Opinion
Civil Action No: 99-0698 SECTION: "L" (4)
January 30, 2001
ORDER AND REASONS
The plaintiff, Stanley Gordy ("Gordy"), filed suit against Jefferson Parish Sheriff Harry Lee and Deputies William Burns ("Burns"), Robert Gerdes ("Gerdes"), and Gerard Simone ("Simone"), individually and in their official capacity, in violation of Title 42 U.S.C. § 1983, Title 42 U.S.C. § 1988, and the Fourth and Fourteenth Amendments to the United States Constitution. On September 18, 2000, the matter came on for non-jury trial upon the consent of the parties pursuant to Title 28 U.S.C. § 636(c).
The prohibition of the Fourth Amendment against unreasonable searches and seizures, which forbids the Federal Government from convicting a man of crime, by using evidence obtained from him by unreasonable search and seizure, is enforceable against the States through the Fourteenth Amendment by the same sanction of exclusion and by the application of the same constitutional standard prohibiting "unreasonable searches and seizures," as defined in the Fourth Amendment. Ker v. California, 374 U.S. 23, 30-34 (1963) (citing Mapp v. Ohio, 367 U.S. 643 (1961)).
I. The Proceedings
Gordy filed this suit, contending that on or about August 28, 1997, he was arrested by Jefferson Parish Sheriff's Detectives ("JPSD"), Burns, Simone and Gerdes, for possession of marijuana with the intent to distribute. Gordy further contends that Lieutenant Glenn Davis received a tip from the United States Drug Enforcement Agency that a package addressed to C. Charles containing marijuana would be delivered to an apartment located at 3409 Severn Avenue, Apt. 226, Metairie, Louisiana, where Gordy lived. Thereafter, the detectives delivered drugs to his apartment, burst into his home and arrested him. He further contends that the officers took some of his and his mother's personal property.
Lieutenant Glenn Davis is an integral player in the circumstances surrounding this claim. Although not a party, he was a witness and at trial he is referenced throughout for the purpose of establishing the facts necessary to properly address the legal issues presented.
Gordy contends that he continuously protested his innocence, but was arrested and charged with possession of marijuana with the intent to distribute. The charges, however, were later dismissed and Gordy instituted this lawsuit seeking damages for false arrest, unlawful search and seizure, negligent investigation, false imprisonment, malicious prosecution and excessive force. A. Trial Testimony 1. The Package
On March 8, 2000, the defendants filed a Motion for Summary Judgment seeking dismissal of the plaintiff's false arrest, illegal search, excessive force and negligent investigation claims, which the Court granted on prescription grounds. The sole claim remaining for the Court's consideration is the malicious prosecution claim.
The evidence adduced at trial showed that on August 28, 1997, at 7:00 p.m., Officer Davis received a call from Agent Dick Slattery of the Drug Enforcement Administration's ("DEA") Task Force in San Diego, California. Davis testified that Slattery told him that the United Parcel Service's ("UPS") loss prevention officer in San Diego had located a package containing approximately 20 pounds of marijuana addressed to "C. Charles" in the Castille Apartments, Apt. 226, on Severn Avenue in Metairie, Louisiana.
2. The Warrant
Davis testified that he swore out an affidavit to secure a search warrant for the apartment based on the information received from Slattery. Davis testified that two hours after receiving the call from Slattery, he submitted the affidavit and an application for a search warrant to Judge Fredricka H. Wicker of the 24th Judicial District Court for Jefferson Parish, Louisiana. Davis testified that Judge Wicker, upon reviewing the affidavit did not ask any questions.
The affidavit was submitted to Judge Wicker at 9:00 p.m. on August 28, 1997. (Exhibits D-1 D-2).
The affidavit stated that the officers would attempt a controlled delivery of marijuana at the address. It further stated that Lt. Davis checked the above address on Severn Avenue and learned that the address was the Castille Apartments and that the mailbox for Apartment 226 read M. Gordy.
(Exhibit D-1).
The warrant stated:
"there is now being concealed certain property, namely illegal drugs to wit marijuana, cocaine and heroine along with drug paraphernalia and U.S. Currency which said property constitutes evidence of the violation of R.S. 40:966 of the Louisiana Revised statutes and that I am satisfied from the affidavit submitted in support that there is probable cause to believe that the aforesaid property is being concealed on or in the premises above described . . . ." `signed Judge Fredricka H. Wicker, Judge, 24th Judicial District Court, Parish of Jefferson.
After securing the warrant, Lt. Davis gave the warrant to Lt. Simone to be executed. Davis did not participate in the search or the arrest. He further denied discussing the matter at anytime with the prosecution or the judge.
Defendant, Lieutenant Gerard Simone, testified that he has been with the Jefferson Parish Sheriff's Office for 21 1/2 years and has been with the Airport Narcotics Interdiction Unit for 14 years.
Simone testified that upon receiving the warrant for execution, he did not read the affidavit or the warrant thoroughly. On the morning of August 29, 1997, he went to the UPS office in Jefferson Parish. He was accompanied by officers, William Burns, Robert Gerdes, and Edward Greer. They picked up the package for delivery to the address. Lt. Simone testified that he did not weigh the package or its contents, but verified the package by comparing the address information with that found in the warrant.
3. The Attempted Delivery
On August 29, 1997, Officer Simone went to the apartment complex and spoke with the manager to obtain a key for execution of the search warrant. He was told by the manager that Mrs. Gordy, a 72-year-old woman, lived in the apartment with her adult son. Thereafter, Officers Burns, Gerdes and Greer attempted the controlled delivery. However, no one was home.
The deliveryman left a note, advising that delivery of the package was attempted and that the occupant should contact UPS. He was later told that a lady called UPS and requested that the package be delivered again. Simone testified that the package remained in the possession of the Jefferson Parish Sheriffs Office until the delivery was made.
