Foley v. Kiely

United States Court of Appeals
For the First Circuit

No. 09-1250

MICHAEL J. FOLEY,

Plaintiff, Appellant,

v.

LAWRENCE KIELY; GERALD P. COLLINS; DIANA DIPIETRANTONIO,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Stahl, Circuit Judges.

Andrew M. Fischer with whom Jason & Fischer was on brief for
appellant.
Margaret A. Rubino with whom Joseph P. Kittredge and Rafanelli
& Kittredge, P.C. were on brief for appellee Kiely.
Brian Rogal with whom Rogal & Donnellan, P.C. was on brief for
appellee Collins.
Michael D. Brennan with whom Timothy M. Burke was on brief for
appellee Diana DiPietrantonio.

April 15, 2010
 STAHL, Circuit Judge. Plaintiff-appellant Michael Foley

appeals the dismissal of his 42 U.S.C. § 1983 claims against

Defendants Lawrence Kiely and Gerald Collins, Massachusetts State

Troopers, and Defendant Diana DiPientrantonio, a sergeant with the

Massachusetts State Police.1 Foley claims that Troopers Kiely and

Collins unconstitutionally seized and arrested him. The District

of Massachusetts granted summary judgment in favor of Defendants,

and after a de novo review, we affirm.

I. Facts and Background

Because we review this case after a grant of summary

judgment, we present the facts in the light most favorable to the

non-moving party and draw all reasonable inferences in that party's

favor. Estrada v. Rhode Island, 594 F.3d 56, 59 n.2 (1st Cir.

2010).

Foley is fifty-five years old and has no home address,

but sleeps outside in different locations in the Newton, Weston,

and Waltham, Massachusetts area. One place he frequents is the

Norumbega Park2 ("Norumbega") in Weston.

1
Though DiPientrantonio is still named as a defendant in this
action, there is no evidence that she took any action with regard
to Foley other than signing the paperwork that caused him to be
charged with being a fugitive from justice. This she did in her
role as the police prosecutor for the Framingham State Police
Barracks. Foley does not mention DiPientrantonio in either his
opening or reply brief, and we thus deem his claims against her
waived.
2
Defendants refer to Norumbega as "Norumbega Duck Pond" while
Foley calls it "Nurembega Park."

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 On December 4, 2004, Kiely and Collins were working their

regular assigned patrol shift as Massachusetts State Troopers.

Their patrol area included performing periodic facilities checks at

Norumbega. Norumbega is a public park, and there had been

complaints of lewd and lascivious behavior as well as car break-ins

in the area. Additionally, the Massachusetts Water Resources

Authority ("MWRA") has access pipes on site, and since September

11, 2001, the State Police have conducted security checks at

Norumbega for the MWRA.

On the afternoon of December 4, "probably between three

and 4:30, 5:00," Collins performed a facilities check at Norumbega.

At that time, Collins observed Foley walking around the pond.

There were many other people in the area at the time, and Collins

had no interaction with Foley. When Collins returned to the area

at about 6:30 p.m., he noticed a few distinct flashes from a

flashlight. He discovered that the person shining the flashlight

was the same person he had previously observed walking around the

pond. Collins asked Foley why he had been shining a flashlight in

Collins's direction, and Foley said he had the flashlight for his

own safety and so he could see what he was doing. Collins informed

Foley that he was in a high crime area and that there had been

problems with lewd and lascivious behavior and breaking into cars.

He asked Foley if anyone had ever bothered Foley or given him a

hard time, and Foley said that lately he had been left alone for

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the most part. Collins neither knew, nor did he inquire about,

Foley's name.

Later that night, Collins had a conversation with Kiely

about having observed the same person at Norumbega over the course

of a few hours. Collins asked Kiely to go back to Norumbega with

him and to back him up in the event that the individual was still

there.

