Jermaine Sutton v. Metropolitan Government of Nashville , 700 F.3d 865 ( 2012 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 12a0391p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
-
JERMAINE SUTTON,
-
Plaintiff-Appellee,
-
-
No. 11-6449
v.
,
>
METROPOLITAN GOVERNMENT OF NASHVILLE -
-
Defendants, --
AND DAVIDSON COUNTY, et al.
-
-
-
RICHARD MARTIN, in his individual and
Defendant-Appellant. -
official capacities as a Metro Police Officer,
N
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 3:10-cv-400—Kevin H. Sharp, District Judge.
Decided and Filed: November 28, 2012
Before: GILMAN, GIBBONS, and ROGERS, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Keli J. Oliver, Derrick C. Smith, DEPARTMENT OF LAW OF THE
METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY,
Nashville, Tennessee, for Appellant. Andrew N. Egan, Hermitage, Tennessee, Mary
Leech, Nashville, Tennessee, for Appellee.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Jermaine Sutton was detained and
arrested on a misdemeanor theft charge after Officer Richard Martin was called to a
Kroger grocery store following an alleged shoplifting. Officer Martin took possession
of a cell phone allegedly dropped by the perpetrator. Based on a conversation with a
1
No. 11-6449 Sutton v. Metro. Gov’t of Nashville et al. Page 2
person listed in the phone’s “contacts” list, he went to Summit Medical Center where
Sutton worked. The confrontation between the two resulted in Sutton’s arrest for
shoplifting.
A jury acquitted Sutton at trial. Sutton subsequently sued Officer Martin and the
Nashville and Davidson County Metropolitan Government for a host of federal
constitutional violations and state common law and statutory violations. Officer Martin
filed a motion to dismiss the complaint for failure to state a claim. The district court
dismissed Sutton’s claims based on the Fifth and Fourteenth Amendments but denied the
motion as to Sutton’s Fourth Amendment claim regarding an unreasonable seizure,
finding that he had adequately stated a cause of action and that Officer Martin was not
entitled to qualified immunity. Officer Martin has timely filed an interlocutory appeal.
This case turns on whether Officer Martin had reasonable suspicion to detain
Sutton or probable cause to arrest him. For the reasons set forth below, we AFFIRM
the district court’s order denying Officer Martin’s motion to dismiss, but we do so by
considerably narrowing the scope of Sutton’s Fourth Amendment claim.
I. BACKGROUND
A. Factual background
All of the following facts are based solely on the allegations in Sutton’s
complaint. No discovery has yet taken place and no affidavits or other documents have
been filed.
On April 21, 2009, Officer Martin responded to a reported shoplifting at a Kroger
grocery store. He ended up in possession of a cell phone that was found in the pocket
of a jacket dropped by the alleged perpetrator. Officer Martin then called a number
saved in the cell phone’s contacts list. The person who answered the call told him that
she knew a person named Jermaine Sutton who worked at “Summit Hospital.” What
else she may have told Officer Martin to connect Sutton to the shoplifting incident is not
set forth in the complaint. In any event, Officer Martin left the Kroger store and went
to Summit Medical Center to find Sutton.
No. 11-6449 Sutton v. Metro. Gov’t of Nashville et al. Page 3
Sutton was working in the kitchen at Summit Medical Center when he was told
by a co-worker that someone was in the cafeteria wanting to see him. He went to the
cafeteria, where he was quickly surrounded by Officer Martin and three other police
officers. Officer Martin pulled out a cell phone from a bag and asked Sutton if it was his
phone. Sutton said that it was not. When Officer Martin then asked Sutton where his
cell phone was, Sutton showed Officer Martin a different cell phone taken from Sutton’s
own pocket, which Officer Martin promptly confiscated over Sutton’s protest. This
prompted Officer Martin to say that Sutton “looked like the kind of man who would have
a couple nurses on the side and . . . would need two cell phones to talk to them so that
[Sutton’s] wife would not find out about them.”