4. The Delivery
On September 2, 1997, the same officers and the UPS representative attempted another delivery. Simone testified that the UPS representative went to the apartment while he and the other officers waited downstairs. Gordy testified, however, that Simone was dressed up in a UPS uniform and was in fact the one who delivered the package. He testified that he woke up to a knock at the door of his mother's apartment.
According to Simone, the UPS representative returned without the package and advised the other officers that a man signed for the package with the initials "C.G." Gordy testified that he signed for the package using his nickname "Chuck Gordy." The receipt was not produced as evidence during trial and nor was the UPS representative called as a witness.
After closing the door, Gordy placed the box near the front door and went to the restroom. When he returned to the living room, he read the label on the box and saw that the package was addressed to "C. Charles." Gordy stated that he decided to call UPS to let them know that they delivered the package to the wrong address.
According to Simone, the officers waited a couple of minutes to allow time for the recipient to open the box and then they approached the apartment. As they walked toward the apartment, Gordy came out onto the landing in front of the apartment. Gordy denied observing the officers. He testified that he stepped out of the apartment door to go to a nearby McDonald's Restaurant, but realized that he did not have enough money. He re-entered the apartment to get his wallet and locked the door behind him.
The officers thought that they were spotted and rushed to the apartment and knocked on the door. When there was no answer, Lt. Simone forced the door open with his shoulder.
5. The Search
Gordy testified that while he was looking for his wallet, the door burst open and four officers in plain clothes entered with guns drawn. The package was sitting on the floor by the front door unopened at the time the officers entered the apartment.
Gordy testified that he was handcuffed and left lying on the floor while the officers searched and ransacked the house. Lt. Simone testified that the officers searched the apartment looking for any drug related evidence, even though they had the box and Mr. Gordy in custody.
He testified that they later read him his rights, moved him to a chair where Lt. Simone questioned him about the contents of the box. Gordy testified that he denied any knowledge of the box's contents. According to Gordy, Lt. Simone, thereafter used a cellular telephone to call another officer to come to the apartment. The officer who allegedly arrived after Simone used the cellular phone was never identified. However, Gordy testified that it was the unidentified officer that stole personal items from the apartment and slapped him across the face. The defendants dispute Gordy's account of the unidentified officer.
Gordy testified that he and the officers remained in the apartment for over two hours, until the red mark caused by the blow to his face dissipated. He was taken to the Sheriff's Office and booked for possession with intent to distribute marijuana. Gordy testified that although he advised the booking officer that he had been hit in the face, he was not provided with any medication.
B. The Police Report
After the arrest, a police report was prepared by Officer Burns, rather than Lt. Simone because he injured his shoulder while executing the warrant. Simone left the scene and sought medical treatment. The report was prepared by William Burns and signed by Lt. Simone, who admittedly did not read the report before his name was placed on it.
Officer Burns was not called as a witness at trial.
Simone testified that although Gordy denied knowledge of the contents of the package, Burns did not mention this fact in the report. Simone also recalled that although they delivered the package, it was not opened when they entered the premises. Again this fact was not mentioned in the police report.
Simone recalled that the UPS deliveryman was not mentioned in the report as participating in the controlled delivery. Simone also confirmed that although the report reflects that the box contained 15 pounds of marijuana, the affidavit used to obtain the warrant indicated that the box weighed 20 pounds.
C. The Prosecution
On March 2, 1998, Gordy was scheduled to be tried on the charge of possession of marijuana with the intent to distribute. However, the judge dismissed the charges. Gordy also acknowledged that, at his request, the record of the proceedings was expunged.
II. Analysis A. Malicious Prosecution
The United States Fifth Circuit has recognized that malicious prosecution implicates the rights guaranteed by the Fourth Amendment and is therefore actionable under Title 42 U.S.C. § 1983. See Piazza v. Mayne, 217 F.3d 239 (5th Cir. 2000); Keko v. Hingle, No. 98-2189, 1999 WL 508406 (E.D. La. July 8, 1999), aff'd, 207 F.3d 658 (5th Cir. 2000). The Court looks to the elements of this tort as defined under the law of the relevant state in determining whether a plaintiff has established a claim for malicious prosecution under Section 1983. Piazza, 217 F.3d at 245; Muhammad v. State of Louisiana, No. 99-3742, 2000 WL 1511181 (E.D. La. Oct. 6, 2000). Therefore, Louisiana law applies to Gordy's malicious prosecution claim.
The Fourth Amendment contains certain inherent restrictions:
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated and no warrants shall issue but upon probable cause, supported by oath or affirmation and particularity describing the place to be searched and the persons or other things to be served. U.S. CONST. amend IV (emphasis added).
In order to establish malicious prosecution under Louisiana law, Gordy must prove the following:
1) a criminal action was commenced against him; 2) the prosecution was caused by the defendants or with their aid; 3) the criminal action terminated in his favor; 4) the defendants acted without probable cause; 5) the defendants acted with malice; and 6) the criminal proceeding caused him damage.Piazza, 217 F.3d at 245 (citing Miller v. East Baton Rouge Parish Sheriff's Dept., 511 So.2d 446, 452 (La. 1987)); Williams v. DiVittoria, 777 F. Supp. 1332, 1337 n. 6 (E.D. La. 1991) (citing same).
Compare Keko v. Hingle, No. 98-2189, 1999 WL 508406 (E.D. La. July 8, 1999). In Keko, the Court addressed a motion to dismiss filed by the defendant, a Louisiana Sheriff, seeking dismissal of the plaintiff's malicious prosecution claim brought under Section 1983. In reaching its decision, the trial court set forth the elements of a claim for malicious prosecution and included the six elements listed above and one additional element, "that the plaintiff was innocent." The trial court cited the United States Fifth Circuit Court of Appeals' opinion in Kerr v. Lyford, 171 F.3d 330, 340 (5th Cir. 1999), which used this seventh element of the crime in its analysis. However, the Kerr Court was relying on Texas law, and not Louisiana law. Texas law defines malicious prosecution to include this seventh element. See also Pete v. Metcalfe, 8 F.3d 214 (5th Cir. 1993) (also relying on Texas law). Since Louisiana law does not, this Court need not consider the innocence factor.
