular parts of materials in the record . . . or . . . showing that the materials cited do not
establish the absence or presence of a genuine dispute.” Fed. R. Civ. P. 56(c)(1). “Moreover,
“[t]he mere existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment.” Anderson, 477 U.S. at 247–48.
Instead, the non-moving party must produce “significantly probative” evidence from which a
reasonable jury could return a verdict in his favor. Abcor Corp. v. AM Int’l, Inc., 916 F.3d 924,
930 (4th Cir. 1990) (quoting Anderson, 477 U.S. at 249–50).
B. The Search of the Home was Lawful and Pursuant to a Valid Search Warrant
Plaintiff alleges that defendants violated her Fourth Amendment rights when they
conducted a search of her home before they had a search warrant and with no exigent
circumstances. Defendants contend that they had a valid search warrant prior to execution of the
search.
The Fourth Amendment protects individuals “against unreasonable searches and
seizures,” guaranteeing their right “to be secure in their persons, houses, papers, and effects.”
U.S. Const. amend. IV. It is well-settled law that “a search conducted without a warrant issued
upon probable cause is ‘per se unreasonable . . . subject only to a few specifically established and
well-delineated exceptions.’” Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (quoting
Katz v. United States, 389 U.S. 347, 357 (1967)). These exceptions “must be narrow and welldelineated in order to retain their constitutional character.” United States v. Yengel, 711 F.3d
392, 396 (4th Cir. 2013) (citing Flippo v. West Virginia, 528 U.S. 11, 13 (1999) (per curiam)). It

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is generally unreasonable for police officers to enter an individual’s home without consent, a
warrant, or exigent circumstances to justify the intrusion. See, e.g., Steagald v. United States,
451 U.S. 204, 211–12 (1981). Searches of the home are particularly significant, as “the Fourth
Amendment has drawn a firm line at the entrance to the house,” and “[a]bsent exigent
circumstances, that threshold may not reasonably be crossed without a warrant.” Payton v. New
York, 445 U.S. 573, 590 (1980).
Based on these principles, the timing of the search here is critical. All parties agree that
the search warrant was issued at 11:55 a.m. If the search was conducted after the warrant was
issued, there is no violation. Otherwise, a violation occurred, given that no defendant argues
there were exigent circumstances. In support of her position regarding timing, plaintiff relies on
a speculative theory of an early-morning establishment of a perimeter around the house and on
her own conflicting memories.
1. Law Enforcement Interaction with the Comptons is Irrelevant to the Case
Plaintiff theorizes that the police were setting up a perimeter around her house in the very
early morning hours in order to conduct a search. In support of this theory, she relies on law
enforcement’s interaction with the Comptons. This interaction, however, in no way supports
plaintiff’s assertion that the search of her residence must have happened before the search
warrant was issued. Indeed, there is nothing in the record connecting the two events.
As noted, Wanda Compton testified that she and her husband were in a car near the
Blanchard residence the night before the search when a law enforcement official approached
their vehicle. He told them they should leave the area for their own safety because there was a
report of a man with a gun in the woods nearby and also a report of shots having been fired. She

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agreed that this could have been around 1:00 a.m. on January 9. (Compton Dep. 49–50, Dkt. No.
80-2.)
Compton’s testimony does not in any way suggest that the police were setting up a
perimeter around the house at that time or that they were preparing to execute a search warrant,
as plaintiff suggests. Nor is that a reasonable inference to ask a jury to draw. To the contrary,
Wanda Compton clearly testified that the officer told them to leave the area because of the man
running through the woods with a gun. (Compton Dep. 25:5–15, Dkt. No. 71-4). Thus, the
incident involving the Comptons is not evidence that the police were setting up a perimeter in
preparation for the search in those early morning hours and does nothing to advance plaintiff’s
theory of a morning search.
Plaintiff also tries to cobble together some meaningful connection between the Compton
incident and the search supposedly occurring in the morning by highlighting Vannoy’s testimony
that the Comptons had said they were turned away twice from accessing the Blanchard
residence. (Supp. Mem. Opp’n Tabor Mot. Summ. J. 1–4, Dkt. No. 80; Vannoy Dep. 64:23–
65:21, Dkt. No. 80-3.) Vannoy’s testimony about what the Comptons said is hearsay and is not
competent summary judgment evidence. But even if it were admissible, Vannoy’s testimony
does not support plaintiff’s theory of the timing of the search. Plaintiff seems to suggest that
because the Comptons were turned away twice, the first time must have been that early morning
incident described by Wanda Compton, and thus—her speculation goes—a perimeter was
already being established at that time. However, Vannoy testified that Wanda Compton said the
first time they were turned away was during the day and not “the night before or middle of the
night.” (Vannoy Dep. 64:23–65:21.) That portion of his testimony, then, actually supports the
conclusion that any perimeter was being enforced during the daylight hours.

