Kimberlee Carbone v. Robert Salem

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 17-3780
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KIMBERLEE RAE CARBONE,
Appellant
v.
CHIEF ROBERT SALEM; OFFICER DAVID MAIELLA;
OFFICER TERRY DOLQUIST; OFFICER SHIELA PANELLA;
CORRECTION OFFICER APRIL BRIGHTSHUE;
CORRECTION OFFICER NIESHA SAVAGE;
COMMANDER MARK KEYSER; ATTORNEY JOSHUA LAMANCUSA;
JAMESON HEALTH SYSTEM; BERNARD GEISER, M.D.;
KIM FEE; THE CITY OF NEW CASTLE; THE COUNTY OF LAWRENCE
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 2-15-cv-01175)
Presiding Magistrate Judge: Hon. Maureen P. Kelly
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Submitted Pursuant to Third Circuit LAR 34.1(a):
May 2, 2019
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Before: RESTREPO, PORTER, and FISHER, Circuit Judges.
(Filed: October 22, 2019)
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OPINION *
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RESTREPO, Circuit Judge.
Kimberlee Rae Carbone appeals the District Court’s grant of summary judgment in
favor of Defendants, various police officers of the New Castle Police Department and other
corrections and medical personnel involved with her detention. We hold that Carbone’s
arrest and the ensuing searches of her person were permissible, and we therefore will
affirm.
On November 3, 2013, at approximately 6:00 p.m., Officer David Maiella stopped
Carbone’s vehicle after Carbone completed a left turn off of Ray Street in New Castle,
Pennsylvania. Officer Maiella initiated a stop of Carbone’s vehicle because he believed
that the car improperly signaled the turn. Upon approaching the vehicle, Officer Maiella
detected the odor of marijuana, and, after arriving at the scene, a canine unit provided a
“positive indication for the presence of narcotics.” App. 397a:3–11. Carbone then advised
Officer Maiella that she had smoked marijuana before operating her vehicle, at which point
he arrested her for driving under the influence, in violation of 75 Pa. Cons. Stat.
§ 3802(d)(1)(i).
While still at the scene of the arrest, Officer Maiella and Officer Terry Dolquist
observed Carbone reaching into her shorts and fidgeting in the back seat of the police
*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
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cruiser, at which point the officers began to suspect that Carbone was attempting to hide
something on her person. The officers then decided to transport her to the Lawrence County
Jail so that a female correction officer could perform a strip search. During the course of
the strip search, Corrections Officers April Brightshue and Niesha Savage both observed a
baggie partially hidden in Carbone’s vagina. Officer Brightshue also noted that Carbone
had something in her mouth, which Officers Maiella and Dolquist believed to be narcotics.
Due to the concern that Carbone may have ingested narcotics either through the item
concealed in her mouth, or the baggie of narcotics in her vagina, or both. Officers Maiella
and Dolquist determined that the situation presented a medical emergency and brought
Carbone to Jameson Hospital. At the hospital, Dr. Bernard Geiser, M.D., performed a
medical examination of Carbone and a cavity search.
Carbone brought suit under 42 U.S.C. § 1983, alleging, among other things, that her
Fourth Amendment right to be free from unreasonable searches and seizures had been
violated. The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have
jurisdiction pursuant to 28 U.S.C. § 1291. This Court exercises plenary review over a
district court’s grant of summary judgment. Reedy v. Evanson, 615 F.3d 197, 210 (3d Cir.
2010). Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
Viewing the facts in the light most favorable to Carbone, we hold that the various
police officers, corrections officials, and medical personnel did not exceed the bounds of
the Fourth Amendment in arresting Carbone and conducting the searches of her person.
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First, Officer Maiella had sufficient reasonable suspicion to initiate a stop of Carbone’s
vehicle because Officer Maiella can articulate specific facts as to why he believed that
Carbone executed a turn without applying her turn signal in a timely fashion. See United
States v. Delfin-Colina, 464 F.3d 392, 398 (3d Cir. 2006) (holding that “an officer need not
be factually accurate in her belief that a traffic law had been violated but, instead, need
only produce facts establishing that she reasonably believed that a violation had taken
place”); see also United States v. Mosley, 454 F.3d 249, 255 n.9 (3d Cir. 2006) (“A traffic
stop requires only reasonable suspicion to believe that a traffic violation has been
committed.”). Second, Officer Maiella had probable cause to arrest Carbone following the
traffic stop because he smelled marijuana emanating from Carbone’s vehicle, a canine unit
also detected the presence of marijuana, and Carbone admitted to Officer Maiella that she
had smoked marijuana prior to operating her vehicle. Thus, Officer Maiella had probable
cause to arrest Carbone because there was a “fair probability” that Carbone had violated
75 Pa. Cons. Stat. § 3802(d)(1)(i) by driving under the influence of marijuana. See
Dempsey v. Bucknell Univ., 834 F.3d 457, 467 (3d Cir. 2016) (“Far from demanding proof
of guilt beyond a reasonable doubt, ‘[p]robable cause exists if there is a fair probability that
the person committed the crime at issue.’” (alteration in original) (quoting Wilson v. Russo,
212 F.3d 781, 789 (3d Cir. 2000))); see also Commonwealth v. Jones, 121 A.3d 524, 529
(Pa. Super. Ct. 2015) (holding that “[b]ecause marijuana is a Schedule I controlled
substance, the Vehicle Code prohibits an individual from operating a vehicle after
consuming any amount of marijuana,” so long as marijuana can be detected in the driver’s
system).
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Third, Officer Maiella and Officer Dolquist’s decision to transport Carbone to the
Lawrence County Jail for female corrections officers to conduct a strip search was
reasonable under the circumstances because Carbone’s conduct during her arrest, such as
reaching into her shorts and fidgeting while in the police cruiser, indicated that she may
have been concealing contraband. See Bell v. Wolfish, 441 U.S. 520, 558–59 (1979)
(holding that the reasonableness of a search is determined under the circumstances); see
also Florence v. Bd. of Chosen Freeholders, 621 F.3d 296, 299 (3d Cir. 2010) (noting that
a majority of “circuit courts of appeals applied [the] balancing test [found in Bell v. Wolfish,
441 U.S. 520,] and uniformly concluded that an arrestee charged with minor offenses may
not be strip searched consistent with the Fourth Amendment unless the prison has
reasonable suspicion that the arrestee is concealing a weapon or other contraband”).
Fourth, because it was possible that Carbone had accidentally ingested the narcotics
that officers believed were contained in the concealed item in her mouth and/or the baggie
in her vagina, Carbone’s body cavity search was permissible without a warrant because the
situation presented a time-sensitive, medical emergency. See Schmerber v. California, 384
U.S. 757, 770 (1966) (holding that intrusions of the human body without a warrant can be
reasonable in cases of emergency); see also United States v. Owens, 475 F.2d 759, 760 (5th
Cir. 1973) (per curiam) (holding that a warrantless medical procedure, when authorized by
officers acting in good faith “to prevent further harm,” did not violate a detainee’s rights).
Further, because the warrantless cavity search was permissible under the exigent
circumstances that presented themselves, Carbone’s consent to the body cavity search was
not necessary.
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Therefore, for the reasons stated above, we affirm the District Court’s grant of
summary judgment in favor of Defendants.
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