The first and second elements of Gordy's malicious prosecution claim have be established. The parties do not dispute that Gordy was arrested as a result of the warrant obtained by Lt. Davis and charged by Bill of Information in Jefferson Parish for possession with intent to distribute marijuana. This satisfies the first and second elements that a criminal prosecution be commenced and/or continued as a result of the defendants' acts.
In the instant matter, the charge against Gordy was dismissed by the prosecutor on March 2, 1998. Under Louisiana law, a dismissal of the criminal charges is considered a termination in favor of the accused. Walls v. State of Louisiana, 670 So.2d 382, 385 (La.App. 3rd Cir.), writ denied, 692 So.2d 368 (La. 1996). Gordy therefore satisfied the third prong of his malicious prosecution claim.
See footnote 2, supra on prescriptive period.
In Louisiana, if the criminal charges are dismissed prior to trial, a presumption arises that the defendants acted both without probable cause and with malice. Ahmad v. Fireman's Fund Ins., No. 95-0839, 1996 WL 125928 at 3 (E.D. La. Mar. 18, 1996); Williams, 777 F. Supp. at 1337; Watson v. Church's Fried Chicken, Inc., 527 So.2d 979, 981 (La.App. 4th Cir.), writ denied, 532 So.2d 135 (La. 1988)); McCoy v. Burns, 379 So.2d 1140, 1142 (La.App. 2nd Cir. 1980). In such cases, the burden shifts to the defendants to prove the presence of probable cause and the lack of malice. Williams, 777 F. Supp. at 1338 (citing Ballard v. Mock, 550 So.2d 1208, 1212 (La.App. 4th Cir. 1989)).
In the instant case, the burden therefore shifted to the defendants to show that they had probable cause and no malice. The defendants contend that the state court judge issued the warrant after determining that there was probable cause that a crime had been committed. They suggest that because they relied upon the search warrant issued by the judge, their actions were reasonable.
Normally, the Court will look to state law to determine the lawfulness of an arrest by a state officer for a state offense. Michigan v. DeFillippo, 443 U.S. 31, 36 (1979). However, in a Section 1983 action, a plaintiff alleging unlawful search and arrest by state officers, asserts that he was deprived of rights secured by the federal constitution or federal statute. Therefore, state law governing searches and seizures does not control. Hart v. O'Brien, 127 F.3d 424 (5th Cir. 1997) (citing Fields v. City of South Houston, Tex., 922 F.2d 1183, 1189-90 n. 7 (5th Cir. 1991)), cert. denied, 525 U.S. 1103 (1999).
In United States v. Leon, 468 U.S. 897 (1984), the United States Supreme Court held that in determining whether a particular affidavit establishes probable cause, "great deference" is afforded to a judicial officer's determination. Id. at 914. See also Illinois v. Gates, 462 U.S. 213, 236 (1983); Spinelli v. United States, 393 U.S. 410, 419 (1969); United States v. Ventresca, 380 U.S. 102, 108-109 (1965).
Deference to the judicial officer, however, is not boundless. First, it is clear that the deference accorded to a judicial officer's finding of probable cause does not preclude inquiry into the knowing or reckless falsity of the affidavit on which that determination was based. Franks v. Delaware, 438 U.S. 154 (1978). Second, the courts must also insist that the judicial officer purport to "perform his "neutral and detached' function and not serve merely as a rubber stamp for the police." Illinois, 462 U.S. at 239.
A judicial officer failing to "manifest that neutrality and detachment demanded of a judicial officer when presented with a warrant application" and who acts instead as "an adjunct law enforcement officer" cannot provide valid authorization for an otherwise unconstitutional search. Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326-327 (1979).
B. Search Warrant-Requirements
All search warrants must (1) be based on facts that establish probable cause; (2) particularly describe the place to be searched; (3) particularly describe the things to be seized; and (4) be issued by a neutral and detached judicial officer.
The Fourth Amendment plainly requires that a warrant issue only "upon probable cause, supported by oath or affirmation . . ." U.S. CONST. amend. IV.
Louisiana Code of Criminal Procedure Article 162 provides that a search warrant may be issued "only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for the issuance of the warrant." LA. CRIM. PROC. art. 162.
An anticipatory search warrant must meet two additional criteria. First, an affidavit seeking an anticipatory search warrant must show that the evidence is on a sure and irreversible course to its destination. Second, an anticipatory search warrant must provide adequate judicial control of the warrant's execution. The issuing court should list clear, narrowly drawn conditions in the warrant controlling the discretion of the police executing the warrant. Lewis R. Katz Paul C. Giannelli, Anticipatory Search Warrants, 1 OHPRAC CRIM L. § 5.18 (1996).
1. Traditional Warrant
For a traditional search warrant to issue, evidence must be provided to establish probable cause to believe that the item subjected to a search is then situated at a particular location or on a particular person, or that evidence exists to believe that a crime has been committed. 68 AM JUR. 2D, Searches and Seizures §§ 60 et seq. (2000) (emphasis added).
2. Anticipatory Warrant
A warrant is anticipatory when it is issued based on a showing of future probable cause to believe that an item will be at a specific location at a particular time in the near future. Thus, an anticipatory warrant, also known as a prospective or conditional warrant, differs from a traditional search warrant in terms of the point at which probable cause for a search exists: the critical time for analyzing probable cause for an anticipatory warrant is at the time of its execution, rather than its issuance.
James A. Adams, Anticipatory Search Warrants: Constitutionality, Requirements, and Scope 79 Ky.L.J.681 (Summer, 1990) (emphasis added).
