Opinion
CIVIL ACTION No. 03-2025 GTV
April 14, 2004
MEMORANDUM AND ORDER
Plaintiff Angela Agustonelli brings this action pursuant to 42 U.S.C. § 1983 and Kansas state law alleging that Defendant, Junction City, Kansas police officer Jim Springer, violated her Fourth Amendment right to be free from unreasonable searches and seizures and First Amendment right to privacy, and committed battery on her. The case is before the court on Defendant's motion for summary judgment (Doc. 47) and Defendant's motion to transfer the case to Topeka, Kansas for trial (Doc. 43). For the reasons set forth below, Defendant's motion for summary judgment is granted in part and denied in part, and Defendant's motion to transfer the case is denied.
I. FACTUAL BACKGROUND
The following facts are taken from the pretrial order and the summary judgment record and are either uncontroverted or viewed in the light most favorable to plaintiff's case. Immaterial facts and facts not properly supported by the record are omitted.
On the evening of March 11, 2002, Detective James Springer was driving home with his family when he observed the car of Christopher Johnson in the parking lot of the Bottles Up Liquor Store. Detective Springer had caused a subpoena to be issued to be served upon Mr. Johnson, so he pulled into the parking lot of the liquor store and called the police department so that the subpoena could be delivered to him. While he was waiting in the parking lot, he noticed Angela Agustonelli, co-owner of the liquor store, and Mr. Johnson standing inside the store.
Detective Springer needed Mr. Johnson's testimony at a trial because Mr. Johnson was a victim in a crime that he investigated.
Detective Springer had known Mr. Johnson for a long time. At one point, he worked as a maintenance man in the apartment complex where Mr. Johnson lived and had received reports that Mr. Johnson had smoked marijuana in the laundry room Furthermore, at least two weeks prior to March 11, Detective Springer received a report from two other officers that Ms. Agustonelli had sold drugs from the liquor store.
From his car in the liquor store's parking lot, Detective Springer observed what appeared to him as a drug transaction between Ms. Agustonelli and Mr. Johnson. Both individuals were standing across from each other in front of the counter. Jim Peterson, the other owner of the liquor store, was standing behind the counter at the cash register. Detective Springer believed that he saw Ms. Agustonelli pass a small, whitish plastic bag to Mr. Johnson, and that Mr. Johnson passed her money. After he saw Mr. Johnson put the object in his pocket, Detective Springer backed up his van and drove it across the street to another parking lot. He got out of his van and called the police department on his cell phone, requesting a back-up unit to assist him. Detective Springer then walked across the street and waited by the side of the liquor store until other police officers arrived. When Officer Heldstab of the Junction City police department arrived, Detective Springer informed him about what he had seen and told him that he wanted to go inside the liquor store and frisk Ms. Agustonelli and Mr. Johnson. Detective Springer asked Officer Heldstab to enter the liquor store first because Officer Heldstab was in uniform.
Once he entered the store, Detective Springer ordered Ms. Agustonelli to turn around and place her hands on top of the counter. In her deposition, Ms. Agustonelli testified that Detective Springer came from behind her and "slammed" her down from her back so that her head went on the counter. Ms. Agustonelli resisted Detective Springer's attempts to get her to stay down. She testified in her deposition that "he had to use a little bit of force, because I'm not just going to let anybody slam me down, so at the time he was trying to push me down I'm pretty sure I was restraining, so he had to use a little bit more force to make me go down."
The frisks of Ms. Agustonelli and Mr. Johnson were conducted in the presence of James Peterson, an unknown female customer, and Ms. Agustonelli's twelve-year-old son.
Detective Springer then proceeded to pat down Ms. Agustonelli, who was wearing a windbreaker and a pair of cotton sweat pants. Detective Springer first patted Ms. Agustonelli's upper torso and removed a lipstick that he found in one of her windbreaker's pockets. Ms. Agustonelli testified in her deposition that Detective Springer touched both of her breasts during the pat down, but she admitted in her answers to interrogatories that Detective Springer did not linger in her breast area, nor did he grope her in a sexual manner. Ms. Agustonelli also testified in her deposition that Detective Springer pulled her sweat pants back about five inches, grabbed her underwear, and looked down the back of her pants for drugs or weapons. Finally, Detective Springer patted down Ms. Agustonelli's legs and checked to see if she had hidden any objects in her socks or underneath the tongue of her shoes. He did not make Ms. Agustonelli remove her shoes.