At approximately 10:30 p.m., Collins returned to the park

with Kiely. Kiely and Collins both observed Foley walking along

the water, and Foley "sought to avoid unnecessary contact with

[them]." According to Kiely and Collins, Foley attempted to duck

behind some shrubbery along the waterside. Kiely approached Foley

and asked him for his name, and Foley replied, "Foley, Michael

Foley."3 Kiely then asked Foley for his date of birth, and Foley

provided it. The troopers also asked Foley for his Social Security

number, but he refused to provide it, allegedly saying that he did

not know it.4 Foley alleges that the troopers then told him that

he could not leave and prevented him from leaving by grabbing him.

3
Kiely and Collins assert that they also asked Foley for his
middle initial, and Foley stated that it was "F." Foley claims,
however, that he did not give a middle initial, and for purposes of
summary judgment, we accept Foley's version of the facts.
4
Foley's own deposition is unclear on this point. At one
point he states that he told the troopers that he did not know what
his Social Security number was. At another point, he states that
he "refused" to give his Social Security number. When asked why he
refused, he states "[p]rivate information. I didn't want to."

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 The troopers conducted a warrant check using the name and

date of birth that Foley had provided and found that a person of

that date of birth and name had a Board of Probation ("BOP") record

and that there was an outstanding federal National Crime

Information Center ("NCIC") warrant for the arrest of that person

out of the state of Florida. The Florida warrant was dated April

24, 1974. Kiely contacted Troop Headquarters to confirm the

information, and the dispatcher at Headquarters verified that there

was an outstanding NCIC warrant out of Florida matching the name

and date of birth provided by Foley. Because Foley told the

troopers that he had never been to Florida, Kiely sought and

obtained additional information from Foley to attempt to confirm

that Foley was the subject of the warrant. Foley on inquiry

provided his mother's maiden name as "Peters," and the dispatcher

at Troop Headquarters told Kiely that according to the BOP record,

the mother's name was Marjorie Peters. Though Foley had not

provided a Social Security number, the Social Security number on

the BOP record matched the Social Security number on the Florida

warrant. The information provided in the Warrant Management System

indicated that Miami Dade County, Florida would extradite.

Foley was placed under arrest for being a fugitive from

justice and transported by Kiely to the State Police barracks in

Framingham. The total length of the stop prior to Foley's arrest

is unclear from the record, but we will assume that it was no

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longer than an hour, as Foley concedes.5 At Foley's arraignment on

December 6, 2004, bail was set. Because Foley was unable to post

bail, he was transported to Middlesex County Jail, where he was

held for approximately ten days until the criminal charge against

him was dismissed.

II. Discussion

Summary judgment is appropriate if, viewing all factual

disputes in the light most favorable to the non-moving party, there

is no genuine issue as to any material fact that would prevent

judgment in favor of the moving party as a matter of law. Cianbro

Corp. v. George H. Dean, Inc., 596 F.3d 10, 14 (1st Cir. 2010). We

review a district court's grant of summary judgment de novo. Id.

A. Initial Stop

As an initial matter, we presume that the troopers' 10:30

p.m. interaction with Foley constituted a seizure in that Foley's

deposition testimony indicates that a reasonable person would not

have felt free to leave or to terminate the encounter. See Florida

v. Bostick, 501 U.S. 429, 436 (1991).

It is well-established, however, that not every seizure

is an arrest requiring probable cause under the Fourth Amendment.

Foley claims that once the police prevented him from leaving, the

5
We note that when Foley was asked at his deposition how long
he was with the troopers in the parking lot of the pond before he
was handcuffed and placed in the cruiser, he said "[b]etween 10 to
20 minutes. Maybe more. I can't remember exactly."