Id.
For example, instead of allowing law enforcement to search forthwith, the judicial officer issuing an anticipatory warrant may require that a shipment of contraband currently in transit arrive at the desired location before allowing the warrant to be executed. If the warrant is executed before the evidence has been delivered, or if the evidence is never delivered, the warrant is void. The events which must occur before the warrant can be executed, such as the arrival of contraband, are referred to as the warrant's "triggering events" or "conditions precedent." 3. Probable Cause
The Fifth Circuit approved of the use of anticipatory search warrants in appropriate circumstances in United States v. Wylie, 919 F.2d.969 (5th Cir. 1990). See also State v. Snee, 743 So.2d 270 (La.App. 4th Cir. 1999).
United States v. Garcia, 882 F.2d 699, 703 (2nd Cir.), cert. denied, 493 U.S. 943 (1989).
United States v. Hugoboom, 112 F.3d 1081, 1085 (10th Cir. 1997); see also United States v. Hotal, 143 F.3d 1223, 1227 (9th Cir. 1998).
See e.g., Hotal, 143 F.3d at 1226 (requiring that package be received and taken into residence prior to warrant's execution); United States v. Gendron, 18 F.3d 955, 965 (1st Cir.) (requiring delivery by mail to and receipt by, Daniel Gendron of a specifically described parcel), cert. denied, 513 U.S. 1051 (1994).
Whether the warrant issued is traditional or anticipatory, the warrant cannot issue without a finding of probable cause whether upon issuance, as in the case of a traditional warrant, or execution, as in the case of an anticipatory warrant. Probable cause exists when the facts available at the time of the arrest would support a reasonable person's belief that an offense has been, or is being committed and that the individual arrested is the guilty party. Blackwell v. Barton, 34 F.3d 298, 303 (5th Cir. 1994).
Probable cause may exist even though officers have observed no unlawful activity and are unaware of the identity of the defendant. United States v. Pentado, 463 F.2d 355, 361 (5th Cir.), cert. denied, 409 U.S. 1079 (1972). "The observation of unusual activity for which there is no legitimate, logical explanation can be the basis for probable cause. " United States v. Alexander, 559 F.2d 1339, 1343 (5th Cir. 1977), cert. denied, 434 U.S. 1078 (1978).
However, "a persons mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person." Hart, 127 F.3d at 444 (citing Ybarra v. Illinois, 444 U.S. 85, 91 (1979)). "Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person." Id.
4. The Affidavit
The facts which form the basis for probable cause to issue a search warrant must be contained "within the four corners" of the affidavit. Aquilar v. Texas, 378 U.S. 108 (1964). A judicial officer must be given enough information to make an independent judgment that probable cause exists for the issuance of the warrant. See Illinois, 462 U.S. at 239. The judicial officer must consider the facts and circumstances in a practical, common sense manner and make an independent assessment regarding probable cause. United States v. Peden, 891 F.2d 514 (5th Cir. 1989) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). Further, the evidence must provide the judicial officer with a "substantial basis" for his determination. Illinois, 462 U.S. at 239.
The affidavit used to support the issuance of the warrant in this case stated that Lt. Davis received information from a person who identified himself as DEA Agent Dick Slattery in San Diego, California. Agent Slattery informed Davis that a UPS Loss Prevention Officer notified him that a drug dog had targeted a package.
Agent Slattery indicated that he had examined the package and tested the contents which he determined to be marijuana weighing approximately 20 pounds. The affidavit noted that the package was addressed to C. Charles, but that the name on the mailbox was M. Gordy. The affidavit also stated that " upon arrival of the package containing the marijuana a controlled delivery will be attempted at 3409 Severn Ave. Apt. 226 Metairie, Louisiana Officers request that a search warrant for this apartment be issued subsequent to this delivery." (Exhibit D-1) (emphasis added). The application affidavit was sufficient for the judge to issue an anticipatory warrant. The Court will now consider whether there was probable cause for the judge to issue the warrant at issue in this case.
A controlled delivery occurs where an undercover police officer poses as a postal delivery person or as an employee of a private carrier or the police uses a postal delivery person to personally transfer the contraband to someone at the suspected address. Illinois v. Andres, 463 U.S. 765 (1983) (delivery of a container concealing drugs into defendant's possession by government agents posing as delivery men); United States v. Musgrave, 726 F. Supp. 1027 (W.D.N.C. 1989) (government agent posed as a delivery person and delivered pornography to defendant). See e.g., United States v. Peden, 891 F.2d 514 (5th Cir. 1989) (observed mail delivery of child pornography).
5. The Warrant
The search warrant issued by the judge had the following language:
"AFFIDAVIT(S) HAVING BEEN MADE BEFORE ME BY Lt. Glenn Davis, of the JEFFERSON PARISH SHERIFF'S OFFICE, that he has a good reason to believe that on or in 3409 Severn Ave. Apt. 226 Metairie, Louisiana being a multi-dwelling unit Red and Brown Brick trimmed in beige Apt. 226 on the northwest corner of the building having the door facing eastward #226 located on the knocker on said door located within the Parish of Jefferson, State of Louisiana, there is now being concealed certain property, namely, Illegal drugs to wit marijuana, cocaine and heroin along with drug paraphernalia and US Currency which said property constitutes evidence of the violation of R.S. 40:966 of the Louisiana Revised Statutes, and as I am satisfied from the affidavit(s) submitted in support of the application for this warrant that there is probable cause to believe that the. aforesaid property is being concealed on or in the premises above described, and that the aforesaid grounds for the issuance of this search warrant exist: YOU ARE HEREBY ORDERED to search `forthwith' . . ." (Exhibit D-2).
Although the application was for an anticipatory warrant, the warrant actually issued by the judge directed the premises be searched "forthwith." The warrant did not contain information regarding the conditions precedent or any indication that it was anticipatory. However, the affidavit supported a finding of probable cause that upon delivery, marijuana would be located at the address.
