Brown v. Dietz , 12 F. App'x 848 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 12 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
WILLIAM R. BROWN,
Plaintiff-Appellant,
v. No. 00-3187
(D.C. No. 99-CV-2476-JWL)
DAN DIETZ, City Police Chief; (D. Kan.)
TOM LAITER, Animal Control
Officer; DENNIS MORGAN, Deputy
Police Officer; TERRY SOLANDER,
City Prosecutor; GLORIA TRUMPP,
Municipal Judge; CITY OF
GARNETT, KANSAS,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before HENRY , BRISCOE , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. 1
Plaintiff appellant William R. Brown appeals the judgment of the district
court awarding summary judgment to defendants on his various civil rights
claims. We affirm in part and reverse and remand in part.
Under Rule 1001 of the Kansas Court Rules, only the news media
and educational television stations may record public proceedings before
the municipal courts of that state. See Rules of Sup. Ct. of Kan. R. 1001.
In November 1997, a police officer testifying at a hearing in the municipal court
in Garnett, Kansas, observed a hand-held electronic tape recorder in plaintiff’s
shirt pocket. The officer reported the presence of the tape recorder to the city
attorney, defendant Solander.
At the conclusion of the hearing, defendant Dietz, who was then the chief
of police in Garnett, and defendants Laiter and Morgan followed plaintiff out of
the courthouse and saw him get into a truck parked nearby. Upon being asked by
Officer Dietz to exit the vehicle, plaintiff did so and further complied with
Officer Dietz’s request that he stand “spread eagle” so that a pat-down search
1
Neither appellant’s brief nor the brief of the appellees in this case included
a copy of the memorandum and order of the district court. We remind the
litigants of their obligations under 10th Cir. R. 28.2 to attach such materials to
their briefs.
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could be conducted. After the discovery of the tape recorder in plaintiff’s front
shirt pocket, the pat-down ceased, and plaintiff was asked to return to the
courtroom where the earlier proceeding had been held.
Upon return to the courtroom, Officer Dietz turned over the tape recorder
to the presiding municipal judge. When plaintiff refused to identify himself,
Officer Dietz removed plaintiff’s driver’s license from his back pocket and gave
it to defendant Solander who looked at it, made a brief note, and immediately
returned it to plaintiff. Plaintiff was repeatedly assured that he was not under
arrest. After the judge and Officer Dietz listened to a few minutes of the
indistinguishable tape recording, the recorder was returned to plaintiff. The judge
kept the cassette tape but informed plaintiff that he could obtain a new cassette
tape from the clerk of the court on his way out. Approximately ten to twelve
minutes elapsed from the time plaintiff was stopped by Officer Dietz until he left
the courtroom after being questioned.
Plaintiff then brought this civil rights action against Officers Dietz, Laiter
and Morgan, the city prosecutor, the municipal judge, and the City of Garnett
asserting claims under 42 U.S.C. §§ 1983, 1985, 1986, and 1988 and alleging
that this incident violated his rights under the Fourth, Fifth, Sixth, Thirteenth,
and Fourteenth Amendments to the Constitution.
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In response to plaintiff’s complaint, defendants argued that none of
plaintiff’s constitutional rights had been violated and, alternatively, that if
they were, those rights were not clearly established. These contentions form
the qualified immunity defense which “protects public officials from
individual liability in a § 1983 action unless the officials violated clearly
established . . . constitutional rights of which a reasonable person would have
known.” Mick v. Brewer , 76 F.3d 1127, 1134 (10th Cir. 1996) (quotations
omitted). 2
In analyzing plaintiff’s claims, the district court correctly chose to
determine whether plaintiff had alleged the deprivation of a constitutional right in
the first instance. See County of Sacramento v. Lewis , 523 U.S. 833, 841 n.5
(1998). After concluding that there had been no constitutional violation sufficient
to sustain any of plaintiff’s claims, the district court granted summary judgment
to defendants. In rejecting plaintiff’s Fourth Amendment claim, the district court
concluded that, because defendant Dietz had reasonable suspicion to believe that
plaintiff was engaged in wrongdoing and because the detention lasted no longer
than was necessary to effectuate the purpose of the stop, the investigative
2
“[T]he affirmative defense of qualified immunity [] protects ‘all but the
plainly incompetent or those who knowingly violate the law.’” Gross v. Pirtle ,
245 F.3d 1151, 1155 (10th Cir. 2001) (quoting Malley v. Briggs , 475 U.S. 335,
341 (1986)). Once a defendant has advanced a qualified immunity defense, the
burden shifts to the plaintiff to establish (1) that the defendant’s action violated
a constitutional or statutory right and (2) that this right was clearly established at
the time of the defendant’s actions. See id. at 1155-56.
