Ernest Conrod v. Roger Davis ( 1997 )

No. 96-3398
Ernest Conrod, Jr., *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Roger Davis, * Eastern District of Missouri
*
Appellant. *
Submitted: March 10, 1997
Filed: July 17, 1997
Before McMILLIAN, Circuit Judge, HANSEN, Circuit Judge, and
MAGNUSON,* District Judge.
MAGNUSON, District Judge.
This action brought, pursuant to 42 U.S.C. § 1983, arises
out of the arrest and search of Appellee Ernest Conrad
("Conrad") by Appellant Roger Davis ("Davis"), a Missouri State
Highway Patrolman. The case previously was tried before a
jury, with Conrad representing himself pro se. The jury
returned a verdict in favor of Davis. During the trial, the
district court denied Davis’s Motion for Verdict as a Matter
of Law. This Court later reversed the jury’s verdict based on
Conrad’s lack of counsel and remanded the case for a new trial.
Based on the testimony presented at the first trial, Davis
moved for summary judgment, arguing that he was entitled to
qualified immunity and that Conrad was estopped from raising
* The HONORABLE PAUL A. MAGNUSON, Chief Judge, United States
District Court for the District of Minnesota, sitting by
designation.
his claims again in federal court. The district court denied
Davis’s motion on the grounds that the
2
court’s previous denial of the Motion for Verdict as a Matter
of Law was the law of the case and denied the motion. Davis
appeals the decision of the district court. We reverse and
enter judgment in favor of Appellant.
I
Appellant Davis is a corporal in the Missouri State
Highway Patrol. On the evening of December 24, 1988, Davis was
working on Interstate 88 in Scott County, Missouri. Using his
radar, Davis detected Conrad driving seventy-six miles per hour
in a sixty-five mile per hour zone. Conrad was driving a
Corvette with Mississippi license plates. The parties dispute
whether Conrad was traveling with his stepfather as a
passenger. According to trial testimony, each local judge in
Missouri sets the policy for when bond must be accepted for
speeding tickets. The Scott County judge had set a policy that
drivers from out of state who are stopped for speeding must
post bond. Davis was not authorized to accept bond because
those duties rested exclusively with the local sheriff.
Knowing that Conrad would have to post bond, Davis arrested
Conrad for his speeding violation. Arrest is authorized for
the offense of speeding in Missouri.
Davis contends that he asked Conrad for permission to
search the vehicle and that Conrad consented. Conrad maintains
that he refused permission. Davis then searched Conrad and the
vehicle. At the first trial, Davis testified that Conrad had
a bulge in his right front pants pocket. A search of Conrad
3
revealed $6,050 in cash. In searching the vehicle, Davis found
$4,000 in cash in a wicker briefcase. Davis asked Conrad where
he got the money. According to Davis, Conrad told him that the
money was rent money he collected for his uncle in St. Louis
for six rental properties
4
in Mississippi.2
Conrad’s mother was also traveling with Conrad but drove
in a separate vehicle. Conrad’s mother stopped her vehicle by
Conrad’s when she realized that Conrad had been stopped. Upon
observing the stopped vehicle, Davis approached Conrad’s mother
and asked her about Conrad’s uncle. According to Davis,
Conrad’s mother told Davis that Conrad’s uncle did not own any
property in Mississippi.3
According to Davis, he asked Conrad to drive his vehicle
to the sheriff’s office. Conrad contends that Davis handcuffed
him and placed him in his squad car and that his stepfather
drove Conrad’s vehicle to the sheriff’s office. While somewhat
unclear from the parties’ submissions, it appears that Davis
retained custody of Conrad’s possessions, including the money,
during the trip to the sheriff’s office.
Once at the sheriff’s office, Conrad’s vehicle was driven
to a car wash to get out of the rain. Davis asked Officer Greg
Kenley to have a drug-sniffing dog search the interior of
Conrad’s car. The dog found no contraband in the car. The
officers then had the dog sniff the money. According to Davis,
2
Conrad testified at trial that he received the money
from rental property he owned and through the sale of a van.
He testified that he intended to lend the money to his
uncle.
3
At trial, Conrad’s mother testified that Conrad’s uncle
did own five houses in Mississippi and that Conrad did not
own any property.
5
he placed the money in an envelope and placed the envelope in
a small room used for the test. Davis testified at trial that
Kenley told him that the dog "alerted" to the money indicating
the presence of drugs. Conrad contends that he, along with his
mother and stepfather, were in the room for the dog test and
that the dog had no reaction to the money. Davis testified
that Kenley conducted the canine test
6
pursuant to police policy and that no one else was in the room
with the dog.