Two issues are raised as a result of the discrepancy between the warrant and the affidavit. First, whether the warrant authorizing a search "forthwith" lacks probable cause for the search, when the affidavit only supported the issuance of an anticipatory warrant Second, whether the cure by affidavit doctrine would permit the application affidavit to cure the defect in the warrant.
a. Particularity
In the area of anticipatory warrants, courts require that the conditions precedent be "explicit, clear, and narrowly drawn." United States v. Ricciardelli, 998 F.2d 8, 12 (1st Cir. 1993). This is so because before the triggering event occurs, probable cause to search does not exist.
In this case, however, a traditional warrant was issued when the application affidavit supported only the issuance of an anticipatory warrant. The issue of whether there was probable cause for the issuance of the traditional warrant was squarely addressed by the Ninth Circuit in United States v. Hotal, 143 F.3d 1223 (9th Cir. 1998).
In Hotal, the Magistrate Judge issued a warrant which authorized and directed law enforcement officers to search the premises forthwith, without qualifying language to inform the police that the warrant could not be served until the contraband had been delivered. When the warrant was issued, there was no probable cause to expect that the drugs were in the premises; the probable cause requirement was satisfied only when the drugs were delivered. The warrant that the judge issued was beyond the scope justified by probable cause, because there was no justification for searching "forthwith." A warrant that authorizes more than probable cause would allow is void. Hotal, 143 F.3d at 1225-26.
In this case, the issuing judge made the same mistake as the judge in Hotal. She issued a traditional warrant when the affidavit only supported the issuance of an anticipatory warrant. The warrant therefore was void. This, however, does not end the inquiry. Courts have been cautioned against hyper-technical evaluations of warrants. United States v. Gendron, 18 F.3d 955, 966 (1st Cir.), cert. denied, 513 U.S. 1051 (1994).
b. Cure by Affidavit
The next issue is whether an affidavit, which contains information regarding the conditions precedent, would be sufficient to cure the warrant which does not contain the conditions precedent and provided for execution "forthwith." This issue has not been addressed by the Fifth Circuit.
However, in the context of a general warrant, the Fifth Circuit, in United States v. Beaumont, 972 F.2d 553 (5th Cir. 1992), cert. denied, 508 U.S. 926 (1993), considered the issue of whether a generalized warrant lacking particularity, can be cured by relying upon the affidavit, when it is incorporated into the warrant and attached to it during the execution of the warrant.
In Beaumont, the warrant contained only a generalized statement that "evidence of the commission of a criminal offense as well as contraband and the fruits of the crime" were to be seized. Id. at 560. In upholding the validity of the warrant, the Court noted that the affidavit provided specific information of the objects of the search even though the warrant did not do so. The Court also noted that the executing officer was the affiant and that the additional officers had personal knowledge of the objects to be searched. Id.
In the context of an anticipatory warrant, the Seventh Circuit has held that where the affidavit supplies the requisite specificity needed to uphold a challenged warrant and the warrant was issued subject to the conditions of the affidavit, the anticipatory warrant is valid. United States v. Dennis, 115 F.3d 524 (7th Cir. 1997). The Ninth Circuit, however, requires that the conditions precedent to the search be apparent from the face of the warrant. See Hotal, 143 F.3d at 1227.
The Second, Sixth, Eighth, and Tenth Circuits have adopted a "no harm no foul approach." That is, the warrant is valid so long as the conditions precedent to its execution were contained in the affidavit and were actually satisfied before the warrant was executed. United States v. Hugoboom, 112 F.3d 1081 (10th Cir. 1997); United States v. Moetamedi, 46 F.3d 225 (211d Cir. 1995); United States v. Bieri, 21 F.3d 811; 815 n. 3 (8th Cir.), cert. denied, 513 U.S. 878 (1994); United States v. Rey, 923 F.2d 1217, 1221 (6th Cir. 1991).
Implicit in these cases, however, is the assumption that the executing officers were aware of the affidavit's content. The "no harm no foul" approach ignores the balancing test required by the Fourth Amendment; balancing the interest of the government agents and the private citizen, thereby ensuring that the agents who invade an individual's privacy do so only when probable cause exists at the time of the intrusion. Bell v. Wolfish, 441 U.S. 520, 558 (1979).
It is this Court's opinion that if the affidavit was incorporated by the warrant or accompanied the warrant during its execution, and the executing officer had knowledge of the affidavit's content, the anticipatory search warrant would be valid. In other words, although the warrant did not contain the triggering event on its face, the executing officer would have been sufficiently restrained, if the condition were contained in the affidavit and the executing officer had knowledge of its contents.
In this case, however, there was no testimony regarding whether the affidavit accompanied or was attached to the warrant. Further, the executing officer, Simone, only testified that he read the warrant to verify the address included in the warrant and the affidavit. In fact, the only testimony presented indicated that Simone, did not read the warrant or the affidavit thoroughly. Furthermore, the warrant on its face did not incorporate the affidavit.
c. Scope of the Warrant
The next issue for the Court's consideration is whether the scope of the warrant was consistent with the probable cause created by the affidavit. In so doing, the Court will compare the scope of the warrant to the scope of the affidavit.
The warrant at issue specified the addressed to be searched as 3409 Severn Avenue Apt. 226 Metairie, Louisiana, which was supported by the affidavit. The warrant further authorized the defendants to search for marijuana, which was also supported by the affidavit.
In addition to marijuana, the warrant authorized the defendants to search for cocaine, heroine, drug paraphernalia and U.S. Currency. However, the affidavit does not contain any information regarding cocaine, heroine, drug paraphernalia or U.S. Currency. Finally, the affidavit noted that the box was addressed to C. Charles.