Detective Springer did not find any weapons or drugs as a result of his pat down on Ms. Agustonelli. Officer Heldstab frisked Mr. Johnson and had him empty his pockets, but no drugs or weapons were found. Officer Heldstab also searched the public areas of the liquor store to see if any drugs had been thrown down. Again, no drugs or contraband were discovered in the liquor store.
Ms. Agustonelli denied selling drugs to Christopher Johnson. She told the officers that she handed Mr. Johnson a paper towel because he asked her for something to wipe the sweat off his face, and that Mr. Johnson had placed money on the counter to purchase beer. Neither Ms. Agustonelli, nor Mr. Johnson were arrested.
II. STANDARD OF REVIEW
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Lack of a genuine issue of material fact means that the evidence is such that no reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."Id. at 251-52.
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be met by showing that there is a lack of evidence to support the nonmoving party's case.Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial. Anderson, 477 U.S. at 256. "[A] party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Id. Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. The court must consider the record in the light most favorable to the nonmoving party.Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir. 1984).
III. DISCUSSION A. Fourth Amendment Claim
Defendant argues that he is entitled to summary judgment on plaintiff's Fourth Amendment claim because his search was proper and reasonable under the circumstances. First, he asserts that probable cause existed to arrest Plaintiff because he believed in good faith that she engaged in a drug transaction with Mr. Johnson and because he already had prior information about her involvement with drugs. In support of his position, Defendant first cites cases for the well-established principles that a warrantless search incident to a lawful arrest does not violate the Fourth Amendment, Chimel v. California, 395 U.S. 752, 762-763 (1969), and that an officer may conduct a warrantless search before arresting an individual if "a legitimate basis for the arrest existed before the search" and "the arrest followed shortly after the search." United States v. Anchondo, 156 F.3d 1043, 1045 (10th Cir. 1998) (citations omitted). In addition to having probable cause to effect an arrest, Defendant also claims that exigent circumstances existed, specifically his protection and the need to prevent the destruction of evidence, that justified his warrantless search. Finally, Defendant claims that he is entitled to qualified immunity. The court will address each argument in turn.
i. Plaintiff's Claims Should not be Analyzed as a Search Incident to an Arrest
The court believes that Defendant's reliance on cases discussing lawful searches incident to an arrest is misguided because the parties agree that Plaintiff was never arrested. The court determines that Defendant's actions are better analyzed as a "frisk" under the limitations ofTerry v. Ohio, 392 U.S. 1(1968).
In fact, Defendant contends in the pretrial order that he conducted a lawful Terry frisk.
In Terry, the United States Supreme Court held that:
where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, . . . he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.Id. at 30. Thus, during a valid investigative detention, an officer may conduct a protective pat down of a suspect's outer clothing "if the officer harbors an articulable and reasonable suspicion that the person is armed and dangerous." United States v. Davis, 94 F.3d 1465, 1468 (10th Cir. 1996) (citations omitted). The scope of this search, unlike a search incident to a lawful arrest, is limited to a frisk for weapons. Terry, 392 U.S. at 29. "`The purpose . . . is not to discover evidence of a crime. . . .'" Minnesota v. Dickerson, 508 U.S. 366, 373 (1993) (quoting Adams v. Williams, 407 U.S. 143, 146 (1972)); see Terry, 392 U.S. at 29 (stating that the frisk "is not justified by any need to prevent the disappearance or destruction of evidence of crime"). An officer, however, "may seize nonthreatening contraband detected during a protective patdown search of the sort permitted by Terry." Dickerson, 508 U.S. at 374.
Based on the evidence before the court, there is no question that Defendant had a reasonable suspicion to believe Plaintiff was engaged in some criminal activity and that an investigatory stop was appropriate. The court determines, however, that a reasonable jury could conclude that Defendant's frisk exceeded the scope of a lawfulTerry frisk.
The court will assume, without deciding, that Detective Springer had "an articulable and reasonable suspicion" that Ms. Agustonelli possessed a weapon.