Davis gave Conrad a ticket for speeding and a receipt for
the money taken from him. Conrad later paid the speeding
ticket. Davis turned the money over to the Drug Enforcement
Agency ("DEA") who later successfully initiated forfeiture
proceedings.
This case originally went to trial in February 1994,
resulting in a jury verdict for Davis. We reversed the verdict
because the district court had not appointed counsel for
Conrad. On remand, Davis moved the district court for summary
judgment. Relying on the prior trial testimony, Davis
contended that he was entitled to qualified immunity and that
Conrad was collaterally estopped from bringing his claims. The
district court denied Davis’s motion, believing that its
previous denial of a Motion for a Verdict as a Matter of Law
during the first trial precluded it from granting Davis’s
motion. Davis appeals the decision of the district court and
contends that he is entitled to summary judgment on two
grounds: (1) that he is entitled to qualified immunity; and (2)
that Conrad is collaterally estopped from bringing his claims.
II
Conrad does not address the district court’s decision
regarding the law of the case doctrine, apparently conceding
the appropriateness of review of that decision. The doctrine
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of the "law of the case" is a discretionary tool permitting a
district court to effectively manage the legal issues arising
during litigation. See Copeland v. Merrill Lynch & Co., 47
F.3d 1415, 1424 (5th Cir. 1995). It does not deprive the
district court of the ability to reconsider earlier rulings.
See id. Where the district court believes that an earlier
decision was reached in error, it may revisit the decision "to
avoid later reversal."
8
Lovett v. General Motors Corp., 975 F.2d 518, 522 (8th Cir.
1992) (citation omitted). To the extent that the district
court believed that it lacked the authority to review its
earlier decision, such a belief was erroneous.
However, even if the "law of the case" doctrine had
precluded the district court from considering the merits of
Davis’s motion, we have the authority to review the denial of
that motion. As the Seventh Circuit has held, "[l]aw of the
case . . . does not block a superior court from examining the
correctness of an earlier decision." Avitia v. Metropolitan
Club of Chicago, Inc., 924 F.2d 689, 690 (7th Cir. 1991). The
Supreme Court has made it clear that a decision denying
qualified immunity is appealable prior to the commencement of
trial. See Mitchell v. Forsyth, 472 U.S. 511 (1985); Wright
v. South Ark. Regional Health Center, Inc., 800 F.2d 199 (8th
Cir. 1986) (reversing district court’s denial of summary
judgment on appeal brought before commencement of trial).
Therefore, we shall address the merits of Davis’s appeal.
II
This Court reviews de novo a lower court’s denial of
summary judgment. See Hardin v. Hussman Corp., 45 F.3d 262,
264 (8th Cir. 1995). The Federal Rules of Civil Procedure
provide that summary judgment "shall be rendered forthwith if
the pleadings, depositions, answers to the interrogatories, and
admissions on file, together with the affidavits, if any, show
9
that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(c). Summary judgment is warranted where a
party fails to make a showing sufficient to establish an
essential element of that party’s case, and on which that party
will bear the burden of proof at trial. See Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
10
"[G]overnment officials performing discretionary functions
generally are shielded from liability for civil damages insofar
as their conduct does not violate clearly established rights
of which a reasonable person would have known." Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). The Supreme Court has
extended this immunity to state police officers, see Malley v.
Briggs, 475 U.S. 335 (1986), and it provides protection "to all
but the plainly incompetent or those who knowingly violate the
law." Id.Once a defense of qualified immunity is raised, a
plaintiff must offer "particularized" allegations of
unconstitutional or illegal conduct. See Anderson v.
Creighton, 483 U.S. 635, 639-40 (1987). "The contours of the
right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right."
Id. at 640. The official is not required to guess the
direction of future legal decisions, see Mitchell v. Forsyth,
472 U.S. 511, 535 (1985), but must rely on preexisting case law
for guidance. See Coffman v. Trickey, 884 F.2d 1057, 1063 (8th
Cir. 1989). Whether any individual will be held liable for
official actions "turns on the 'objective legal reasonableness'
of the action." Id. (citing Harlow, 457 U.S. at 819).
Conrad argues that the circumstances of his arrest and the
search of his vehicle and person were such that immunity is not
available to Davis. First, Conrad contends that Davis’s
actions in arresting Conrad were questionable. Conrad suggests
that Davis’s decision to arrest Conrad was possibly race-
11
related because speeding is a misdemeanor crime in Missouri and
because under cross-examination by Conrad during his initial
trial in federal court, Davis admitted that he did not recall
following a similar course of action with a non-minority
driver. However, Conrad does not explicitly argue that the
stop and arrest were illegal or unconstitutional, nor does he
provide any other evidence to suggest that the stop and arrest
were pretextual or illegal.