A search warrant may not rest upon mere affirmance or belief without disclosure of supporting facts or circumstances. Nathanson v. United States, 290 U.S. 41 (1933). The affidavit in support of a warrant should be tested in a realistic common sense fashion. See Ventresca, 380 U.S. at 102. In evaluating the appropriate scope of warrants, the affidavits in support of the warrants should demonstrate probable cause to believe additional evidence is on the premises.
See footnote 13, supra.
In this case, the warrant permitted the defendants to search for drugs other than marijuana, even though the affidavit did not provide probable cause to believe that any other drugs were on the premises. Further, there was no testimony presented at trial to suggest that the judge was provided additional information about Gordy that would have supported her decision to include reference to cocaine, heroine and drug paraphernalia. In fact, Lt. Davis' testimony suggests that he was only aware that marijuana would be delivered.
Davis did not insert any conclusions in the affidavit indicating that there was additional evidence that could fairly be expected to be present at the place to be searched, in light of the facts or his experience and training in narcotic investigations. Yet, despite this discrepancy, he submitted the affidavit and subpoena to the judge for execution. Further, without limiting the scope of the search, the judge issued the warrant to include a search for heroin, cocaine, drug paraphernalia and U.S. Currency.
In United States v. Rey, 923 F.2d 1217 (6th Cir. 1991), the Sixth Circuit considered a case factually similar to the case at bar. In Rey, a criminal case, a package was addressed to Grace Richardson from David Richardson. The package was sent from the Virgin Islands to Nashville Tennessee, 826 Murfreesboro Road, Apt. C-28.
The package was intercepted by DEA officials and it was determined that the package contained cocaine. The officials arranged for a controlled delivery using the postal inspector and secured a search warrant for the address. Rey accepted delivery of the package addressed to Grace Richardson. Once Rey attempted to leave the premises he was arrested.
The package was found unopened, within a foot or two of the door. The officers executed the search warrant for the apartment which led to the discovery of a variety of electronic equipment. The officers also found a printed funeral service for Grace Richardson. Rey, 923 F.2d at 1219.
Rey challenged the affidavit, contending that a search warrant existed only for the seizure of the controlled delivery package and nothing else, because the agent referred only to the controlled delivery. He alleged that the agent had no knowledge of Rey or any illicit activity in the apartment.
During the suppression hearing, the agent testified that the mail carrier for the apartment reported that a number of "these types of packages" had been delivered to the same location in the past. The Court proceeded to find probable cause to issue a warrant for "controlled substances, records of narcotics activities, documents, paraphernalia and other evidence of drug dealing and importation." Id. at 1221.
The Rey Court further noted that other circuit courts have held that a warrant authorizing a search for drug paraphernalia, as well as, contraband is not over broad. Id. at 1220-21. However, the cases relied upon by the Rey Court are distinguishable from Rey. In each case, the affidavit supported the issuance of a warrant that included drug paraphernalia. On the other hand, the affidavit in Rey did not.
In this case, unlike the cases relied upon in Rey, the affidavit did not contain language which supported the issuance of the warrant to include heroine, cocaine or drug paraphernalia. Despite this fact, the state court judge simply rubber stamped the defendants' request, without regard to the scope of the affidavit and warrant.
United States v. Leary, 846 F.2d 592 (10th Cir. 1988) (warrant impermissibly over broad). See also United States v. Weber, 915 F.2d 1282, 1287 (9th Cir. 1990) (scope of search under anticipatory warrant limited; the court noted that there was no probable cause as to any evidence other than the delivery). In United States v. Moore, 742 F. Supp. 727, 737 (N.D. N.Y. 1990), aff'd, 968 F.2d 216 (1992) (the affidavit did not set forth any information concerning other drug activity at the premises without information in addition to the controlled delivery, there was no probable cause to believe that the premises would contain records of other drug transactions).
The Court finds however that unlike the defendant in Rey there was no evidence presented of similar packages delivered to the address. There was no evidence presented that Stanley Gordy knew of a C. Charles or that C. Charles was a fictitious person, a deceased resident, or a relative. Considering the affidavit and the information contained in the warrant, the Court finds that the defendants have not overcome the presumption of lack of probable cause.
C. Malice
Although the Court has determined that the defendants have not overcome the presumption of lack of probable cause, the Court must also consider whether they can overcome the presumption of malice. Under Louisiana law, malice may be inferred from a lack of probable cause or when the defendant acts with reckless disregard for the accused's rights. Morin v. Caire, 77 F.3d 116, 122 (5th Cir. 1996) (citing Miller, 511 So.2d at 453). Malice exists where the charge is made with knowledge that it is false or with reckless disregard for whether it was false or not. Lupin v. Ziegler, No. 87-1877, 1988 WL 86831 (E.D. La. Aug. 9, 1988)(Schwartz, J.); Aucoin v. Aetna Cas. Sur. Co, 520 So.2d 795, 798 (La.App. 3rd Cir. 1987).
The Louisiana Supreme Court has defined malice to exist "when the defendant uses the prosecution for the purpose of obtaining any private advantage, for instance, . . . as an experiment to discover who might have committed the crime." Miller, 511 So.2d at 453. It is not necessary to prove hatred, ill will, or animosity toward the plaintiff. Id. Evidence of malice may be rebutted either by showing that the mental state of the defendant had no effect on the course of the prosecution, or by undercutting the inference of malice itself. Hand v. Gary, 838 F.2d 1420, 1427 (5th Cir. 1988).
The testimony of the witnesses called by the parties establish that a package from an address in San Diego was forwarded to the plaintiffs address. The testimony further establishes that the package was addressed to C. Charles and that the plaintiff's name is Stanley Gordy. Davis testified that he confirmed that the name on the mail box of the address where the package was going to be delivered was M. Gordy.
