Opinion
Civil Action 17-cv-01439-PAB-NRN
09-14-2020
JASON ALAN CAPPELLI and VINCENT C. TODD, Plaintiffs, v. WILLIAM HOOVER, a Sergeant, Lakewood Police Department, JIMMY TORSAK, a Detective, Lakewood Police Department, MICHAEL GRIFFITH, an Agent, Lakewood Police Department, and JANNA SCHMMELS, an Agent, Lakewood Police Department, Defendants.
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DKT. #143)
N. REID NEUREITER, UNITED STATES MAGISTRATE JUDGE
This case is before the Court pursuant to an Order (Dkt. #144) issued by Chief Judge Philip A. Brimmer referring Defendants William Hoover, Jimmy Torsak, Michael Griffith, and Janna Schimmels' (collectively “Defendants”) Motion for Summary Judgment. Dkt. #143. The Court has carefully considered the motion, Plaintiffs Jason Alan Cappelli and Vincent T. Todd's Response (Dkt. #147), and Defendants' Reply. Dkt. #149. Oral argument was heard on July 13, 2020. See Dkt. #155. The Court has taken judicial notice of the Court's file and considered the applicable Federal Rules of Civil Procedure and case law. Now, being fully informed and for the reasons discussed below, it is hereby RECOMMENDED that the subject motion (Dkt. #143) be GRANTED.
Chief Judge Brimmer set forth the procedural and factual history of this case in a long and detailed Order issued on September 30, 2018. Dkt. #58. The Court will not repeat it here.
Plaintiffs allege that Defendants, law enforcement officers employed by the Lakewood Police Department (“LPD”), used Plaintiff Jason Cappelli's parole officer as a “stalking horse” in order to get access to and search Plaintiffs' residence without a warrant. Based on the briefing and evidence submitted, the parties agree as follows unless noted. Where a dispute exists, I construe the facts most favorably to Mr. Cappelli and Mr. Todd, the nonmovants.
During the relevant period, Mr. Cappelli was a parolee of the Colorado Department of Corrections (“CDOC”). Dkt. #143, Defendants' Statement of Undisputed Material Fact (“DSUMF”) ¶ 1. Plaintiff Vincent Todd was his parole sponsor. Id. ¶ 2. The two resided at located at 12608 W. 1st Place, Lakewood, Colorado. Id. ¶ 4. Mr.
Cappelli's Community Parole Officer (“CPO”) was Matthew Stegner. Id. ¶¶ 5, 17. As part of Mr. Cappelli's conditions of parole, he agreed to “permit visits to his/her place of residence as required by the Community Parole Officer.... (b) Parolee [Cappelli] further agrees to allow the Community Parole Officer to search his/her person, or his/her residence, or any premises under his/her control, or any vehicle under his/her control.” Dkt. #143-9. Pursuant to Parole Sponsor Advisement, Mr. Todd consented to home visits and searches of his residence by CPOs. DSUMF ¶ 3.
CDOC Administrative Regulation (“AR”) 250-49 sets forth parole contact standards, including the minimum amount of contact a CPO is to have with a parolee, which is dependent on the offender's risk factors. See Dkt. #147-3. According to CPO Stegner, home visits are typically conducted in situations where a parolee is considered a higher risk, but they can occur at any time for any reason pursuant to the Parole Sponsor Advisement. DSUMF ¶ 10. Home visits are unscheduled and unannounced, although Plaintiffs argue that they are not required to be under the AR. Id. ¶ 13. When conducting a home visit, CPO Stegner looks for any evidence a parolee is violating his parole. Id. ¶ 11.
CPO Stegner, who has statewide jurisdiction, conducts home visits alone, with cover officers, and often, when there is a concern for officer safety, with additional local law enforcement where the parolee resided. Id. ¶¶ 7, 14-16. 20. CPO Stegner's customary practice is to maintain contact with local law enforcement concerning parolees in their jurisdiction and ask local law enforcement to notify him if they believe a parolee is engaged in criminal, suspicious, or improper behavior. Id. at ¶¶ 20-24.