12
Furthermore, even if Conrad presented evidence that
Davis’s stated reasons for stopping Conrad were pretextual,
such evidence would not invalidate the stop and arrest. Conrad
does not dispute the fact that he was speeding. As the Supreme
Court recently held in Whren v. United States, 116 S.Ct. 1769, 1774
(1996), a police officer’s subjective intent is not relevant for
purposes of determining whether a traffic stop was objectively
reasonable under the Fourth Amendment. We have previously held
that "any traffic violation, even a minor one, gives an officer
probable cause to stop the violator. If the officer has
probable cause to stop the violator, the stop is objectively
reasonable and any ulterior motivation on the officer’s part
is irrelevant." United States v. Caldwell, 97 F.3d 1063, 1067
(8th Cir. 1996) (citing Whren, 116 S. Ct. at 1774).
Conrad has not presented any evidence that his arrest was
inappropriate or unconstitutional. Trial testimony
demonstrated that Conrad was arrested pursuant to state law and
local policy regarding the posting of bond. By paying his
speeding ticket, Conrad admitted that he violated the law.
Conrad's bald assertions of racist motivations on the part of
Davis do not render his conduct unconstitutional. The Supreme
Court rejected "the principle that ulterior motives can
invalidate police conduct that is justifiable on the basis of
probable cause to believe that a violation of the law has
occurred." Whren, 116 S. Ct. at 1773. Davis's conduct in
arresting Conrad was reasonable and appropriate.
Regardless of whether Conrad gave his consent for the
13
search, Davis had the authority to search Conrad and his
vehicle pursuant to Conrad’s lawful arrest. See New York v.
Belton, 453 U.S. 454, 460-61 (1981). Davis did not need
probable cause to believe another crime was being committed in
order to search Conrad or his vehicle.
The authority to search the person incident
to a lawful custodial arrest, while based
upon
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the need to disarm and to discover
evidence, does not depend on what a court
may later decide was the probability in a
particular arrest situation that weapons or
evidence would in fact be found upon the
person of the suspect. A custodial arrest
of a suspect based on probable cause is a
reasonable intrusion under the Fourth
Amendment; that intrusion being lawful, a
search incident to the arrest requires no
additional justification.
United States v. Robinson, 414 U.S. 218, 235 (1973).
Conrad argues that even if Davis was justified in
arresting him and searching his vehicle, Davis was not
authorized to hold his money and subject it to a canine sniff.
While it is somewhat unclear as to the exact point in time at
which Davis was to have "seized" Conrad’s money,4 it is clear
that Davis had assumed control over the money for purposes of
the canine sniff. Conrad argues that there is nothing illegal
about carrying cash and that nothing else would have given
Davis sufficient cause to detain Conrad’s money for further
testing. Conrad cites to Davis’s trial testimony and argues
that Davis did not suspect Conrad of fitting a drug courier
profile and did not discover any other weapons or contraband
which would have justified a seizure.
Pursuant to the lawful arrest, Davis had legal control
over both Conrad and his possessions. This case is unlike the
cases cited by Conrad. Each of the cited cases focuses on
4
It was disputed at trial whether Davis gave Conrad his
money to hold while they traveled to the sheriff’s office or kept
it with him in the squad car.
15
whether circumstances would justify an initial investigative
stop and search. See United States v. Sokolow, 490 U.S. 1, 7-9
(finding reasonable suspicion to support investigatory stop
where defendant paid for $2,100 airline ticket in cash from
roll of $20 bills, did not check his luggage, and agents
reasonably believed defendant was
16
traveling under an alias); United States v. Weaver, 966 F.2d
391, 394 (8th Cir. 1992)(finding reasonable suspicion for stop
where, among other things, defendant was on flight from known
drug source city, wore gang-like apparel, acted nervous, and
did not have identification); United States v. White, 890 F.2d
1413, 1417(8th Cir. 1989) (finding insufficient evidence to
support reasonable suspicion for stop where defendant bought
airline ticket with cash, arrived on flight known to be used
by narcotics traffickers, and acted nervous and suspicious in
the airport). In United States v. O’Neal, 17 F.3d 239 (8th
Cir. 1994), we found that the clothing and nervous appearance
of the young people detained by police did not provide
sufficient justification to stop them and search their bags.