Although Davis acquired information that suggested that someone other than the addressee lived at the address, he completed the affidavit by noting that the resident's first initial was M. and the last name was Gordy. After acquiring this information, Davis did not do any additional background check to determine if the actual resident at the address had a prior history associated with marijuana. Nor, did he attempt to confirm historical probable cause. Davis, a Lieutenant with the Jefferson Parish Sheriffs Office for 32 1/2 years and 14 years with the Airport Narcotics Interdiction Unit, recklessly disregarded the obvious suggestion that the package was misaddressed, in his zeal to secure the warrant.
As further evidence of his lack of regard for Gordy's privacy rights, Davis secured the warrant, even though there was no urgency for him to do so because the package was in the custody of the police and would not be delivered until they decided to make delivery. Finally, he submitted the wrong type of warrant to the judge for execution and the warrant clearly overreached the scope of the affidavit. Davis has not overcome the presumption of malice.
The evidenced adduced at trial also showed that prior to executing the warrant, Deputies Burns, Gerdes, and Simone secured information that a 72-year-old woman lived at the address with her adult son. Simone exhibited a conscious disregard for the plaintiffs constitutional rights, because he admittedly did not take the time to read the affidavit or warrant for the scope and terms of the search. In fact, he conceded that he only looked at the affidavit to confirm that the address in both documents were the same. Neither of the defendants demonstrated that prior to bringing further charges, probable cause was re-ascertained, and that departmental procedures were followed in procuring an indictment. See Miller, 511 So.2d at 453.
To the contrary, the evidence adduced at trial showed that relevant information was excluded from the police report, that could have assisted the prosecutor in determining whether to proceed with charges against Stanley Gordy. The testimony established that Officer Burns prepared the police report instead of Simone, because he had to leave to secure medical treatment for his shoulder which he injured during the execution of the warrant. Simone again displayed an absolute lack of interest or regard for the rights of Gordy, in so much as he admitted that he was aware that a police report was completed, yet he signed the report without regard for its accuracy.
He conceded that even though the package had not been opened when they entered the apartment, the report did not contain this relevant piece of information. Additionally, he conceded that the report did not state that during questioning, Gordy denied knowledge of the contents of the box.
The report further did not identify the UPS agent or indicate that any other officer had been summoned to the scene. The malice in preparation of the report, or lack of regard for the truth, resulted in an improper motivated prosecution without probable cause.
Although the only testimony that the unidentified officer was at the scene came from Mr. Gordy, Lt. Simone claims not to have been at the scene for very long.
To the extent, if any, that the defendants urge entitlement to qualified immunity, the Court finds that they are not so entitled. For the reasons cited herein, the Court finds that they did not act reasonably in relying on a warrant, known to contain unsupported information.
The Court notes that Detectives William Burns and Robert Gerdes were not called as witnesses at the trial. However, the evidence showed that they were full, active participants in the search, not mere bystanders. See Creamer v. Porter, 754 F.2d 1311, 1316-17 (5th Cir. 1985). Simone confirmed both Gerdes and Burns' participation during the attempted and actual execution of the search warrant. Burns furthered the prosecution by excluding relevant information in the police report. The Court finds that none of the officers who participated in the search have overcome the presumption of malice. Melear v. Spears, 862 F.2d 1177, 1186 (5th Cir. 1989). The defendants' overzealousness results in a finding of liability.
D. Individual Liability
To impose individual liability on public officers, the plaintiff must prove that the defendants violated not only a constitutional right, but a "clearly established" constitutional right; otherwise the defendants are protected by qualified immunity. E.g., Lassiter v. Alabama A M University, 28 F.3d 1146 (11th Cir. 1994) (en banc); see also Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
To overcome the qualified immunity defense, the contours of the right allegedly violated must be sufficiently clear that a reasonable official would understand that what he was doing violates that right. E.g., Anderson v. Creighton, 483 U.S. 635, 640 (1987). That is to say, "[u]nless a government agent's act is so obviously wrong, in the light of preexisting law, that only a plainly incompetent officer or one who was knowingly violating the law would have done such a thing, the government actor has immunity from suit." Lassiter, 28 F.3d at 1149. "If case law, in factual terms, has not staked out a bright line, qualified immunity almost always protects the defendant." Post v. City of Ft. Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 1993).
The term"clearly established" does not necessarily refer to "commanding precedent" that is "factually on all-fours with the case at bar, "or that holds the "very action in question" unlawful. Jefferson v. Ysleta Independent School Dist., 817 F.2d 303, 305 (5th Cir. 1987) (footnote omitted); Anderson, 483 U.S. at 640. Rather, a constitutional right is clearly established if "in the light of pre-existing law the unlawfulness [is] apparent." Anderson, 483 U.S. at 640. Put another way, officials must observe "general, well-developed legal principles." Jefferson, 817 F.2d at 305.
It is axiomatic that citizens have the right under the Fourth Amendment to be free from the unreasonable search and seizures by government officials and that a person has an expectation of privacy in their home. U.S. CONST. amend. IV; see also Wagner v. Bonner, 621 F.2d 675, 682 (5th Cir. 1980). The search in this case occurred in Gordy's home. Any reasonably competent officer would have read the affidavit and the warrant and concluded that the warrant lacked probable cause. It is this Court's opinion that the plaintiff stated a claim for the violation of a constitutional right, and the detectives are not protected from individual liability by qualified immunity, because the constitutional right claimed to have been violated was clearly established at the time of their alleged conduct. Jefferson, 817 F.2d at 305.
E. Damages
Under Louisiana law, damages are presumed when all other elements of a malicious prosecution claim are satisfied. Hibernia National Bank of New Orleans v. Bolleter, 390 So.2d 842, 844 (La. 1980); Guillot v. Dockens, 539 So.2d 1301, 1304 (La.App. 3d Cir.), writ denied, 543 So.2d 19 (La. 1989). In the instant case, Mr. Gordy testified that as a result of the search and prosecution, he incurred expenses for bail, attorney's fees, and investigation, and that he suffered emotional distress, property damage, and physical trauma. He also prayed for punitive damages and attorney's fees.