After Officer Martin confiscated the cell phone that Sutton had produced from
his pocket, Sutton told Officer Martin that he needed the phone to call his wife, and he
asked if he could “clock out” from his job. Officer Martin responded that Sutton “could
not go anywhere or do anything.” He then explained that someone had stolen meat from
a Kroger store, that the police had “found the telephone in [Sutton’s] jacket after [he]
took off running,” and that if Sutton told the truth, Officer Martin could “just write
[Sutton] a citation.” Sutton denied stealing anything.
Despite Sutton’s denial of having any connection to the cell phone or to the
alleged shoplifting, Officer Martin took Sutton tightly by the arm and, along with the
other officers, escorted him out of the hospital. A Kroger security guard from the
grocery store in question, John Szcerbiak, who was waiting nearby in his car, identified
Sutton as the perpetrator. Officer Martin then told Sutton that he was under arrest,
handcuffed him, gave him the Miranda warnings, put him in the back seat of a police
car, and drove to the scene of the theft. Sutton remained in the car for 45 minutes while
Officer Martin went inside the Kroger store to view a security video of the shoplifting.
Officer Martin returned to the car, said that he was unsure whether Sutton was the person
depicted in the video, and went back to look at the video again. Despite his own
uncertainty, Officer Martin took Sutton “downtown” at Szcerbiak’s urging, where the
No. 11-6449 Sutton v. Metro. Gov’t of Nashville et al. Page 4
latter swore out a warrant charging Sutton with misdemeanor theft. Sutton was held in
jail for several hours until his wife posted bond.
B. Procedural background
After Sutton was tried and acquitted in June 2009, he pursued federal and state
claims against Officer Martin, the Metropolitan Government, Szcerbiak, and Kroger.
The district court sustained Officer Martin’s motion to dismiss most of the claims but
denied the motion as to Sutton’s claim of an unreasonable seizure under the Fourth
Amendment.
Officer Martin argued that reasonable suspicion supported his initial detention
of Sutton at the hospital and that Szcerbiak’s identification of Sutton provided probable
cause for the latter’s subsequent arrest. He thus contended that Sutton failed to state a
claim under the standard articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544(2007). And even if Sutton had stated a claim, Officer Martin argued that he is entitled
to qualified immunity.
The district court rejected both arguments. Because the first step in a qualified-
immunity analysis is to determine whether the officer’s alleged conduct violated a
constitutional right, the court analyzed Officer Martin’s Twombly argument within the
qualified-immunity framework. It found that the facts did not support Officer Martin’s
position that he had reasonable suspicion to detain Sutton because the informant (the
person in the perpetrator’s cell-phone contacts list) was not necessarily “reliable both in
[her] assertion of illegality and in [her] tendency to identify a determinate person.” The
court also noted that it could not tell from the record “whether the degree of intrusion
was warranted” or how long the hospital encounter lasted.
A similar “lack of facts” defeated Officer Martin’s argument on probable cause.
The court held that Szcerbiak’s identification “[did] not necessarily establish probable
cause” because the court could not yet determine whether there might have been an
apparent reason for Officer Martin to disbelieve Szcerbiak.
No. 11-6449 Sutton v. Metro. Gov’t of Nashville et al. Page 5
Having found that Sutton adequately stated a Fourth Amendment claim, the
district court turned to the second step of the qualified-immunity analysis and concluded
that detaining a person for an investigatory stop without reasonable suspicion and
arresting a person without probable cause violated clearly established Fourth
Amendment law. The court therefore denied Officer Martin’s motion on the Fourth
Amendment claim. This interlocutory appeal followed.
