State of NC v. McCurry ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
STATE OF NORTH CAROLINA, on
relation of DONALD REAVES,
Plaintiff-Appellant,
v.
R. J. MCCURRY, Individually and in
his official capacity as Deputy
Sheriff; PEERLESS INSURANCE
COMPANY SURETY, No. 98-2038
Defendants-Appellees,
and
WALTER A. BURCH, Sheriff,
Individually and in his official
capacity as Sheriff of Guilford
County; GUILFORD COUNTY,
Defendants.
Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Paul Trevor Sharp, Magistrate Judge.
(CA-96-851-2)
Submitted: February 16, 1999
Decided: March 22, 1999
Before WILKINS, LUTTIG, and MICHAEL, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Romallus O. Murphy, Sr., Greensboro, North Carolina, for Appellant.
William L. Hill, BURTON & SUE, L.L.P., Greensboro, North Caro-
lina, for Appellees.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
On June 4, 1992, the Defendant, Officer R. J. McCurry and other
North Carolina police officers executed a valid search warrant at the
home of Carole Moore in Greensboro, North Carolina. Based upon
information discovered at this scene, McCurry subsequently arrested
the Plaintiff, Donald Reaves for various drug offenses under North
Carolina law. Following his arrest, McCurry secured a Magistrate
Judge's order authorizing detention of Reaves on the ground that
probable cause existed to believe that he violated North Carolina drug
law. McCurry also completed a "Report of an Arrest and or/seizure
of non tax pad controlled substances" form resulting in an assessment
of controlled substance tax against Reaves' property. Eventually, the
criminal charges against Reaves were dismissed. 1 When Reaves failed
to appear to contest the assessment, however, it became final.
In response to these events, Reaves filed a 42 U.S.C.A. § 1983(West Supp. 1998) complaint against McCurry, the Sheriff, Peerless
Insurance Company, and Guilford County. The Defendants success-
fully moved for summary judgment. Pursuant to Reaves's motion, the
Sheriff and Guilford County have been dismissed as parties to this
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1 The state reasons for dismissal were: (1) Carol Moore refused to tes-
tify against Reaves; and (2) the narcotics were not in the continuous pos-
session of Reaves.
2
appeal. In addition, Reaves' brief does not contest the grant of sum-
mary judgment as to Peerless Insurance Company, and thus the
claims involving that defendant are waived. As to Defendant
McCurry, Reaves alleges only that McCurry arrested him without
probable cause and that the magistrate judge therefore erred in grant-
ing McCurry's motion for summary judgment on the basis of quali-
fied immunity.2 Because he does not address McCurry's actions in
regard to the tax assessment, that claim is also waived.
This Court reviews a grant of summary judgment de novo. See
Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162 (4th Cir.
1988). Summary judgment is properly granted when there are no gen-
uine issues of material fact and when the record taken as a whole
could not lead a rational trier of fact to find for the non-moving party.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All reason-
able inferences are to be drawn in favor of the non-moving party. See
Cole v. Cole, 633 F.2d 1083, 1092 (4th Cir. 1980).
To succeed on an action for false arrest, Reaves must demonstrate
that his arrest was not supported by probable cause. See Street v.
Surdyka, 492 F.2d 368, 372-73 (4th Cir. 1974). McCurry, however,
has raised the defense of qualified immunity, making the relevant
question: whether a reasonable officer would have believed that the
arrest was supported by probable cause. See Porterfield v. Lott, 156
F.3d 563, 567 (4th Cir. 1998). Review of the materials submitted by
the parties leads us to conclude that a reasonable officer possessing
the information McCurry possessed would have believed probable
cause to arrest Reaves existed. Specifically, we note the following.
McCurry received two Crime Stopper tips that Reaves was
involved in the sale of cocaine, and McCurry knew that Reaves had
previously been charged with a narcotics violation. In addition, a con-
fidential informant told McCurry that Moore and Bonite Loudermilk
were selling cocaine supplied by Moore's live-in boyfriend. McCurry
himself also made two undercover buys of cocaine from Moore and
Loudermilk during which Loudermilk stated that the cocaine was sup-
plied by Moore's boyfriend. Thereafter, another informant told
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2 The parties consented to the jurisdiction of the magistrate judge under
28 U.S.C. § 636 (1994).
3
McCurry that the informant had purchased cocaine from Moore and
had seen a large quantity of the drug at 1715 Hannaford Road, a resi-
dence allegedly shared by Moore and Reaves.
McCurry then conducted surveillance of the residence during
which times he observed two vehicles owned by Reaves parked at the
residence for extended periods of time. Subsequent to this surveil-
lance, McCurry overheard a conversation between Moore and another
individual in which Moore stated that she had drugs for sale at the
Hannaford Road residence. Based on this information, McCurry
secured a search warrant for the residence. The ensuing search
revealed 150 grams of cocaine, 228 grams of marijuana, over $3,000
in currency, and multiple firearms. Officers also found sales receipts
from a business owned by Reaves, receipts from a New York jewelry
shop in Reaves' name, a receipt for the preparation of tax forms for
Reaves, two prescription pill bottles with Reaves' name, various
items of men's clothing, and a rack of men's shoes.
We find that a reasonable officer in possession of these facts would
believe the arrest of Reaves to be supported by probable cause, and
hence we agree with the magistrate judge's determination that
McCurry's actions are shielded by qualified immunity. In reaching
this determination, we have considered Reaves' proffered evidence--
including affidavits from both Moore and her mother stating that they
told McCurry that the drugs belonged to Moore and that Reaves did
not reside at the Hannaford Road residence,3 and the fact that a male
friend of Moore's, Esbie Davis, was present at the residence when it
was searched--but nonetheless conclude that a reasonable officer in
McCurry's position would believe the arrest to be supported by prob-
able cause. Accordingly, we affirm the magistrate judge's grant of
summary judgment in favor of McCurry on the basis of qualified
immunity. We dispense with oral argument because the facts and
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3 According to McCurry, both Moore and her mother stated that the
drugs belonged to Reaves, who resided at the Hannaford Road address.
Reaves, however, has presented affidavits from both parties in which
they state that they told McCurry that Reaves did not live there and that
the drugs belonged to Moore. The rules of summary judgment compel us
to accept Reaves' version of events in regard to this conflict. See Fed. R.
Civ. P. 56.
4
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
5