CPO Stegner's caseload largely consisted of high-risk parolees. Id. ¶ 18. Although in his parole records (“CWISE”) Mr. Cappelli is labeled as both a medium and high-risk offender (compare Dkt. #147-1 at 8 & 38 (identifying him as high-risk) with Id. at 27, 33, 34, & 37 (identifying him as medium-risk)), it is undisputed that CPO Stegner considered Mr. Cappelli to be a high-risk parolee who was to be closely monitored given his history of violence, history of arson and, relatedly, the recurring fires on Green Mountain. DSUMF ¶¶ 19, 31.
Due in part to these fires, on April 17, 2017, CPO Stegner conducted a home visit at Mr. Cappelli and Mr. Todd's residence, during which he observed a camera system and interior door locks, which he considered to be an officer safety risk. Id. ¶¶ 26-28. While the evidence indicates that CPO Stegner communicated with the LPD regarding the investigation into Green Mountain fires (id. ¶¶ 45, 50), it is undisputed that it was CPO Stegner, as Supervising Officer, who made the decision to go back to Plaintiffs' residence for a second home visit, which took place on two days later, on April 19, 2017. Id. ¶ 36, 38, 41. The second home visit was conducted by CPO Stegner and CPO Shefali Phillips, with the assistance of law enforcement officers from the Jefferson County Sheriff's Office and the LPD. Id. ¶ 40. CPO Stegner coordinated with and brought along the other officers for officer safety reasons due to the residence's camera system and interior door locks, Mr. Cappelli's high-risk status, history involving arson (although Plaintiffs point out that Mr. Cappelli has been acquitted of every arson charge brought against him by the City of Lakewood), and the fact that another fire occurred that day. Id. ¶¶ 42-47.
Generally, CPO Stegner directs local law enforcement during parolee home visits. Id. ¶ 51. During the April 19, 2017 home visit, CPO Stegner directed LPD officers, including the named Defendants, to assist in the search of Plaintiffs' residence for any parole violations. Id. ¶ 54. Defendants Griffith and Schimmels were LPD “Agents” Id. ¶¶ 59, 66. Defendant Torsak was an LPD Detective. Id. ¶ 72. Defendant Hoover was an LPD Sergeant Id. ¶ 82. Each Defendant stated in responses to written discovery they entered the home at a parole officer's direction (either directly or, in the case of Agent Schimmels, indirectly through another LPD officer) to assist with the subsequent search, id. ¶¶ 63, 69, 78, & 88, although Detective Torsak was the only one to identify CPO Stegner as that officer. Id. ¶ 76-80.
A stun gun belonging to Mr. Todd was seized during the search; CPO Stegner believed it was a Taser and that it constituted a parole violation. Id. ¶ 55. CPO Stegner then arrested Cappelli for parole violations. Id. ¶ 57. The Parole Board later determined that the cameras and stun gun did not constitute parole violations.
II. LEGAL STANDARDS
a. Summary Judgment Pursuant to Rule 56
A motion for summary judgment serves the purpose of testing whether a trial is required. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1185 (10th Cir. 2003). A court shall grant summary judgment if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A fact is material if it might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The moving party bears the initial responsibility of providing to the court the factual basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “The moving party may carry its initial burden either by producing affirmative evidence negating an essential element of the nonmoving party's claim, or by showing that the nonmoving party does not have enough evidence to carry its burden of persuasion at trial.” Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002). Only admissible evidence may be considered when ruling on a motion for summary judgment. World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985).
If the movant properly supports a motion for summary judgment, the non-moving party has the burden of showing there are issues of material fact to be determined. Celotex, 477 U.S. at 322. That is, the opposing party may not rest on the allegations contained in his complaint but must respond with specific facts showing a genuine factual issue for trial. Fed.R.Civ.P. 56(e); Scott v. Harris, 550 U.S. 372, 380 (2007) (“The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.”). See also Hysten v. Burlington N. & Santa Fe Ry., 296 F.3d 1177, 1180 (10th Cir. 2002). These specific facts may be shown “‘by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.'” Pietrowski v. Town of Dibble, 134 F.3d 1006, 1008 (10th Cir. 1998) (quoting Celotex, 477 U.S. at 324). “[T]he contents of summary judgment evidence must be generally admissible and . . . if that evidence is presented in the form of an affidavit, the Rules of Civil Procedure specifically require a certain type of admissibility, i.e., the evidence must be based on personal knowledge.” Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1122 (10th Cir. 2005). “The court views the record and draws all inferences in the light most favorable to the non-moving party.” Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. PepsiCo, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005).