II. ANALYSIS
A. Standard of review
A district court’s denial of a motion to dismiss that raises a qualified-immunity
defense is reviewed de novo. Hardy v. Jefferson Cmty. Coll., 260 F.3d 671, 677 (6th
Cir. 2001). But the rejection of a qualified-immunity claim is reviewable on
interlocutory appeal only to the extent that it raises a question of law and does not
concern a factual dispute. Floyd v. City of Detroit, 518 F.3d 398, 404 (6th Cir. 2008);
see also Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (holding that a district court’s
denial of qualified immunity is a “final decision” under 28 U.S.C. § 1291 “to the extent
that it turns on an issue of law”). We will therefore limit our review to the purely legal
question of whether the facts as alleged by Sutton would allow a jury to find a violation
of a clearly established constitutional right. See Sample v. Bailey, 409 F.3d 689, 695-96
(6th Cir. 2005).
To survive a motion to dismiss for failure to state a claim, a complaint must
allege sufficient facts that, accepted as true, “state a claim to relief that is plausible on
its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The plaintiff at this stage of the case is entitled to have the complaint construed
in the light most favorable to him. Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir.
2008).
No. 11-6449 Sutton v. Metro. Gov’t of Nashville et al. Page 6
When a government official is sued in a § 1983 action, the official may raise the
defense of qualified immunity. Once raised, the burden is on the plaintiff to demonstrate
that the qualified-immunity defense is unwarranted. Roth v. Guzman, 650 F.3d 603, 609
(6th Cir. 2011). The facts as alleged must show that the defendant violated a
constitutional right and that the right was clearly established, Saucier v. Katz, 533 U.S.
194, 201 (2001), but the analysis need not proceed in that order. Pearson v. Callahan,
555 U.S. 223, 236 (2009) (allowing courts the discretion to decide which of the two
steps in the qualified-immunity analysis should be addressed first). A right is clearly
established when “it would be clear to a reasonable officer that his conduct was unlawful
in the situation he confronted.” Saucier, 533 U.S. at 202.
B. Sutton has stated a § 1983 claim for violation of his Fourth Amendment
rights
The Fourth Amendment guarantees that “government officials may not subject
citizens to searches or seizures without proper authorization.” Brooks v. Rothe, 577 F.3d
701, 706 (6th Cir. 2009). A police officer having probable cause to believe that a
criminal offense has been committed may make a warrantless arrest without offending
the Fourth Amendment. Id. (citing Devenpeck v. Alford, 543 U.S. 146, 152 (2004)). On
the other hand, a short investigatory detention, rather than an arrest, requires only
“reasonable suspicion of criminal activity.” United States v. Lopez-Medina, 461 F.3d
724, 739 (6th Cir. 2006) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). We will first
address Sutton’s argument that he was detained without reasonable suspicion and then
turn to the claim that he was arrested without probable cause.
1. The lack of reasonable suspicion to detain Sutton beyond the
cell-phone inquiry
Officer Martin acknowledges that his initial encounter with Sutton at Summit
Medical Center was an investigatory detention. To justify this detention, Officer Martin
“must be able to point to specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant [the] intrusion.” See Terry, 392
U.S. at 21. The complaint alleges that Officer Martin knew the following facts at the
No. 11-6449 Sutton v. Metro. Gov’t of Nashville et al. Page 7
time he initiated the detention: (1) a theft was reported at a Kroger grocery store, (2) an
abandoned cell phone was found at the store, (3) Officer Martin called a number in the
cell phone’s contacts list, and (4) the person Officer Martin called said that she knew a
person named Jermaine Sutton who worked at Summit Hospital, but did not say that the
cell phone belonged to Sutton.
Sutton argues, consistent with the district court’s opinion, that the information
provided by the person Officer Martin called on the cell phone was insufficient to
provide reasonable suspicion for detaining Sutton because the information was not
reliable. Both he and the district court cite Florida v. J.L., 529 U.S. 266 (2000), for the
proposition that the “tip” Officer Martin received was not “reliable in its assertion of
illegality.” The informant made no connection between Sutton and the theft, Sutton
argues, and provided no predictive information by which Officer Martin could assess her
knowledge or credibility. Sutton concludes that because the informant’s tip was
unreliable, Officer Martin lacked reasonable suspicion to detain Sutton for questioning.