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Additionally, plaintiff does not point to any evidence showing that the officers who
interacted with the Comptons were the defendants or in any way associated with the defendants.
All Wanda Compton could say was that it was a male in a brown uniform. (Compton Dep.
50:15–51:1, Dkt. No. 80-2.) In short, there is nothing other than wild speculation connecting any
law enforcement interaction with the Comptons to a search perimeter. The theory simply
provides no support for plaintiff’s contention that her home was searched in the morning hours.
2. Plaintiff’s Memories of the Time of the Search are Contradicted by Her Own
Testimony, the Testimony of Others, and by Other Evidence
Again, the search warrant was issued at 11:55 a.m. Defendants agree that the search
occurred in the afternoon.8 Plaintiff testified that defendants arrived at her home, by convoy,
between 9:00 and 9:30 a.m., Williams left between 10:00 and 10:30 a.m., and Tuck, Prater, and
Tabor left between 1:00 and 1:30 p.m. on January 9. (Blanchard Dep. 55:23–57:16, Dkt. No. 721.) She asserts that a Wythe County Sheriff’s Deputy came to her home at approximately 1:30
p.m. and gave her a copy of the search warrant and that this was the first time she saw it. (Id. at
66:13–67:19.) Despite her testimony, upon review of the evidence, the court finds that no
reasonable jury could credit that testimony in light of all the evidence. It is clear that defendants
searched the Blanchard residence pursuant to a valid search warrant, and there is no genuine
dispute of material fact.
In DiQuollo v. Prosperity Mortg. Corp., 984 F. Supp. 2d 563, 570 (E.D. Va. 2013), the
court stated the relevant principle here: “The law is well established that uncorroborated, selfserving testimony of a plaintiff is not sufficient to create a material dispute of fact sufficient to
defeat summary judgment.” Fourth Circuit law is clear on this point—although credibility
determinations are not made at the summary judgment stage, parties’ differing beliefs about a
8

Tabor asserts that he did not participate in the search of the residence, but, for purposes of this opinion,
the court assumes that he did.

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fact when the plaintiff solely relies on her own self-serving testimony cannot create a genuine
dispute of material fact. See Harris v. Home Sales Co., 499 F. App’x 285, 294 (4th Cir. 2012);
see also Jeffreys v. City of New York, 426 F.3d 549, 555 (2d Cir. 2005) (affirming the district
court’s granting of summary judgment in defendant’s favor when “nothing in the record
[supported] plaintiff’s allegations other than plaintiff’s own contradictory . . . testimony”). The
key question is “whether the non-movant has produced enough evidence to demonstrate that a
‘dispute about a material fact is “genuine,” that is, if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.’” Lovett v. Cracker Barrel Old Country Store,
Inc., 700 F. App’x 209, 212 (4th Cir. 2017) (quoting Anderson, 477 U.S. at 248).
Plaintiff’s testimony about her memory of the time of the search, and how she determined
the time, is contradicted by her own testimony and the undisputed objective evidence in this
case. Plaintiff testified that she was told to sit in the living room until all the defendants left and
that they did not leave her home until around 1:00 or 1:30 p.m. (Blanchard Dep. 74:2–13.)
Notably, her phone was one of the items that was seized. (Search Inventory & Return.)
However, the data from her phone shows that she checked her bank account online and took
pictures of her balance between 12:23 and 12:44 p.m. (Extraction Report, Dkt. No. 74-3.) If the
timing were as she claims, she could not have accessed her phone between 12:23 and 12:44 p.m.
Also, the officers acquired these bank balance photos, so they could not have seized her phone
before 12:23 p.m. In addition, when asked to corroborate her timeline of when the search
occurred, plaintiff stated that she called her son “right after [defendants] had left to let him know
his father was in jail.” (Blanchard Dep. 65:2–21, Dkt. No. 74-4.) However, her son’s cellphone
records show that she called him at 6:48 p.m., again contradicting her argument that defendants
left between 1:00 and 1:30 p.m. (Nicholas Stroupe Celluar Records, Dkt. No. 74-5.)