-6-
stop constituted an arrest for which probable cause was required,

but Foley misreads the law. There are "certain encounters between

police and private citizens, called Terry stops, that fall short of

the intrusiveness of a full arrest." Schubert v. City of

Springfield, 589 F.3d 496, 501 (1st Cir. 2009). In such

circumstances, an officer may make a brief investigatory stop of an

individual if the officer has reasonable suspicion "that criminal

activity may be afoot." United States v. Am, 564 F.3d 25, 29 (1st

Cir. 2009) (citing United States v. Arvizu, 534 U.S. 266 (2002)).

We follow a two-pronged inquiry to evaluate "whether the

officer's action was justified at its inception, and whether the

action taken was reasonably related in scope to the circumstances

which justified the interference in the first place." Am, 564 F.3d

at 29 (citations omitted).

To satisfy the first prong, we evaluate whether the

troopers can point to "a particularized and objective basis for

suspecting the person stopped of criminal activity." United States

v. Wright, 582 F.3d 199, 205 (1st Cir. 2009) (citations and

quotations omitted). "Th[e] particularity requirement means, in

effect, that such a finding must be 'grounded in specific and

articulable facts.'" United States v. Espinoza, 490 F.3d 41, 47

(1st Cir. 2007) (quoting United States v. Hensley, 469 U.S. 221,

229 (1985)). "The 'objective' component requires courts to 'focus

not on what the officer himself believed but, rather, on what a

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reasonable officer in his position would have thought.'" Wright,

582 F.3d at 205 (quoting Espinoza, 490 F.3d at 47).

Here, the undisputed facts establish that when Collins

and Kiely stopped Foley at about 10:30 p.m., it was reasonable for

them to suspect that he was in a restricted area and therefore

trespassing. The record indicates that the troopers both believed,

reasonably so, that Norumbega closed at dark and that the closing

time was indicated by signage at the park.6

6
Metropolitan District Commission ("MDC") regulations provide
that "[n]o person is allowed on MDC Reservations except during the
hours of dawn to dusk unless specified otherwise at the site, or by
permit." 350 CMR 2.01(2)(b). We note that there is some question
as to whether Norumbega is, in fact, under the jurisdiction of the
MDC and whether there were, in fact, signs posted at Norumbega
indicating the park's closing time on the day in question.
Regardless, we find that it was reasonable for Kiely and Collins to
believe that Norumbega, a public park, closed at dark, and that it
was signed accordingly. Foley accepts Kiely's statement that at
some point there were signs posted at the Norumbega parking lot
which indicated that parking after dark was not allowed. But he
points to the transcripts of Internal Affairs interviews taken on
February 27, 2006, when Kiely and Collins indicated that at some
point the signs were removed by vandals. Collins indicated in his
interview that he did not recall whether the signs were posted on
the night in question, and Kiely was not queried as to whether the
signs were there that night.
While it is possible that the signs could have been removed or
vandalized prior to December 4, 2004, it would have been reasonable
for the troopers to believe, on the day in question, that the signs
were, in fact, posted. Thus, their suspicion that Foley was
trespassing was not unreasonable. See Mass. Gen. Laws ch. 266, §
120 ("Whoever, without right enters or remains in or upon the . .
. improved or enclosed land . . . of another . . . after having
been forbidden so to do by the person who has lawful control of
said premises, whether directly or by notice posted thereon . . .
shall be punished by a fine of not more than one hundred dollars or
by imprisonment for thirty days or both such fine and
imprisonment.")

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 Additionally, the troopers knew that the area was one in

which crimes had been reported, including lewd behavior and car

break-ins, and they had reason to monitor the MWRA pipes in the

area for a potential terrorist threat. While it appears that they

had no particular reason to suspect Foley of any such crimes, those

circumstances would have reasonably made them more alert to the

presence of any individual in the park after dark, particularly one

who had already been observed there on two separate occasions,

hours before.

The second prong of the inquiry requires us to determine

whether the troopers' actions in connection with the stop were

reasonable in light of the totality of the circumstances

confronting them at the time of the stop. United States v.