b. Qualified Immunity
Under the doctrine of qualified immunity, “government officials performing discretionary functions 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). Upon a public official's assertion of a qualified immunity defense, plaintiff bears a “heavy burden” under a two-pronged analysis. Buck v. City of Albuquerque, 549 F.3d 1269 (10th Cir. 2008). Under the first prong of the analysis, a plaintiff is required to “establish that the defendant's actions violated a constitutional or statutory right.” Smith v. Cochran, 339 F.3d 1205, 1211 (10th Cir. 2003) (quoting Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1185 (10th Cir. 2001)). The determination of whether a violation occurs under the first prong of the qualified immunity analysis turns on substantive law regarding that right. See, e.g., Casey v. City of Fed. Heights, 509 F.3d 1278, 1282-83 (10th Cir. 2007).
Under the second prong, the plaintiff must show that the constitutional right at issue was “clearly established” at the time of the defendants' alleged misconduct. Id. “A plaintiff can demonstrate that a constitutional right is clearly established by reference to cases from the Supreme Court, the Tenth Circuit, or the weight of authority from other circuits.” Gann v. Cline, 519 F.3d 1090, 1092 (10th Cir. 2008) (quoting Anderson v. Blake, 469 F.3d 910, 914 (10th Cir. 2006)) (internal quotation marks omitted). A plaintiff need not identify “a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2083 (2011). “[C]ontrary authority from other circuits does not preclude a finding that the law in this circuit was clearly established, if the contrary authority can be distinguished.” Currier v. Doran, 242 F.3d 905, 923 (10th Cir. 2001). “If the plaintiff fails to carry either part of his two-part burden, the defendant is entitled to qualified immunity.” Albright v. Rodriguez, 51 F.3d 1531, 1535 (10th Cir. 1995). The Court may exercise its discretion in “deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances.” Pearson, 555 U.S. at 236.
III. ANALYSIS
Defendants request judgment on Plaintiffs' sole remaining claim for relief: a Fourth Amendment claim arising from the April 19, 2017 home visit and the subsequent search of Plaintiffs' residence. Defendants argue that the search was proper under the special needs exception to the Fourth Amendment's warrant requirement, and therefore they are entitled to qualified immunity. Plaintiffs, on the other hand, argue that Defendants merely used CPO Stegner as a “stalking horse” to conduct their own search.
Defendants also argue that any claim for violation of Mr. Cappelli's Fourth Amendment rights pertaining to his arrest should be dismissed. However, it is undisputed that CPO Stegner arrested Mr. Cappelli, DSUMF ¶ 57, and Chief Judge Brimmer has already determined that CPO Stegner is entitled to qualified immunity on this claim. Dkt. #58 at 22-27. Moreover, Plaintiffs make no argument in their Response regarding Mr. Cappelli's arrest, only Defendants' search of their residence. Accordingly, the Court will not address this aspect of Defendants' motion.
Helpfully, Chief Judge Brimmer has already succinctly set forth the applicable legal authority:
The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ....” U.S. Const. amend IV. “‘A [parolee's] home, like anyone else's, is protected by the Fourth Amendment's requirement that searches be reasonable.'” United States v. Warren, 566 F.3d 1211, 1215 (10th Cir. 2009) (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987)). “Ordinarily, a search of a home is reasonable only if it is authorized by a judicial warrant, which must be supported by probable cause.” Id. However, “what may be a reasonable search when a parolee is the subject of the investigation may be unreasonable when directed against another person.” People v. Anderson, 536 P.2d 302, 304 (1975). “[F]or searches of probationers and parolees and their homes, the Supreme Court has embraced two exceptions to the warrant and probable-cause requirements: (1) a special-needs exception and (2) a totality-of-the-circumstances exception.” Warren, 566 F.3d at 1215.