The reliance by Sutton and the district court on J.L. is misplaced. Unlike J.L.,
the present case does not involve an anonymous informant contacting the police to
report illegal activity. See J.L., 529 U.S. at 268 (“[A]n anonymous caller reported to the
Miami-Dade Police that a young black male standing at a particular bus stop and
wearing a plaid shirt was carrying a gun.”). The Supreme Court noted in J.L. that, for
the anonymous-informant situation it was reviewing, reasonable suspicion “requires that
a tip be reliable in its assertion of illegality.” Id. at 272.
In the present case, Officer Martin called a number saved in the cell phone solely
to ascertain who left the cell phone at the Kroger store. He did not call that person for
information about the actual theft. Unlike the knowledge possessed by the informant in
J.L., the person that Officer Martin called did not need to know anything about the
shoplifting in order to provide Officer Martin with reasonable suspicion because the cell
phone was already tied to the shoplifting. That the person Officer Martin called did not
witness the shoplifting is thus irrelevant.
No. 11-6449 Sutton v. Metro. Gov’t of Nashville et al. Page 8
Sutton also argues that because the person Officer Martin called did not state that
the cell phone belonged to him, she provided Officer Martin no connection whatsoever
between Sutton and the theft. This argument contains both a factual allegation from the
complaint and an inference drawn from that allegation. The complaint alleges that “the
person from the contacts list . . . never stated the found phone was Jermaine Sutton’s
phone.” Because we are reviewing the denial of Officer Martin’s motion to dismiss, we
must accept this allegation as true. See, e.g., Michigan Bell Tel. Co. v. Climax Tel. Co.,
202 F.3d 862, 865 (6th Cir. 2000) (accepting factual allegations in the complaint as true
on review of a denial of a motion to dismiss). But the second part of Sutton’s
argument—that the person Officer Martin called provided no connection whatsoever
between Sutton and the theft—is not alleged in the complaint. Rather, it is an inference
that Sutton draws from the fact that “the person from the contacts list” did not state that
the phone found at the Kroger store belonged to Sutton.
Sutton’s proposed inference implicates three key facts from the complaint:
(1) the person called by Officer Martin gave Sutton’s name and place of work to Officer
Martin, (2) she did not say that the cell phone belonged to Sutton, and (3) Officer Martin
then went to Summit Medical Center to question Sutton about the cell phone. Two
opposing inferences can be drawn from these facts: (1) the inference that the person
called by Officer Martin provided no connection whatsoever between Sutton and the cell
phone, or (2) the inference that the person called by Officer Martin gave him further
information that connected Sutton to the cell phone (without saying that Sutton owned
it), thus motivating Officer Martin to find and question Sutton on that topic. If the first
inference is warranted by the alleged facts, then our obligation to “construe the
complaint in the light most favorable to [Sutton]” requires us to accept his inference.
See Bennet v. MIS Corp., 607 F.3d 1076, 1091 (6th Cir. 2010) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). But if the alleged facts do not warrant Sutton’s
inference, then we need not accept it as true. See, e.g., id. (“We need not, however,
accept unwarranted factual inferences.”).
No. 11-6449 Sutton v. Metro. Gov’t of Nashville et al. Page 9
Sutton’s inference is unwarranted because it makes no logical sense. Neither the
complaint nor Sutton’s brief suggest why, other than by reason of a connection to the
cell phone, the person contacted by Officer Martin would have given Sutton’s name to
Officer Martin. Nor do these documents suggest why, absent such a connection, Officer
Martin would seek out Sutton to ask whether the cell phone belonged to him. Thus, the
only reasonable inference that we can draw is that the person contacted by Officer
Martin made some connection between the cell phone and Sutton that is not set forth in
the complaint, providing Officer Martin with reasonable suspicion to further investigate
that connection. Sutton has therefore failed to sustain his burden of stating a claim that
Officer Martin violated his Fourth Amendment rights during the initial contact and
questioning.