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detention was legal as a Terry stop. See Terry v. Ohio , 392 U.S. 1, 22-25 (1968).
However, while the stop in this case may have been lawful under Terry , the
subsequent search was not. See, e.g., United States v. Melendez-Garcia , 28 F.3d
1046, 1051 (10th Cir. 1994) (holding initial stop justified under Terry, but
subsequent seizure required probable cause).
In Michigan v. Long , 463 U.S. 1032, 1052 n.16 (1983), the Court explained
that a search incident to a Terry stop is “protective in nature and limited to
weapons.” Further, “[a] Terry search, unlike a search without a warrant incident
to a lawful arrest, is not justified by any need to prevent the disappearance or
destruction of evidence of crime. . . . The sole justification of the search . . . is
the protection of police officers and others nearby. . . .” Id. at 1049 n.14
(quotation omitted). See also United States v. Gonzalez , 763 F.2d 1127, 1130-31
(10th Cir. 1985) (noting that, unless a person consents to a search after a Terry
stop, the officer must choose between arresting the person in order to conduct
an involuntary search or letting him go).
Defendants do not suggest that the search in this case was mandated by
concerns for officer safety or that plaintiff consented to the search. Instead, they
argue that probable cause supported the stop and eventual search. We are not
persuaded.
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It is true that, where probable cause to arrest exists and where certain
exigent circumstances are present, a “very limited” warrantless search can pass
constitutional muster. See Cupp v. Murphy , 412 U.S. 291, 296 (1973); United
States v. Rizzo , 583 F.2d 907, 910 (7th Cir. 1978). While the search here was
limited to a pat-down and was stopped immediately when defendant Dietz found
the tape recorder in plaintiff’s shirt pocket, and while the risk may have existed
that the tape would be erased or secreted during the delay while a warrant
was obtained, we conclude that probable cause did not exist to justify the search
in the first instance.
Probable cause exists where the facts and circumstances within
[the officers’] knowledge and of which they had reasonably
trustworthy information [are] sufficient in themselves to warrant a
man of reasonable caution in the belief that an offense has been or is
being committed.
Brinegar v. United States , 338 U.S. 160, 175-76 (1949) (quotation omitted).
An officer does not need enough evidence to justify conviction, but he or she
must have more than a mere suspicion of wrongdoing. See id. at 175; see also
United States v. Matthews , 615 F.2d 1279, 1284 (10th Cir. 1980).
In reciting the facts of this case, the district court stated that “[d]uring the
hearing, Officer Tate witnessed Mr. Brown ‘playing with’ a handheld electronic
tape-recording device, an action Officer Tate interpreted as Mr. Brown’s attempt
to record the court proceedings.” Memorandum and Order at 2. If this were an
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accurate characterization of the record, we would then be required to determine
whether such information was sufficient to provide probable cause to arrest. The
record, however, does not support the district court’s statement of the facts.
The only evidence in the record regarding Officer Tate’s knowledge is his
sworn affidavit in which he states simply that “[w]hen I was leaving the witness
stand, I saw a man in the front row with a tape recorder in his front shirt pocket.
I reported the presence of the tape recorder to City Attorney Terry Solander.”
R. Vol. I, tab A. The evidence that plaintiff had the tape recorder out of his
pocket and was “playing with it” comes from plaintiff’s own deposition taken
well after the incident at issue here. See id. Attach. to Doc. 17 at 15-16. There
is no evidence that Officer Tate ever saw the tape recorder out of plaintiff’s
pocket or that he saw plaintiff manipulating it in any way.
Based on this evidence, we conclude that the presence of a tape recorder
in plaintiff’s pocket did not warrant a “man of reasonable caution in the belief
that an offense has been or is being committed.” See Brinegar , 338 U.S. at
175-76 (quotation omitted). The fact that plaintiff had a tape recorder in his
pocket supports only the mere suspicion that he had been recording court
proceedings, a threshold insufficient to establish probable cause. See id. at 175.
We hold, therefore, that because defendants did not have probable cause to arrest
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plaintiff under the “exigent circumstances” exception, the subsequent warrantless
search of his person violated plaintiff’s rights under the Fourth Amendment.