McCarthy, 77 F.3d 522, 530 (1st Cir. 1996). Here, the troopers

asked Foley for identifying information, and after he did not

provide his Social Security number, they conducted a warrant check

using his name and birthdate. Foley also claims that one or both

of the troopers grabbed and/or pushed him, telling him not to

leave. When the warrant check turned up an outstanding 1974

Florida warrant for cannabis possession, the troopers continued to

detain Foley while they confirmed its validity. Eventually, they

handcuffed Foley and transported him to the Framingham barracks.

The length of the detention was no longer than one hour.

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 As we acknowledged in Klaucke v. Daly, 595 F.3d 20

(2010), "most circuits have held that an officer does not

impermissibly expand the scope of a Terry stop by performing a

background and warrant check, even where that search is unrelated

to the circumstances that initially drew the officer's attention."

Id. at 26 (citing United States v. Kirksey, 485 F.3d 955, 957 (7th

Cir. 2007); United States v. Cavitt, 550 F.3d 430, 437 (5th Cir.

2008); United States v. Long, 532 F.3d 791, 795 (8th Cir. 2008);

United States v. Rusher, 966 F.2d 868, 876-77 (4th Cir. 1992)).

Though we elected in that case not to address whether warrant

checks are always permissible in the normal course of a Terry stop,

we found that Klaucke's refusal to produce a license when the

officer requested it, "reasonably roused a suspicion that his non-

cooperation was driven by other considerations, like an outstanding

warrant for his arrest or other criminal history . . . ." Klaucke,

595 F.3d at 26. Here, similarly, we find that Foley's inability

(or unwillingness) to provide his Social Security number, combined

with his initial attempt to avoid contact with the police, provided

reasonable grounds for Collins and Kiely to investigate his

criminal history.

The fact that the troopers detained Foley for as much as

one hour while performing the warrant check is also not

problematic, especially as the facts reveal that any delay was

largely caused by the troopers' attempts to confirm the warrant's

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validity.7 "The excessive length of [Foley's] detention arose not

because the officers engaged in dilatory tactics, but, instead,

because their investigative efforts . . . failed to dispel the

suspicion that gave rise to the stop." McCarthy, 77 F.3d at 531

(holding that a seventy-five minute Terry stop was reasonable).

We note that Foley does not argue that the force which he

alleges the troopers employed in detaining him violated his

constitutional rights. His argument is simply that the troopers

lacked a reasonable basis on which to detain him, and as we have

discussed above, that argument fails.

B. Arrest Based on Warrant

Foley next challenges the validity of the Florida warrant

as a basis for his arrest, arguing that no warrant ever existed and

that the computer print-out produced as evidence of the warrant was

generated as part of a cover-up to justify Foley's illegal

detention. As we have already discussed, Foley's initial detention

was justified by reasonable suspicion separate and apart from the

results of the warrant check.

As for the validity of the warrant itself, Mass. Gen.

Laws ch. 276, § 23A, provides that "a printout of the electronic

warrant from the criminal justice information system ["CJIS"] shall

constitute a true copy of the warrant." Thus, the CJIS record of

7
While Foley claims that the warrant was not first discovered
until 11:37 p.m., the record indicates otherwise.

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the Florida warrant was statutorily sufficient for the troopers to

make an arrest.

Moreover, it was reasonable for the troopers to believe

that Foley was the individual named in the warrant, as both his

name and birthdate matched, and the Social Security number from his

BOP record matched the Social Security number listed in the

warrant.

As the warrant was valid on its face and matched the

identifying information which Foley had provided, Kiely and Collins

had probable cause to effectuate the arrest and did not deprive

Foley of any constitutional rights in so doing. See Baker v.

McCollan, 443 U.S. 137 (1979); Brady v. Dill, 187 F.3d 104 (1st

Cir. 1999).

III. Conclusion

We conclude that in detaining and subsequently arresting

Foley, Kiely and Collins did not violate his constitutional rights.

The judgment of the district court is affirmed.

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