United States District Court, D. Maryland, Southern Division
GEORGE JARROD HAZEL, District Judge.
This is a civil rights action brought by Plaintiff Everett Whitley ("Whitley") against Prince George's County and Detective Thomas Harley ("Detective Harley") and Maurice Talley ("Detective Talley") arising out of the alleged improprieties surrounding Whitley's arrest on November 23, 2009. This Memorandum and accompanying Order address the Motion for Summary Judgment filed by Detective Harley and Detective Talley (collectively, "Defendants"), ECF No. 25, Whitley's Opposition thereto, ECF No. 29, and Defendants' Reply in support of its motion, ECF No. 32. The Court finds that a hearing is unnecessary in this case. See Loc. R. 105.6. For the reasons stated below, Defendants' Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART.
An individual named Eric Jamal Harper was shot on October 24, 2009 at the entrance to an apartment building located at 6802 Atwood Street, District Heights, Maryland, by someone other than Whitley. See ECF No. 1 at ¶¶ 8, 11. That same day, Detective Talley, a member of the Prince George's County Police Department, interviewed an eyewitness who described the shooter as a wearing a "white shirt" and "blue jeans with dreads to his shoulders." ECF No. 25-3 at 10. That witness later identified Whitley as the shooter during a six-picture photo array conducted by Detective Harley, also a member of the Prince George's County Police Department. See ECF No. 1 at ¶12. Based on the witness's identification of Whitley as the shooter, Detective Harley, on November 4, 2009, applied for and obtained an arrest warrant for Whitley. See ECF No. 25-1 at 3. The only information in the arrest warrant linking Whitley as the shooter was the witness's identification. See ECF No. 25-5. Similarly, on November 18, 2009, Detective Harley swore out an affidavit for a search warrant for Whitley's apartment. See ECF No. 25-2. Just like the arrest warrant, the search warrant application relied heavily on the witness's identification of Whitley as the shooter. See id. The state judge found that probable cause existed to search Whitley's apartment and issued the search warrant. See id. According to Whitley, however, "the eyewitness statement and photographic identification relied upon by the Defendant Detectives was improper and incorrect." ECF No. 1 at ¶ 12.
Nevertheless, on November 23, 2009, Defendants executed the search and arrest warrants, during which Whitley claims he was "physically attacked." See id. at ¶ 14. Whitley was ultimately charged with violations of Maryland law in conjunction with the shooting. See id. at ¶¶ 14-15 & 19. Whitley spent more than forty days incarcerated before he was released and had all charges terminated in his favor. See id. at ¶¶ 17-18. Following Whitley's release, he filed suit against Defendants claiming that his constitutional rights were violated when they "arrest[ed] him without probable cause, search[ed] him without probable cause, and subject[ed] him to excessive and unreasonable force." Id. at ¶ 65. Whitley's complaint contained twenty-five counts, most of which were dismissed by Judge Grimm on July 11, 2013 following Defendants' (including Prince George's County) first motion for summary judgment. See ECF Nos. 11 & 12. Four counts, however, remain, including (1) a § 1983 claim for violation of Whitley's Fourth Amendment rights; (2) a § 1983 claim for violation of Whitley's Fifth Amendment ( Miranda ) rights; (3) a §1985 claim for a conspiracy to violate Whitley's constitutional rights; and (4) a §1986 claim for a failure to prevent a conspiracy to violate Whitley's constitutional rights. Defendants have filed their second motion for summary judgment. See ECF No. 25. For the reasons discussed more fully below, Defendants' motion is granted, in part, and denied, in part.
II. STANDARD OF REVIEW
Summary judgment is proper if there are no issues of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 302 (4th Cir. 2006). A material fact is one that "might affect the outcome of the suit under the governing law." Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183 (4th Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute of material fact is only "genuine" if sufficient evidence favoring the non-moving party exists for the trier of fact to return a verdict for that party. Anderson, 477 U.S. at 248-49. However, the nonmoving party "cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another." Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1986). The Court may only rely on facts supported in the record, not simply assertions in the pleadings, in order to fulfill its "affirmative obligation... to prevent factually unsupported claims or defenses' from proceeding to trial." Felty v. Grave-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (citing Celotex, 477 U.S. at 323-24). When ruling on a motion for summary judgment, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255.