Assuming that Officer Martin had a proper basis for the initial investigatory
detention, we must next determine “whether the degree of intrusion was reasonably
related in scope to the situation at hand, which is judged by examining the
reasonableness of [Officer Martin’s] conduct given [his] suspicions and the surrounding
circumstances.” United States v. Beauchamp, 659 F.3d 560, 569 (6th Cir. 2011) (ellipsis
and internal quotation marks omitted). “The scope of activities permitted during an
investigative stop is determined by the circumstances that initially justified the stop.”
United States v. Obasa, 15 F.3d 603, 607 (6th Cir. 1994). “When police actions go
beyond checking out the suspicious circumstances that led to the original stop, the
detention becomes an arrest that must be supported by probable cause.” Id. An officer
can ask a moderate number of questions to ascertain the detainee’s identity and to
confirm or dispel that officer’s initial suspicions, but “unless the detainee’s answers
provide the officer with probable cause to arrest him, he must then be released.” Id.(internal quotation marks omitted).
The permissible scope of Officer Martin’s initial detention of Sutton was to
ascertain his identity and to ask limited questions regarding the cell phone found at the
Kroger store. These are “the circumstances that initially justified the stop.” See id.Officer Martin did just that—he pulled out the cell phone found at the Kroger store and
No. 11-6449 Sutton v. Metro. Gov’t of Nashville et al. Page 10
asked Sutton if it belonged to him. Sutton denied ownership of that cell phone and,
when asked, produced one from his own pocket. At this point, a reasonable person in
Sutton’s position would not have felt under arrest because he had been questioned only
briefly and remained at the scene of the initial detention. See, e.g., United States v.
Richardson, 949 F.2d 851, 857 (6th Cir. 1991) (“The test is an objective one: would a
reasonable person in the defendant’s position have felt that he was under arrest or was
otherwise deprived of his freedom of action in any significant way.”) (internal quotation
marks omitted). Because the restraint on Sutton’s freedom at that point was quite
limited, the Terry stop had not converted into an arrest. See id. Had Sutton’s detention
ended here, his Fourth Amendment rights would not have been violated. But it did not
so end.
Instead, Officer Martin discounted the exculpatory information that Sutton
provided by wildly speculating that Sutton “looked like the kind of man who would have
a couple of nurses on the side and . . . would need two cell phones . . . so that [his] wife
would not find out about them.” An officer, however, cannot use pure speculation to
“turn a blind eye toward potentially exculpatory evidence” when assessing cause for the
continued detention of a suspect. Skovgard v. Pedro, 448 F. App’x 538, 544 (6th Cir.
2011) (internal quotation marks omitted). Having received an answer to his cell-phone
inquiry that did not produce more suspicion and knowing no other facts that could justify
the investigatory detention, Officer Martin lacked a reasonable basis for detaining Sutton
any further. The facts as alleged thus allow us to draw the reasonable inference that
Officer Martin was at that point detaining Sutton without reasonable suspicion, in
violation of the latter’s Fourth Amendment rights. See Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (defining “facial plausibility” as “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged”).
No. 11-6449 Sutton v. Metro. Gov’t of Nashville et al. Page 11
2. Sutton’s continued detention amounted to an arrest before the
eyewitness identification
Officer Martin also argues that he had probable cause to arrest Sutton based on
the eyewitness identification provided by Szcerbiak, the Kroger security guard. An
eyewitness identification is generally sufficient to establish probable cause for an arrest,
unless “there is an apparent reason for the officer to believe that the eyewitness was
lying” or was otherwise mistaken. United States v. Lanier, 636 F.3d 228, 233 (6th Cir.