As mentioned above, the district court concluded that no constitutional
violation had occurred in this case, making it unnecessary for that court to fully
analyze defendants’ qualified immunity defense. Because we have concluded
that a constitutional violation did occur, we must now turn to the second prong of
the qualified immunity defense, i.e., that, even if plaintiff’s constitutional rights
were violated, such rights were not clearly established at the time of the violation.
If the rights violated were not clearly established, defendants will still be afforded
qualified immunity from this lawsuit. Whether a particular federal right was
clearly established is a question of law, Mick , 76 F.3d at 1135, which we are as
well-qualified to determine as the district court.
“[In order f]or the law to be clearly established, there must be a Supreme
Court or Tenth Circuit decision on point, or the clearly established weight of
authority from other courts must be as plaintiff maintains.” Foote v. Spiegel ,
118 F.3d 1416, 1424 (10th Cir. 1997). Our review of the pertinent precedent
makes it clear that the constitutional right violated by defendants in this case
was clearly established at the time of their unlawful conduct.
As discussed above, as early as 1983 in Michigan v. Long , 463 U.S. 1032,
1052 n.16 (1983), the Supreme Court explained that a search incident to a Terry
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stop is “protective in nature and limited to weapons.” Further, “[a] Terry
search, unlike a search without a warrant incident to a lawful arrest, is not
justified by any need to prevent the disappearance or destruction of evidence of
crime. . . . The sole justification of the search . . . is the protection of police
officers and others nearby. . . .” Id. at 1050 n.14 (quotation omitted). See also
Gonzalez , 763 F.2d at 1130-31 (noting that, unless a person consents to a search
after a Terry stop, the officer has to choose between arresting the person in order
to conduct an involuntary search or letting him go).
Thus, the law was clearly established well before 1997 that the reasonable
suspicion to stop someone under Terry did not then justify a search for anything
other than a weapon. The contours of probable cause were also clearly
established by 1997, see Brinegar , 338 U.S. at 175-76. A comparison of the
Brinegar standard, as set out above, with the facts as known by defendants at the
time of this incident belies defendants’ contention that probable cause existed to
arrest plaintiff. At the time of this incident, therefore, the law was clearly
established that the search could not be justified by the existence of probable
cause and the presence of exigent circumstances.
Because plaintiff has successfully established that defendants’ actions
violated a clearly established constitutional right, qualified immunity will not
shield defendants from fully defending plaintiff’s Fourth Amendment claim.
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We therefore reverse that portion of the district court’s judgment granting
summary judgment to defendants Dietz, Laiter, Morgan, and Solander on
plaintiff’s Fourth Amendment claim. Because plaintiff’s Fourth Amendment
claim filed pursuant to 42 U.S.C. § 1983 is reinstated, we vacate the district
court’s grant of summary judgment on plaintiff’s claim for attorney’s fees under
42 U.S.C. § 1988.
One remaining matter merits brief discussion. In his brief to this court
regarding his Fifth Amendment claims, plaintiff argues that the judge, defendant
Trumpp, had no jurisdiction to do what she did. This contention does not raise
a claim under the Fifth Amendment. Further, with regard to any claim that
plaintiff had the right to remain silent, we have held that such a right is
“narrowly limited . . . to pre-arrest custodial interrogations where incriminating
questions are asked.” Pallottino v. City of Rio Rancho , 31 F.3d 1023, 1026
(10th Cir. 1994). This was not a pre-arrest situation, and a request for name and
address is “‘an essentially neutral act’” unaccompanied by the threat of criminal
liability or incrimination. Id. (quoting California v. Byers , 402 U.S. 424, 432
(1971)). Plaintiff relies on Specht v. Jensen , 832 F.2d 1516 (10th Cir. 1987),
to bolster his Fifth Amendment claim; that case has no bearing on the Fifth
Amendment. The district court correctly relied on Porter v. United States ,
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473 F.2d 1329 (5th Cir. 1973), as authority to dismiss plaintiff’s Fifth
Amendment claims.
With regard to the remainder of plaintiff’s claims, we affirm for
substantially the reasons stated by the district court.
The judgment of the United States District Court for the District of Kansas
is AFFIRMED in part and REVERSED in part, and this case is REMANDED
to the district court for further proceedings in accordance with this order and
judgment.
Entered for the Court
Robert H. Henry
Circuit Judge
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