A. Section 1983 Claim - 4th Amendment (Count II)
Whitley asserts a claim under § 1983 for violation of his Fourth Amendment rights. See ECF No. 1 at ¶¶ 52-78. Section 1983 provides a remedy against any person who, under color of state law, deprives another of rights protected by the United States Constitution. See 42 U.S.C. § 1983. Section 1983, however "is not itself a source of substantive rights, ' but merely provides a method for vindicating federal rights elsewhere conferred.'" Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144, n.3 (1979)). In his complaint, Whitley identifies the Fourth Amendment as the underlying source of his § 1983 claim. Specifically, Whitley claims that his Fourth Amendment rights were violated when Defendants "arrest[ed] him without probable cause, search[ed] him without probable cause, and subject[ed] him to excessive and unreasonable force." ECF No. 1 at ¶ 65. Defendants filed a motion for summary judgment. See ECF No. 25. For the reasons discussed below, the Court finds that a genuine issue of material fact exists as to whether or not there was probable cause to issue either the search warrant or the arrest warrant. As such, the Court will deny Defendants' motion for summary judgment as to Count II to the extent that claim relates to Defendants' wrongful arrest and unreasonable search. The Court will, however, grant Defendants' motion for summary judgment as to Count II to the extent that claim relates to Defendants' use of excessive force, as Whitley has failed to demonstrate the existence of disputed material facts regarding Defendants' use of force.
1. False Arrest & Unreasonable Search
Whitley contends that Defendants violated his Fourth Amendment rights by arresting and searching him pursuant to warrants that contained false and/or misleading statements without which the warrants would not have contained probable cause. See ECF No. 1 at ¶ 65. To succeed on a claim that a search or "seizure was unreasonable because it followed from a warrant affidavit that was deficient because it was dishonest, " a plaintiff must prove that the attesting officer (in this case Detective Harley) "deliberately or with a reckless disregard for the truth' made material false statements in his affidavit, or omitted from that affidavit material facts with the intent to make, or with reckless disregard of whether they thereby made, the affidavit misleading.'" Miller v. Prince George's Cnty., MD, 475 F.3d 621, 627 (4th Cir. 2007) (citations omitted). "Reckless disregard" can be established by evidence that an officer acted "with a high degree of awareness of [a statement's] probable falsity, " that is, "when viewing all the evidence, the affiant must have entertained serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he reported." Id. Violations of the Fourth Amendment, however, are not limited to misrepresentations or omissions; a misleading statement contained in a warrant affidavit can also violate the Fourth Amendment so long as there is "evidence that this statement... was sufficiently likely to mislead the issuing magistrate...." Wilkes v. Young, 28 F.3d 1362, 1373 (4th Cir. 1994) (recognizing that a statement in a warrant affidavit need not be "literally untruthful" to violate the Fourth Amendment). Additionally, a plaintiff must prove that the false or misleading statement was material to the judicial officer's finding of probable cause. See Franks v. Delaware, 438 U.S. 154, 171-72 (1978); Tincher v. Fink, No. 03-0030, 2005 WL 1845319, at *6 (S.D. W.Va. Aug. 2, 2005) ("As the Fourth Circuit has noted, a false or misleading statement made while obtaining a warrant constitutes a Fourth Amendment violation only if the statement is necessary to the finding of probable cause.").
First, with respect to the arrest warrant, the Application for Statement of Charges, prepared by Detective Harley on November 5, 2009 states, in full, that:
On 10-24-09 the victim (Eric Harper) was shot by the defendant (Whitley, Everett) in front of the above address. The victim was on his wa[y] home when the defendant stood in front of 6802 Atwood Street and pointed a handgun at him and shot two rounds striking the victim twice in his leg. The Victim was transported to a local hospital where he was treated and released. The victim is waiting for surgery to have the bullet removed from his right leg. The witness [Ms. Nedia Boodie] saw the event and later identified [Whitley] by photo spread as the shooter. All of these events took place in Prince George['s] [C]ounty Maryland.
See ECF No. 25-5 at 2 (emphasis added).