2011) (internal quotation marks omitted). The district court wrongly discounted
Szcerbiak’s identification by reasoning that the court was “not in a position to determine
whether there was some ‘apparent reason’ for Officer Martin to disbelieve Mr.
Szcerbiak.” But this reasoning fails to take into account that Sutton has the burden of
alleging facts that, accepted as true, state a plausible claim for relief. See Twombly,
550 U.S. at 570. The complaint does not allege that Officer Martin had reason to doubt
Szcerbiak’s identification of Sutton.
Even though Officer Martin later viewed the Kroger surveillance video and was
unsure whether Sutton was the person depicted therein, he had no reason at the time of
Szcerbiak’s identification of Sutton at Summit Medical Center to doubt its accuracy.
And even if Officer Martin had viewed the surveillance video earlier, his uncertainty
about whom the video depicted would not have obligated him to override Szcerbiack’s
positive identification. Szcerbiack, after all, was the one who swore out the warrant
charging Sutton with the theft, not Officer Martin. In sum, Sutton’s arrest following
Szcerbiak’s identification does not state a Fourth Amendment claim.
But this error by the district court does not warrant a reversal because Sutton’s
detention amounted to an arrest prior to Szcerbiak’s identification. The detention went
beyond questioning Sutton about the cell phone and had several characteristics of a
“show of official authority” that the Supreme Court has found tantamount to an arrest.
See Florida v. Royer, 460 U.S. 491, 501-04 (1983) (plurality opinion) (describing
circumstances showing that the defendant was seized beyond a Terry stop). In Royer,
the Court concluded that the defendant was under arrest when the officers confronting
No. 11-6449 Sutton v. Metro. Gov’t of Nashville et al. Page 12
him identified themselves as narcotics agents, told him that they suspected him of
transporting narcotics, and asked him to accompany them to a separate room in the
airport without indicating that he was free to leave. Id. at 501. The officers had also
seized the defendant’s luggage. Id. at 503. Similarly, Sutton was surrounded by four
officers, told that he was a suspect, had his property confiscated, and then was grasped
by the arm and escorted away from his place of work. Not only did Officer Martin not
“indicat[e] in any way that [Sutton] was free to depart,” see id. at 501, but he
affirmatively stated that Sutton “could not go anywhere or do anything.”
To be sure, the officers did not place Sutton in a police vehicle or read him the
Miranda warnings before Szcerbiak identified him, but these factors are not necessary
to a determination that a detainee was arrested. See Lopez-Medina, 461 F.3d at 740(noting that reading Miranda rights is not dispositive). This court in Lopez-Medina
highlighted removals to police stations or vehicles as particular situations that can
transform a Terry stop into a full-fledged arrest, but did not hold that they were the only
examples of detainee transfers that can, along with other factors, amount to an arrest.
“[T]he removal of a suspect from the scene of the stop generally marks the point
at which the Fourth Amendment demands probable cause.” Centanni v. Eight Unknown
Officers, 15 F.3d 587, 591 (6th Cir. 1994). This is not to say, however, that any
movement of a suspect is tantamount to an arrest. See United States v. Johnson, 246 F.
App’x 982, 989 (6th Cir. 2007) (Cole, J., concurring) (“The Supreme Court has
recognized that, in some circumstances, police may transport a suspect a short distance
in aid of a Terry stop.”). In Johnson, police officers transported a suspect to a nearby
scene of a hit-and-run accident after finding the suspect walking in the vicinity of a
damaged, abandoned vehicle and displaying signs of intoxication and disorientation.
The suspect, Johnson, had head lacerations that were consistent with the police officers’
observations that the vehicle’s windshield had been struck by its driver’s head. In
holding that “[t]he specific, articulable facts indicated that Johnson had committed at
least one” of a number of crimes related to the accident, the court concluded that moving
him two-tenths of a mile back to the accident scene to further investigate whether he was
No. 11-6449 Sutton v. Metro. Gov’t of Nashville et al. Page 13
involved in the hit-and-run accident was justified under Terry. Id. at 986; see also id.
at 990 (Cole, J., concurring) (further explaining the court’s rationale).