In Terry, the Supreme Court observed that the officer "did not place his hands in [the suspects'] pockets or under the outer surface of their garments until he had felt weapons, and then he merely reached for and removed the guns." 329 U.S. at 29-30. The court further noted that the officer "confined his search strictly to what was minimally necessary," he "did not conduct a general exploratory search for whatever evidence of criminal activity he might find."Id.
Plaintiff alleges that Defendant did not conduct his frisk for officer safety. Additionally, she alleges that the pat down became an instrusive "strip search" when Defendant pulled back the waistband of her cotton sweat pants and underwear and looked down her underwear. After the pat down, Plaintiff alleges that Defendant asked her "Where did you put it?" and that he further stated "I saw you sell a bag of crack cocaine to Chris Johnson." In his deposition, Defendant testified concerning his reasons for patting down Plaintiff:
Q. Now, after the uniformed officers arrived on the scene what did you do?
A. I instructed Officer Heldstab who showed up to come inside with me and I told him what I'd seen and that I told him that I wanted him to pat Mr. Johnson down and that I would pat Angie down and then we'd see what happened from there.
Q. Okay. What were you going to pat Mr. Johnson down for?
A. For officer safety, just something we do right off the bat.
Q. What were you going to pat Ms. Agustonelli down for?
A. The same thing.
Q. What are you trying to find for officer safety, weapons?
A. Weapons.
Although Defendant denies pulling back Plaintiff's sweat pants and underwear, and states that he patted her down only for weapons, the court concludes that plaintiff's testimony creates an issue of material fact as to whether Defendant's frisk violated the Fourth Amendment. plaintiff's allegations, if believed by a jury, provide evidence that Defendant unlawfully searched her underneath her clothing, and impermissibly searched her for evidence of drugs, rather than weapons.
ii. Exigent Circumstances
Defendant also argues that exigent circumstances required him to search Plaintiff before she harmed him with a weapon or destroyed evidence.
Exigent circumstances may excuse a police officer's failure to obtain a warrant. Roska v. Peterson, 304 F.3d 982, 989 (10th Cir. 2002).
The 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 their property or that 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.United States v. Bute, 43 F.3d 531, 537 n. 7 (10th Cir. 1994) (citing United States v. Smith, 797 F.2d 836, 840 (10th Cir. 1986)).
The court determines that Defendant is not entitled to summary judgment based upon exigent circumstances. First, assuming that Defendant had reasonable grounds to believe that Plaintiff possessed a weapon, exigent circumstances do not provide a justification for allegedly pulling back plaintiff's sweat pants and underwear to check for weapons. A frisk along the outer surface of plaintiff's sweat pants would have allowed Defendant to detect the presence of any concealed weapons. Second, the need to prevent Plaintiff from destroying evidence also does not provide a justification for plaintiff's search. Viewing the evidence in a light most favorable to plaintiff's case, a reasonable jury could conclude that Defendant was motivated to search Plaintiff for drugs. Such a motivation is not a valid exigent circumstance, nor is it a lawful purpose for aTerry frisk. See United States v. Zogmaister, No. 03-8005, 2004 WL 352839, at *5 (10th Cir. Feb. 26, 2004) ("If the government could use the exigent circumstances exception to justify warrantless searches when searches were motivated by an intent to seize evidence, officers could conduct warrantless searches for drugs any time they had reason to believe that the suspect possessed a gun or posed a potential danger.").
iii. Qualified Immunity
The court further concludes that Defendant is not entitled to qualified immunity. Qualified immunity shields an individual government official performing discretionary functions from liability for civil damages insofar as his or her 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); Butler v. City of Prairie Village, 172 F.3d 736, 745 (10th Cir. 1999). The relevant inquiry is whether plaintiff's asserted Fourth Amendment rights were clearly established such that a reasonable person in Defendant's position would have known that his conduct violated those rights. Moore v. City of Wynnewood, 57 F.3d 924, 931 (10th Cir. 1995). "In showing that the law was clearly established, the plaintiff does not have to show that the specific action at issue had been held unlawful, but the alleged unlawfulness of the defendant's conduct must be apparent in light of preexisting law." Armijo v. Wagon Mound Pub. Sch., 159 F.3d 1253, 1260 (10th Cir. 1998) (citation omitted). "The plaintiff may satisfy his or her burden by showing that there is a Supreme Court or Tenth Circuit opinion on point, or that his or her proposition is supported by the weight of authority from other courts." Id. (citation omitted). The court will first address plaintiff's arguments in response to Defendant's claim of qualified immunity.