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Moreover, there are several reasons why plaintiff’s testimony is insufficient to create a
genuine dispute of material fact. Plaintiff’s argument that the photos of items collected during
the search were taken between 9:34 and 11:51 a.m. is unconvincing. (Mem. Opp’n Prater, Tuck,
& Williams Mot. Summ. J. 8, 15–16.) When viewed in the “Apple preview program”—which is
the program plaintiff relies on to argue when the photos were taken—the photos were created in
2000, which is clearly not accurate. (Dkt. No. 71-10.) Additionally, defendants’ expert stated
that the photos’ internal metadata shows that they were taken between 1:34 and 3:52 p.m. on
January 9. (DePue Report, Dkt. No. 66-17.) Defendants’ expert opined that the metadata had
not been altered (id. at 4), and WCSO’s IT officer testified that no one in the Sherriff’s office
could have altered the photos’ metadata (Bowers Dep. 22, Dkt. No. 69-19). Plaintiff provides no
expert testimony to support her claim about the time when the photos were taken or contradicting
defendants’ expert. There is also direct evidence of the time from plaintiff’s own clock. The
search photos include a photo of a digital clock that shows 2:04 on its display, and the metadata
for this photo shows that it was taken at 2:06 p.m. (Dkt. No. 69-18.)
Given the above, there is no genuine dispute that these photos were taken after the
issuance of the search warrant and during the search. No reasonable jury could credit plaintiff’s
lay testimony, or her counsel’s argument, about the timing of the photos from an Apple preview
program, given the overwhelming and incontrovertible evidence, including expert testimony,
contradicting it.
There is also a considerable amount of testimony to support finding that the search was
executed after the search warrant was issued: (1) Tabor testified that he arrived at the WCSO at
approximately 10:30 a.m. and that they left for the residence between 12:00 and 1:00 p.m.,
(Tabor Dep. 17:15–18:18, 69:22–70:10, Dkt. No. 66-6); (2) Cook testified that they arrived after

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lunchtime and left around 6:00 p.m. (Cook Dep. 41:7–43:7); (3) Williams testified that their
arrival time was documented when it was radioed into central dispatch, and, based on the
warrant, that they arrived at 1:20 p.m. and that he left “right at dark,” (Williams Dep. 81:10–
82:2, 103:20–23, Dkt. No. 69-2); (4) Prater testified that when he arrived at the WCSO, before
he went to the Blanchard residence, Williams “was trying to get the search warrant,” and that he
saw Williams come back to the WCSO with a search warrant from the magistrate before they
executed the search warrant, (Prater Dep. 34:13–37:13, 46:12–47:18, Dkt. No. 69-3); (5) Tuck
testified that it “was later on in the morning when . . . they started getting information on the
search warrant and getting it together,” and that Williams went to get the search warrant between
11:00 and 11:30 a.m., (Tuck Dep. 23:22–25:21, Dkt. No. 69-4); and (6) Vannoy (who was
staying on the property) testified that he woke up in the morning when it was “starting to get
daylight,” and by the time defendants arrived to the home, he had drunk two pots of coffee, eaten
breakfast, and had been working on the roof for “a couple hours,”9 (Vannoy Dep. 44:9–22, 61:2–
62:24, 67:8–24, Dkt. No. 74-2).
Finally, the documents related to the search also support an afternoon execution of the
search warrant. The Virginia State Police Investigative Report states that the defendants’
meeting at the Virginia State Police Drug Task Force Office occurred at approximately 12:00
p.m. and that the defendants executed the search warrant at 1:20 p.m. (Dkt. Nos. 69-9, 69-12),
the WCSO dispatch record states that Williams arrived at 1:28 p.m. and left at 5:56 p.m. (Dkt.
No. 66-11), the search inventory and return states that the search was executed at 1:20 p.m.
(Search Inventory & Return), the ATF investigation report states that defendants executed the
9
At the hearing, plaintiff argued that, based on Vannoy’s recollection of the events before the search,
defendants would have arrived to the Blanchard residence around 11:30 a.m. However, plaintiff’s argument is not
compelling. First, plaintiff’s contention is that defendants arrived between 9:00 and 9:30 a.m., not at 11:30 a.m.
Second, Vannoy testified that he considered 1:00 p.m. to still be morning, so the court cannot infer an 11:30 a.m.
arrival from his testimony. (Vannoy Dep. 15:7–8.)