The Terry stop in Johnson allowed for a brief transport of the suspect without
escalating into an arrest because the police officers had a number of facts to sustain their
reasonable suspicion. A broader factual base of suspicion permits a broader scope of
detention because, as noted above, “[t]he scope of activities permitted during an
investigative stop is determined by the circumstances that initially justified the stop.”
United States v. Obasa, 15 F.3d 603, 607 (6th Cir. 1994). No bright-line rule defines the
length or scope of a Terry stop or when such a stop becomes an arrest. Houston v. Clark
Cnty. Sheriff Deputy John Does 1–5, 174 F.3d 809, 823 (6th Cir. 1999) (citing United
States v. Sharpe, 470 U.S. 675, 685-86 (1985)). The fact that a suspect may be
transported in one Terry stop, in other words, does not mean that police officers can
forcibly move suspects in all Terry stops.
Unlike the officers in Johnson, Officer Martin’s sole basis for suspecting that
Sutton was the shoplifting perpetrator was an alleged connection to the cell phone found
at the Kroger grocery store, and this basis was neutralized when Sutton produced a cell
phone from his own pocket. Given the other Royer-like indicia of arrest discussed
above, Sutton’s forcible removal from the hospital exceeded the bounds of a Terry stop
and was thus an arrest requiring probable cause. Officer Martin does not contend that
he had probable cause to arrest Sutton absent Szcerbiak’s identification. Sutton has
therefore adequately pleaded that he was arrested without probable cause when he was
removed from the hospital.
C. Officer Martin is not entitled to qualified immunity
To defeat Officer Martin’s claim of qualified immunity, Sutton must show not
only that Officer Martin violated one of Sutton’s constitutional rights, but that the right
was clearly established. See Saucier v. Katz, 533 U.S. 194, 201 (2001). For the reasons
set forth in Part II.B. above, Sutton has stated a Fourth Amendment claim, thus
satisfying the first step in the qualified-immunity analysis. The next step is to determine
No. 11-6449 Sutton v. Metro. Gov’t of Nashville et al. Page 14
whether the Fourth Amendment right violated was clearly established at the time of
Officer Martin’s alleged misconduct.
A right is “clearly established” when “the contours of the right [are] sufficiently
clear that a reasonable official would understand that what he is doing violates that
right.” Roth v. Guzman, 650 F.3d 603, 609 (6th Cir. 2011) (internal quotation marks
omitted). The source of law that clearly establishes such a right is “precedent from the
Supreme Court, the Sixth Circuit, the district court itself, or other circuits that is directly
on point.” Holzemer v. City of Memphis, 621 F.3d 512, 527 (6th Cir. 2010) (internal
quotation marks omitted). A court need not have previously held illegal the conduct in
the precise situation at issue because “officials can still be on notice that their conduct
violates established law even in novel factual circumstances.” Sample v. Bailey,
409 F.3d 689, 699 (6th Cir. 2005) (internal quotation marks omitted).
The district court summarily concluded that the law clearly established that an
arrest without probable cause and a Terry stop without reasonable suspicion violate the
Fourth Amendment. But the court’s bare-bones analysis is far too general, failing to
recognize that the right violated must be clear in a particularized context so that a
reasonable official would be on notice that his actions were unconstitutional. See
Saucier, 533 U.S. at 202. Still, taking the facts alleged in the complaint as true, Sutton’s
constitutional rights were clearly established in this context and the court properly
concluded that the qualified-immunity defense fails at this juncture.
Officer Martin argues that no clearly established law “would have put [him] on
notice that questioning a person who had been identified in some connection to a
telephone dropped at the scene of a crime would amount to an unlawful ‘Terry stop.’”