Id. at 241-242. Here, Conrad had already been legitimately
stopped and arrested for speeding.
However, the circumstances of this case also indicate that
Davis had a reasonable suspicion that the funds were the
product of illegal drug activity. As we stated in United
States v. Jones,
Police officers may briefly detain luggage
for a dog-sniff search without violating
the Fourth Amendment . . . if there is
reasonable suspicion supported by
articuable, objective facts that the
luggage contains drugs. . . . We decide
whether reasonable suspicion existed based
on the totality of the circumstances.
990 F.2d 405, 407 (8th Cir. 1993). Conrad carried over $6,000
in small denominations in his front pants pocket and $4,000 in
a wicker briefcase in the automobile. Testimony at trial
17
indicated that Davis had received training in drug interdiction
and that he knew that drug couriers often carry large amounts
of cash in small denominations. Davis also knew that couriers
often carry their drugs along with cash. When asked about the
money, Conrad stated that it was from rental property owned by
his uncle. Conrad’s mother contradicted Conrad, denying that
Conrad’s uncle owned any
18
such rental property.5 While there may have been a logical
explanation for these unusual circumstances, these are not
"innocent, non-suspicion-raising details." Weaver, 966 F.2d
at 396. Given that Davis had already stopped Conrad for
violating traffic laws, it was reasonable for Davis to subject
the money already legally in Davis’s possession to a canine
sniff. In addition, there does not appear to have been any
significant delay in having the drug dog test the money. The
test was conducted as soon as Conrad was brought to the
sheriff’s office and the car moved to a dry location. See
White, 42 F.2d at 460 (finding that a delay of one hour and
twenty minutes for arrival of drug dogs was not unreasonable).
Conrad argues that Davis did not believe that Conrad fit
a drug courier profile. Conrad contends that there was no
evidence at trial that Davis relied on his past drug
interdiction training or other sorts of reliable indicia that
would suggest drug activity. Without such evidence, Conrad
argues that there was no objective basis for believing that
Conrad was involved with drugs and therefore, that the seizure
of Conrad’s money was unconstitutional. As we stated in United
States v. Jones, "[b]ecause we decide whether reasonable
suspicion justifies a detention based on all the objective
facts, we are not limited by the detaining officer’s subjective
opinions." 990 F.2d at 408. Regardless of Davis’s subjective
opinions, we find that there was an objective basis for Davis’s
5
While the trial testimony of both Conrad and his mother
conflicted with Davis’s version of these stories, Conrad’s
explanation for the money was still in conflict with that of his
mother.
19
reasonable suspicion.
20
IV
We have recently stated that a "judicial determination
that . . . seized property was connected with a drug
transaction" is not necessary before transferring property to
the DEA for forfeiture proceedings. Madewell v. Downs, 68 F.3d
1030, 1043 (8th Cir. 1995). While not explicitly challenged
in this appeal, Conrad suggests that the drug dog did not
"alert" to the money taken from him and therefore, that there
was insufficient evidence to support a transfer of the money
to the DEA.
Conrad does not argue with the proposition that a positive
canine test for drugs would establish probable cause for
seizing property and transferring it to the DEA. Instead,
Conrad argued at trial and continues to suggest in this appeal,
that the drug dog did not "alert" to the money. Conrad does
not, however, challenge Davis’s assertion that Officer Kenley
told him that the dog had alerted to the money. Based on
information told to him by a fellow officer, it was reasonable
for Davis to believe that the money was tainted by drugs and
should be transferred to the DEA for forfeiture proceedings.
V
Appellant Davis stopped Appellee Conrad for violating state traffic
laws. In accordance with state and local law, Davis arrested Conrad and
conducted a search pursuant to that arrest. Based on the circumstances of
Conrad’s stop and the inconsistent answers to Davis’s questions, Davis had
21
reasonable suspicion that the money discovered as part of the search was
involved in illegal drug activity. Davis did not violate Conrad’s
constitutional rights by subjecting the money taken from him to a canine
sniff. Once Officer Kenley told Davis that the drug dog had alerted to the
money, Davis acted appropriately in transferring the funds to the
22
DEA for forfeiture proceedings. Davis’s actions were reasonable and he is
therefore entitled to qualified immunity for the stop, arrest, and search
of Appellee Conrad.
Because we hold that Davis is entitled to qualified immunity, the
Court does not address Davis’s contention that Conrad is collaterally
estopped from bringing his claims. The judgment of the district court is
reversed. The case is remanded to the district court with directions that
judgment be entered for the defendant.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT
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