First, Plaintiff argues that her right to be free from unreasonable "strip searches" is, in part, "founded in Kansas statutory law." Specifically, Plaintiff relies on K.S.A. § 22-2521, which outlines the circumstances for when a law enforcement officer may properly conduct a "strip search":
Every strip search conducted by law enforcement officers or employees of a law enforcement agency or department shall be conducted by persons of the same sex as the person being searched and shall be conducted so that the search cannot be observed by any person other than the persons conducting the search, unless the right to privacy is waived by the person being searched.
plaintiff's reliance on this statute is erroneous. "It is . . . irrelevant to plaintiff's action for deprivation of civil rights that the [officer] conducting the strip search may have violated Kansas statutory law." Alien v. Bd. of Comm'rs of the County of Wyandotte, No. 90-2059-O, 1991 WL 183554, at *3 n. 5 (D. Kan. Aug. 6, 1991). "`Section 1983 does not . . . provide a basis for redressing violations of state law, but only for those violations of federal law done under color of state law.'" Id. (citations omitted). The issue is whether Defendant's search of Plaintiff violated her Fourth Amendment protection from unreasonable searches and seizures.
Plaintiff next asserts that her right to be free from unreasonable "strip searches" is established in the Tenth Circuit. For this proposition, Plaintiff cites Chapman v. Nichols, 989 F.2d 393 (10th Cir. 1993) and Hill v. Bogans, 735 F.2d 391 (10th Cir. 1984). Both Chapman and Hill involved individuals that were arrested for minor offenses and taken to jail.Chapman, 989 F.2d at 394; Hill. 735 F.2d at 393-94. While being detained, these people were subjected to strip searches pursuant to blanket strip search policies of the particular jail and they were forced to remove most, if not all, of their clothing. Id. The Tenth Circuit concluded in both cases that the strip searches violated the Fourth Amendment. Chapman, 989 F.2d at 399; Hill, 735 F.2d at 394.
The court questions plaintiff's characterization of Defendant's frisk as a "strip search." Defendant's alleged conduct does not rise to the level of intrusiveness found in either Chapman orHill, nor are the circumstances in those cases similar to this action. The court concludes that these cases are inapplicable to this action.
Defendant's summary judgment brief asserts that "the minimal intrusion of pulling back [Ms. Agustonelli's] pants a few inches does not constitute an illegal strip search" when her privacy interests are balanced against the need for the search. See Bell v. Wolfish, 441 U.S. 520, 559 (1979) (stating that in determining the reasonableness of a search, courts must balance "the need for the particular search against the invasion of personal rights that the search entails"). Because the court has already concluded that a genuine issue of material fact exists as to whether Defendant's conduct exceeded the scope of aTerry frisk, the court will not analyze the reasonableness of the search under Bell. The court, however, reiterates its doubt that Defendant's conduct should be characterized as a strip search.
Nevertheless, the court concludes that Defendant is not entitled to qualified immunity because the limitations of a lawful Terry frisk were well established at the time of his alleged unlawful conduct. Accordingly, Defendant's motion for summary judgment is denied as to plaintiff's Fourth Amendment claim.
B. First Amendment Right to Privacy Claim
Defendant next argues that plaintiff's First Amendment right to privacy claim should be dismissed because the First Amendment does not provide a remedy in the context of an allegedly unlawful police search. Defendant asserts that plaintiff's claim is instead governed by the Fourth Amendment, and in any event, he is entitled to qualified immunity because it is not clearly established that the First Amendment protects Plaintiff in this context. The court agrees.