Similarly, the affidavit prepared by Detective Harley on November 18, 2009 in support of the search warrant states, in relevant part, that:
The Witness (Nedia Boodie) stated to this Detective that she looked out of her upstairs window located at 6802 Atwood Street District Heights, Prince Georges [sic] County Maryland. The Witness states that when she looked[, ] she saw two suspects standing in front of the building. These suspects were described as [a] black male wearing [a] green shirt[, ] dark pants with dreads and a male or female wearing [a] white shirt with dark pants with twisted hair. The Witness stated that the male wearing the green shirt was the individual who shot the victim. The witness also stated that both subjects live[d] down stairs in apartment #2. The [W]itness was shown a 6 person proto array on 11-2-09 at 2245 at which time the [W]itness positively identified the Defendant (Whitley, Everett) as the shooter in this incident. In conclusion[, ] the [W]itness indicated to this Detective that the defendant lives at 6802 Atwood Street apt 2 District Heights, Maryland. The Witness has lived on the complex for several years.
See ECF No. 25-2 a 2 (emphasis added).
Whitley argues that Detective Harley's statements in both warrant applications regarding Ms. Boodie's identification of Whitley as the shooter were misleading, insofar as that identification was procured through an impermissibly suggestive photo array conducted by Detective Harley. As a result, Whitley contends that this inherently unreliable identification cannot form the basis of a probable cause determination. The Fourth Amendment does "not permit a police officer deliberately, or with reckless disregard for the truth, to make material misrepresentations or omissions to seek a warrant that would otherwise be without probable cause." Miller, 475 F.3d at 632. Here, the Court finds that discovery has revealed evidence from which a jury could determine that Detective Harley's statements in the warrant applications that Ms. Boodie identified Whitley as the shooter were made with reckless disregard for the truth; that is, at the time Detective Harley made these representations, he had obvious reasons to doubt the accuracy of the information he reported.
For example, Ms. Boodie testified at her deposition that prior to identifying Whitley as the shooter from the photo array, Detective Harley pointed to the picture of Whitley and suggested to her that he was the suspect. See ECF No. 29-1 at 42:13-43:9. Only after Detective Harley identified Whitley as the shooter did Ms. Boodie select him as the suspect. If accepted by a jury as true, such a tactic would be impermissibly suggestive. The purpose of the photo array was to determine whether Ms. Boodie - the only eyewitness - was able to independently identify the shooter among a random selection of similar-looking individuals. Obviously, by pointing directly to Whitley, Detective Harley would make it more likely that Ms. Boodie would identify Whitley as the shooter thereby making the photo array improper. See Thomas v. Varner, 428 F.3d 491, 503 (3d Cir. 2005) (photo array impermissibly suggestive where witness failed to identify defendant on several occasions before being told by detective to look "real good" at the defendant).
Further exacerbating the allegedly suggestive nature of Detective Harley's photo array was the fact that the picture of Whitley was the only one of the six photographs depicting a man in an orange prison shirt. This tactic could also be viewed as impermissibly suggestive as it would cause Whitley to stand out from the other individuals depicted in the photo array. See e.g., United States v. Saunders, 501 F.3d 384, 390 (4th Cir. 2007) (photo array impermissibly suggestive where defendant's "photo stood out sharply from the others in the array" because "[t]he dark background and lack of overhead lighting in [defendant's] photo distinguished it from the remaining five photos, all of which had light backgrounds and overhead lighting"); United States v. Wiseman, 172 F.3d 1196, 1209 (10th Cir. 1999) ("[D]ifferences such as background color can make a picture stand out, and can act to repeatedly draw a witness's eye to that picture."); Gregory-Bey v. Hanks, 332 F.3d 1036, 1045 (7th Cir. 2003) (a photo that stands out from the others "implicitly suggests to the witness that this is the man'"). Indeed, Detective Harley effectively conceded at his deposition that the photo array depicting Whitley in an orange prison shirt was unfairly suggestive. Specifically, Detective Harley testified as follows:
[Plaintiff's Counsel]: Okay. You mentioned similar attributes. Is one of the - what's the purpose of having similar attributes?
[Detective Harley]: So that we're not singling out the suspect.
[Plaintiff's Counsel]: What do you mean by that? Describe that to me.
[Detective Harley]: Well, we don't want him standing alone so it becomes obvious that you're helping the individual identify.
[Plaintiff's Counsel]: So anything that causes the suspect to stand out or look different might be suggestive to the witness that that was the person that you wanted ...