The special needs exception allows “for a parole officer to search parolees in compliance with a parole agreement search provision, but without a warrant, ” because “[s]upervision [of parolees] . . . is a special need of the State.” United States v. Freeman, 479 F.3d 743, 746 (10th Cir. 2007) (alterations in original) (internal quotation marks omitted). A parolee remains in the CDOC's legal custody and is subject to be returned to a correctional facility “at any time.” Colo. Rev. Stat. § 17-2-207(3). Parole serves not as a discharge from imprisonment but, simply, as a conditional “permit to go outside a correctional facility.” Id., § 17-22.5-203(2). See also People v. Lucero, 772 P.2d 58, 60 (Colo. 1989) (explaining that a parolee has been conditionally released from actual custody but remains in legal custody and is constructively a prisoner of the state). Parole restrictions serve two purposes: ensure rehabilitation and protect the public. Vaughn v. Watt, No. 10-cv-02213-BNB, 2010 WL 4595703, at *1 (D. Colo. Nov. 5, 2010). These twin aims justify the state limiting a parolee's Fourth Amendment rights and consequent expectations of privacy. United States v. Lewis, 71 F.3d 358, 361 (10th Cir. 1995). Accordingly, “[p]arolees do not enjoy ‘the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special parole restrictions.” Id. (quoting Morrissey v. Brewer, 408 U.S. 471, (1982)). A warrantless search “will satisfy the Fourth Amendment's reasonableness requirement to the extent parole agents carried it out pursuant to state law which itself satisfies the Fourth Amendment's reasonableness requirement.” Id. Although “[i]n many cases, the police may . . . search a probationer's premises without a warrant at the behest of the parole officer, ” United States v. McCarty, 82 F.3d 943, 947 (10th Cir.1996), the Tenth Circuit has indicated that the “special needs” exception rests “on the rehabilitative relationship between the parolee and the parole officer, and thus not extending to other law enforcement officers unless they are acting under the direction of the parole officer.” Freeman, 479 F.3d at 748.Dkt. #58 at 16-17.
However, “[w]hile the police may arrest a parolee or search a parolee's premises without a warrant at the behest of the parole officer, a parole officer cannot act as a ‘stalking horse' on behalf of police to assist police in evading the Fourth Amendment's warrant requirement.” McCarty, 82 F.3d at 947.
In this case, the legality of the search of Plaintiffs' residence turns on whether the Defendant LPD officers were “acting under the direction of” CPO Stegner. Defendants have put forward evidence that Mr. Cappelli was on parole and Plaintiffs consented to home visits and searches of their residence by parole officers, including CPO Stegner. The dispositive question, then, is whether there is any genuine issue of material fact that CPO Stegner directed Defendants during the April 19, 2017 search. The Court finds that there is not.
First, CPO Stegner testified at his deposition that he, and not anyone at LPD, made the decision to return to Plaintiffs' residence on April 19, 2017; that other officers were brought as backup to assist his home visit; and that he directed the LPD officers at the scene. See Dkt. #143-1 at 21-26. Plaintiffs point out that CPO Stegner testified that he told “Lakewood” to search for “any violations or anything they were concerned about.” See Dkt. #147-9 at 62-63. However, this does not refute that CPO Stegner directed the search; indeed, it reinforces Defendants' position.
Second, all the Defendants stated in answers to written discovery that they were acting to assist CDOC Parole when responding to and searching Plaintiffs' home. Specifically, Agent Griffith stated that on April 19, 2017, he “was asked to assist with a search of the basement, which was authorized by Parole. [Agent Griffith] also entered the residence at the direction of Parole.” Dkt. #143-5 at 3-4. Agent Schimmels stated that she “was asked by Detective Torsak, who in turn was directed by Parole, to assist Parole by locating Cappelli's clothing.” Dkt. 143-6 at 3. According to Detective Torsak, CPO Stegner asked him “and, implicitly or explicitly, other City of Lakewood Police Agents to assist with the home visit to provide security, to perform a protective sweep of the home, and to otherwise assist parole with the home visit, ” including the subsequent search. Dkt. #143-7 at 3. Finally, Sergeant Hoover stated that as follows:
[O]n April 19, 2017, this Defendant responded to the area of S. Zinnia Way and W. Cedar Drive in reference to a fire that West Metro Fire was trying to get under control. While in the area, this Defendant decided to go by 12608 W 1st Place, Lakewood, Colorado (“residence”) and monitor any foot traffic leaving from this area that might be associated to the fire west of this location in McIntyre Gulch. At the time of this incident, the address was associated with Plaintiff Vincent Todd and Jason Cappelli. Mr. Cappelli was on parole from the Colorado Department of Corrections.