In support of her claim to a right of privacy under the First Amendment, Plaintiff cites a passage from the Supreme Court's opinion inRoe v. Wade, 410 U.S. 113, 152 (1973), which states:
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8-9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Bovd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S. [479, 484-85 (1965)]; in the Ninth Amendment, id, at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
Contrary to plaintiff's assertions, this passage in Roe merely recognizes that the Supreme Court has used several amendments, including the First and Fourth Amendments, to protect privacy interests. Morever, Plaintiff fails to point to any authority that identifies a right of privacy in the First Amendment based on a claim of an unreasonable search. The court concludes that plaintiff's right of privacy is best examined under the Fourth Amendment's guarantee of an expectation of privacy against unreasonable searches and seizures. The Fourth Amendment provides explicit limitations on the type of government conduct challenged by Plaintiff and should guide the analysis of her claim. See Graham v. Connor, 490 U.S. 386, 395 (1989) (holding that the Fourth Amendment, rather than "the more generalized notion of `substantive due process,'" should govern "all claims that law enforcement officers have used excessive force . . . in the course of an investigatory stop or arrest because the Fourth Amendment provides "an explicit textual source of constitutional protection" against this type of governmental conduct). Even assuming a right of privacy exists in this context under the First Amendment, the court further determines that this right is not clearly established under the relevant law and that Defendant is entitled to qualified immunity. Accordingly, plaintiff's First Amendment claim is dismissed.
C. State Law Battery Claim
Defendant next argues that he is entitled to summary judgment on plaintiff's state law claim for battery because the record lacks any evidence that he intended to injure her.
"In order to establish a battery under Kansas law, plaintiff must show `an unprivileged touching or striking, done with the intent of bringing about either a contact or an apprehension of a contact that is harmful or offensive.'" Holdren v. Gen. Motors Corp., 31 F. Supp.2d 1279, 1286 (D. Kan. 1998) (citations omitted). "Since the force to constitute an assault and battery must be unlawful, the relationship existing between the parties or the official capacity in which defendant acted may afford an excuse or justification, if the privilege is not abused and excessive force employed." Frew v. Teagarden, 205 P. 1023, 1025 (1922) (citation omitted).
"The gravamen of a civil assault and battery is grounded upon the actor's intention to inflict injury." Stricklin v. Parsons Stockyard Co., 388 P.2d 824, 829 (Kan. 1964) (citations omitted).
The court concludes that Defendant is not entitled to summary judgment on this claim. plaintiff's allegations that Defendant pulled on the waistband of her pants and underwear are sufficient to create a genuine issue of material fact as to whether Defendant touched her in an offensive manner. Furthermore, it is the province of the jury to determine from the totality of the circumstances whether Defendant acted with an intent to injure Plaintiff. Accordingly, Defendant's motion for summary judgment is denied as to plaintiff's state law battery claim.
D. Designation of Place of Trial
Finally, Defendant requests that this case be tried in Topeka, Kansas because he, Plaintiff, and the majority of witnesses are residents of Junction City, Kansas and a trial at the Topeka courthouse would be sixty miles closer, and thus, more convenient for them. Defendant further states that since his previous requests to this court asking for a new place of trial, he has developed back problems that would create an additional hardship for him if he were required to travel to Kansas City, Kansas.
"[A] plaintiff's choice of forum should be respected and rarely disturbed." Roberts v. Sedgwick County Sheriff's Dep't, No. 02-2337-JWL, 2004 WL 726822, at *1 (D. Kan. April 2, 2004) (citation omitted). "In considering a request for intradistrict transfer, the court looks to the factors relevant to change of venue motions under 28 U.S.C. § 1404(a)." Wiggans v. Hartford Life Accident Ins. Co., No. 02-2080-JWL, 2002 WL 731701, at *2 (D. Kan. April 15, 2002) (citation omitted). These factors include: (1) "the plaintiff's choice of forum"; (2) "the convenience for witnesses"; (3) "the accessibility of witnesses and other sources of proof; (4) "the possibility of obtaining a fair trial"; and (5) all other practical considerations justifying a trial in another location. Id. (citation omitted). It is the moving party's burden to show that the designated forum is inconvenient. Id. (citation omitted).
The court concludes that Defendant has failed to meet his burden of showing that the Kansas City, Kansas trial location should be disturbed. While the court acknowledges that it might be easier for the parties and witnesses to travel to Topeka for trial, and that Defendant, in particular, would benefit from driving a shorter distance due to his back problems, the court is not persuaded that requiring the parties and witnesses to drive an additional sixty miles for trial justifies a change in venue. Accordingly, Defendant's motion is denied.
IT IS, THEREFORE, BY THE COURT ORDERED that Defendant's motion for summary judgment (Doc. 47) is granted in part and denied in part, and Defendant's motion to transfer the case for trial to Topeka, Kansas (Doc. 43) is denied. Copies of this order shall be transmitted to counsel of record. IT IS SO ORDERED.