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search warrant at 1:30 p.m. (Dkt. No. 66-9), and the narrative contained in the WCSO incident
report states that the warrant was executed at 1:20 p.m. (Dkt. No. 66-12).
Plaintiff does not offer any evidence to genuinely dispute the overwhelming evidence that
the search was executed in the afternoon, after the issuance of the search warrant. Rather, all she
provides is uncorroborated, contradictory, self-serving testimony that is insufficient to create a
genuine dispute of material fact. See Harris, 499 F. App’x at 294; DiQuollo, 984 F. Supp. 2d at
570. Because the search warrant was issued at 11:55 a.m. and no jury could find that the search
was executed before its issuance, the court finds that there is no genuine dispute of material fact
and that the search of the Blanchard residence was lawful.
C. Defendants Did Not Unlawfully Seize Plaintiff
Plaintiff was not unlawfully seized. “[W]henever a police officer accosts an individual
and restrains his freedom to walk away, he has ‘seized’ that person.” Florida v. Royer, 460 U.S.
491, 512 (1983) (quoting Terry v. Ohio, 392 U.S. 1, 16 (1968)). It is “[o]nly when freedom of
movement is restrained by authority—only when a seizure occurs—[that] the Fourth
Amendment and the probable cause requirement apply.” Craig v. Singletary, 127 F.3d 1030,
1041 (11th Cir. 1997) (citing United States v. Mendenhall, 446 U.S. 544, 555 (1980)). A person
has been seized under the Fourth Amendment “only if, in view of all of the circumstances
surrounding the incident, a reasonable person would have believed that he was not free to leave.”
Mendenhall, 446 U.S. at 545. “[I]n appropriate circumstances the Fourth Amendment allows a
properly limited search or seizure on facts that do not constitute probable cause to arrest or to
search for contraband or evidence of crime. But to justify such a seizure an officer must have a
reasonable suspicion of criminal activity based on specific and articulable facts . . . [and] rational
inferences from those facts.” Royer, 460 U.S. at 512 (internal quotations and citations omitted).

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Plaintiff was interviewed in Tabor’s vehicle with Prater present. She agreed to be
interviewed by Tabor, was not handcuffed, was free to decline Tabor’s questions, and was told
that she was not under arrest. Moreover, Tabor did not make physical contact with plaintiff, did
not display any weapons, and his interview focused on Mr. Blanchard, not the plaintiff.
(Blanchard Dep. 57, 60, 74; Williams Dep. 70; Tabor Dep. 36; Report of Investigation.) Even if
Prater did read plaintiff her Miranda rights and plaintiff subjectively felt that she was not free to
leave, there was no unlawful seizure here. Plaintiff voluntarily consented to the interview, and a
reasonable person in plaintiff’s position would not have believed that she was under arrest. See
Craig, 127 F.3d at 1042–43 (finding that a reasonable person in the plaintiff’s position would not
believe he was under arrest when the plaintiff agreed to go to the police station with the officers,
was not handcuffed, was told that he was not under arrest, and was read his Miranda rights),
United States v. Bowen, 279 F. App’x 468, 469 (9th Cir. 2008) (finding that the plaintiff’s
voluntary consent would “purge the taint of any alleged illegal seizure”); see also United States
v. Redlightning, 624 F.3d 1090, 1105 (9th Cir. 2010) (“[T]he issuance of Miranda warnings as a
cautionary measure does not itself transform the situation into a Fourth Amendment seizure.”)
(citations omitted).
Also, to the extent plaintiff argues she was unlawfully seized because she “did not feel
free to leave the property” (Mem. Opp’n Prater, Tuck, & Williams Mot. Summ. J. n.7, 11), the
law is clear that this does not constitute an unlawful seizure. Officers executing a search warrant
may “detain the occupants of the premises while a proper search is conducted,” and need not
“have particular suspicion that an individual is involved in criminal activity or poses a specific
danger to the officers.” Bailey v. United States, 568 U.S. 186, 193 (2013). It is therefore

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inconsequential that plaintiff did not feel free to leave the property as the search warrant was
executed.
Similarly, to the extent plaintiff implies that Tabor unlawfully seized her when he told
her to sit in the living room and remained seated next to her until he left (Mem. Opp’n Tabor
Mot. Summ. J. 6; Blanchard Dep. 72:5–21), for the reasons discussed above, this was also not an
unlawful seizure. She was not handcuffed, she had been told she was not under arrest, Tabor did
not make physical contact with her, and she consented by sitting down in the living room. Tabor
did not consider her to be in custody. (Tabor Dep. 36:13–21.) Thus, plaintiff’s interaction with
Tabor in the living room was not an unlawful seizure.
For these reasons, plaintiff was not seized in violation of the Fourth Amendment, and
there is no genuine dispute of material fact in that regard.
III. CONCLUSION
For the foregoing reasons, the court will grant defendants’ motions for summary
judgment, and an appropriate order will be entered.
Entered: March 31, 2019.

/s/ Elizabeth K. Dillon
Elizabeth K. Dillon
United States District Judge

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