This argument, however, misunderstands the nature of the constitutional violation as
alleged by Sutton. Officer Martin’s initial detention of Sutton for questioning was
permissible because the only reasonable inference that the complaint supports is that the
information from the person contacted on the cell phone provided an adequate basis for
suspecting that Sutton was connected to the theft. But Officer Martin’s continued
detention of Sutton became unreasonable after Officer Martin asked about the cell phone
No. 11-6449 Sutton v. Metro. Gov’t of Nashville et al. Page 15
and saw that Sutton had his own. Sutton’s production of his own cell phone, in other
words, neutralized whatever reasonable suspicion that had previously existed.
At the time of Officer Martin’s encounter with Sutton, Supreme Court precedent
was clear that “Terry detentions must be ‘limited in both scope and duration.’” United
States v. Everett, 601 F.3d 484, 488 (6th Cir. 2010) (brackets omitted) (quoting Royer,
460 U.S. at 500). The law was clearly established in “unequivocal” terms that
reasonable suspicion justifies only a “temporary seizure for the purpose of questioning
limited to the purpose of the stop.” Royer, 460 U.S. at 498 (citing United States v.
Brignoni-Ponce, 422 U.S. 873, 881-82 (1975)); but cf. Muehler v. Mena, 544 U.S. 93,
101 (2005) (questioning a detainee about her immigration status, unrelated to the
purpose of the detention, was permissible when the questioning did not prolong the
detention); Everett, 601 F.3d at 490 (explaining that the off-topic questioning in Mena
did not violate the Fourth Amendment because it did not prolong the detention).
Officer Martin’s only basis for detaining Sutton was his possible connection to
the cell phone found at the Kroger store. Although the Kroger store had a security video
of the shoplifting, Officer Martin had not viewed it before detaining Sutton, which
precludes the video from being a supplemental source for reasonable suspicion or
probable cause. Officer Martin’s continuing detention of Sutton thus violated the law
clearly established in Terry, Brignoni-Ponce, Royer, and Obasa, among other cases.
Likewise, the law was clearly established that the circumstances of Sutton’s
continued detention amounted to an arrest. The circumstances here track those present
in Royer: law-enforcement officers confronted Royer, identified themselves, told him
that he was suspected of a crime, asked him to accompany them to a separate room
without indicating that he was free to leave, and seized his property. 460 U.S. at 494.
Sixth Circuit precedent has highlighted the Royer factors in describing seizures that are
tantamount to a formal arrest. See, e.g., United States v. Williams, 615 F.3d 657, 664
(6th Cir. 2010) (“[T]he Supreme Court [in Royer] cited a criminal accusation by law
enforcement as a factor indicating that an individual was seized.”); United States v.
Richardson, 949 F.2d 851, 857 (6th Cir. 1991) (listing the Royer factors).
No. 11-6449 Sutton v. Metro. Gov’t of Nashville et al. Page 16
Although Royer occurred in the context of an airport detention, this court has
applied its analysis generally. See, e.g., Richardson, 949 F.2d at 854-57 (applying the
Royer factors when officers approached the defendant at a storage facility). In the
present case, Officer Martin accused Sutton of a crime, confiscated his cell phone, told
him that he “could not go anywhere or do anything,” grabbed him by the arm, and
escorted him from the hospital. Officer Martin’s affirmative command that Sutton could
not leave was in fact a clearer intrusion on Sutton’s liberty than the passive conduct that
the Royer court found significant—the failure to indicate that Royer was free to leave.
460 U.S. at 501.
In sum, Officer Martin is protected by qualified immunity with regard to his
initial contact with Sutton and in continuing to detain Sutton after the latter was
positively identified by Szcerbiak. But the allegations of Officer Martin’s conduct
between those two events are sufficient to state a claim that precludes qualified
immunity at this stage in the litigation.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the district court’s order
denying Officer Martin’s motion to dismiss, but we do so by considerably narrowing the
scope of Sutton’s Fourth Amendment claim.