1. Compensatory Damages
In cases awarding compensatory damages for malicious prosecution, the courts have considered such factors as embarrassment, negative publicity, the number of court appearances, criminal defense expenses, employment status at the time of arrest, and the length of any detention. Miller v. East Baton Rouge Parish Sheriff's Office, 522 So.2d 578, 579 (La.App. 1st Cir.), writ denied, 524 So.2d 520 (La. 1988).
The evidence produced at trial shows that Mr. Gordy was interrogated for approximately two hours, arrested, subjected to being released on bond and having charges lodged against him for felony possession of marijuana. The charges remained pending for over six months before being dismissed on the day of trial.
Mr. Gordy testified that he paid his lawyer over $2,000.00 to represent him as a result of the charge and that his mother and sister posted bond to get him out of jail pending trial. He also testified that he was nervous as a result of the charges and fearful that he was going to get 40 years in prison. After the charges were dismissed, Gordy secured an expungement of the proceeding.
Although Gordy claims physical injury, several months went by before he secured medical treatment. He testified, however, that after the incident he began experiencing periodic headaches. Considering these factors and the evidenced adduced at trial, the Court finds that Mr. Gordy is entitled to a compensatory damage award of $12,000.00.
2. Punitive Damages
Under Louisiana law, a malicious prosecution claim is limited to compensatory damages. Greyhound Corp. v. Evans, No. 90-1374, 1993 WL 62414 at 5 (E.D. La. Mar. 4, 1993) (citing Jones v. Solieau, 448 So.2d 1268, 1273 (La. 1984)); Vasseur v. Eunice Superette, Inc., 386 So.2d 692, 697 (La.App. 3rd Cir.), writ denied, 393 So.2d 747 (La. 1980). However, the Supreme Court has held that punitive damages are recoverable in a Section 1983 action. Smith v. Wade, 461 U.S. 30, 35 (1983). Punitive damages may be awarded "in an action under Section 1983 when the defendant's conduct . . . involves callous or reckless indifference to the rights of others." See Melear v. Spears, 862 F.2d 1177, 1187 (5th Cir. 1989) (citing Smith v. Wade, 461 U.S. 30, 56 (1983)); see also Hinshaw v. Doffer, 785 F.2d 1260, 1270 (5th Cir. 1986). Punitive damage awards serve the dual goals of punishing the defendant for his or her conduct and deterring others from engaging in similar behavior. Memphis Community School District v. Stachura, 477 U.S. 299 (1986).
The factors to be considered in rendering an award for punitive damages are (1) the degree of reprehensibility; (2) the ratio of punitive damages to compensatory damages; and (3) the difference between punitive damages and civil penalties authorized or imposed in comparable cases. See Lee v. Edwards, 101 F.3d 805 (2d Cir. 1996) (punitive damage award reduced from $200,000.00 to $125,000.00 where only $1.00 was awarded for compensatory damages); Hart v. Walker, 720 F.2d 1436 (5th Cir. 1983) ($ 7,500.00 in punitive damages for intentional wrongful acts); Boyd v. Carroll, 624 F.2d 730 (5th Cir. 1980)($ 8,750.00 punitive damages for false arrest).
In an effort to deter this continued behavior and to discourage others from the same, the Court awards $8,000.00 in punitive damages. This amount is derived from the Court's evaluation of the reprehensible nature of the defendants' violations, including its assessment of the degree of malice apparent from the disregard for the rights of private citizens who unwittingly fall victim to their "routine" police work. See BMW of North America v. Gore, 517 U.S. 559, 575-78 (1996); Lee, 101 F.3d at 809-812.
3. Attorney's Fees and Costs
The plaintiff also contends that he is entitled to recover his attorney's fees under Title 42 U.S.C. § 1988, which authorizes the Court to award reasonable attorney's fees to a "prevailing party" in civil rights litigation. See 42 U.S.C. 1988(b).
Having granted relief on his constitutional claim, the Court finds that Mr. Gordy is a "prevailing party," entitled to an award of reasonable attorney's fees and costs under Title 42 U.S.C. § 1988. The plaintiff is directed to file a Motion to Assess Fees and Costs, in accordance with the Uniform Local Rules of this Court.
F. Sheriff Harry Lee
The plaintiff also named as a defendant, Sheriff Harry Lee in his individual capacity. Gordy alleges that Sheriff Lee became personally involved in the incidents complained of when he failed to discipline the defendants, and thereby "ratified" the "established policy" of "not actually investigating nor punishing officers of the narcotics squad," when their actions are not supported by independent evidence. In order to establish such a claim, the plaintiff must present evidence from which the Court could conclude that the defendants were acting pursuant to a policy implemented by the Sheriff or that the Sheriff was personally involved in the activities of which he complains. Wanger v. Bonner, 621 F.2d 675 (5th Cir. 1980).
In the instant case, Gordy presented no evidence that Sheriff Lee had a policy that resulted in the manner in which the warrant was secured or that he knew about or was in any way involved in obtaining the warrant or any of the subsequent events. Nor, did Gordy present any evidence that he had filed a complaint with the Jefferson Parish Sheriffs Office, requesting that disciplinary action be taken against any of the defendants. The Court therefore finds that Gordy failed to establish any personal knowledge or involvement on the part of Sheriff Lee, which would subject him to individual liability.
III. Conclusion IT IS THEREFORE ORDERED that judgment be entered in favor of the plaintiff, Stanley Gordy, and against the defendants Gerald Simone, William Burns, and Robert Gerdes, in the amount of $12,000.00 compensatory damages, jointly and severally and $8,000.00 in punitive damages, plus reasonable attorney's fees and costs.
IT IS FURTHER ORDERED that the plaintiffs claims against defendant Sheriff Harry Lee be DISMISSED WITH PREJUDICE.