This Defendant observed Cappelli went to the gate at the rear of the residence, entered the yard and went into the sliding glass door. Parole was contacted, and the Parole Officer was informed of this Defendant's observations. Parole was concerned about Cappelli's possible involvement in criminal activity and instructed this Defendant to continue surveillance until Parole could arrive. This Defendant continued to surveil the location to insure Cappelli remained inside until Parole responded to conduct a home check. Parole arrived on scene. At the direction of Parole, contact was made with Mr. Cappelli and Mr. Todd. It is the understanding of this Defendant that Cappelli was found hiding in the basement of the residence. Parole directed this Defendant to look for the clothing Mr. Cappelli was wearing when this Defendant watched Cappelli return to the residence.Dkt. #143-8 at 3-4. Sergeant Hoover also testified that it was his understanding that CDOC Parole “asked to assist them” and “consented” to his entry of the residence. Dkt. #143-4 at 3, 5.
Plaintiffs object that these statements are “conclusory.” This objection is itself conclusory as Plaintiffs provide no evidence to controvert or contradict the Defendants' statements, made under oath. Plaintiffs have the burden of showing with specific facts that there is a genuine issue that CPO Stegner was being used as a stalking horse.
They did not do so. Instead, their argument consists entirely of the following paragraph
A reasonable finder of fact can find that the changing testimony of Matthew Stegner and his specific statement that he told the Lakewood Defendants to search for “any violations or anything they were concerned about” is sufficient to establish that Parole was being used as a stalking horse by the Lakewood Defendants. The further fact that Lakewood Officers decided when to contact Parole for the second home visit provides an additional basis for finding that parole was being used as a stalking horse. The fact that these Defendants, as late as 2 years and four months after this action was commended, could not and did not identify Matthew Stegner, or any other agent of the Colorado Division of Adult Parole, as a witness with any relevant information to any defense they were presenting, is more than adequate for a finder of fact to find that the defense of acting as Parole's agents is a recent invention and sufficient for a finder of fact to conclude that the Defendants used Parole as a “stalking horse” in violation of United States v. McCarty, 82 F.3d 943, 947 (10th Cir. 1996). Accordingly, in the absence of a warrant or other exception, the facts would permit a finder of fact to find Fourth Amendment violations against the rights of both Todd and Cappelli.Dkt. #147 at 9 (footnote omitted). The Court rejects Plaintiffs' invitation to find that there is a triable issue of fact on the “stalking horse” question. Regardless of the conversations CPO Stegner had with LPD officers prior to the search, the undisputed facts are that CPO Stegner is the one who decided to conduct the home visit and then directed the search. He did so based on his belief that Mr. Cappelli was a high-risk parolee with a history of involvement in arsons.
In short, Plaintiffs have offered no specific evidence that Defendants, in searching Plaintiffs' residence, were not acting at the behest and under the direction of CPO Stegner. Pursuant to Tenth Circuit authority, such a search is permitted under the “special needs” exception. See McCarty, 82 F.3d at 947. Thus, no constitutional violation occurred, and Defendants are entitled to qualified immunity.
IV. RECOMMENDATION
For the foregoing reasons, it is hereby RECOMMENDED that Defendants' Motion for Summary Judgment (Dkt. #143) be GRANTED and that judgment enter in favor of Defendants and against Plaintiffs.
NOTICE:
Pursuant to 28 U.S.C. § 636(b)(1)(c) and Fed.R.Civ.P. 72(b)(2), the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Judge assigned to the case. A party may respond to another party's objections within fourteen (14) days after being served with a copy. The District Judge need not consider frivolous, conclusive, or general objections. A party's failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53 (1985), and also waives appellate review of both factual and legal questions.