Kilgore v. City of Stroud

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 29, 2005
FOR THE TENTH CIRCUIT
Clerk of Court

JAMES KILGORE,

Plaintiff-Appellant,

v. No. 04-6273
(D.C. No. 03-CV-1583-F)
CITY OF STROUD, OKLAHOMA, a (W.D. Okla.)
municipal corporation; LUCKY
MILLER; GLOVER CRITTENDEN,

Defendants-Appellees,

and

CITY OF DAVENPORT,
OKLAHOMA, a municipal
corporation; BILL SIDES,

Defendants.

ORDER AND JUDGMENT *

Before HENRY, ANDERSON , and TYMKOVICH , Circuit Judges.

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
 After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

James Kilgore appeals from the district court’s grant of summary judgment

to the City of Stroud, Oklahoma, Lucky Miller, and Glover Crittenden

Mr. Kilgore brought a 42 U.S.C. § 1983 claim against the individual defendants

arising from his arrest on drug charges. He asserted that they had violated his

Fourth Amendment right to be free from unreasonable searches and seizures.

Mr. Crittenden was Stroud’s chief of police and Mr. Miller was a sergeant in the

police department.

Mr. Kilgore also brought state claims against the City under the Oklahoma

Governmental Tort Claims Act, Okla. Stat. tit. 51, §§ 151-172, alleging that the

City was liable for the torts of trespass upon the person, false arrest, assault, and

battery committed by Officer Miller and Chief Crittenden. The district court

granted summary judgment for Officer Miller and Chief Crittenden on the federal

claims and, exercising pendant jurisdiction, granted summary judgment to the City

on the state claims. Mr. Kilgore appeals. We exercise jurisdiction under 28

U.S.C. § 1291, and affirm.

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 I. Background

Under Federal Rule of Civil Procedure 56(c), summary judgment shall be

granted if the record shows that “there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter of law.” We

review the district court’s grant of summary judgment de novo, applying the same

legal standard as the district court. Johnson v. Lindon City Corp. , 405 F.3d 1065,

1067-68 (10th Cir. 2005). “We view the evidence and draw reasonable inferences

therefrom in the light most favorable to the nonmoving party.” Id. at 1068

(internal quotation marks omitted).

In April of 2003, Chief Crittenden and Officer Miller had information from

a confidential informant that a man named Clifford Lewis and a woman named

Jamie Hulls were buying over-the-counter decongestant tablets containing

pseudoephedrine from the store manager at a local convenience store. The

officers also had been informed that Ms. Hulls “was manufacturing

methamphetamine at her residence with [Mr.] Lewis.” Aplt. App., Vol. 1, Doc. 7,

Attach. A at 1. The officers knew that pseudoephedrine is a precursor ingredient

for methamphetamine and that Mr. Lewis had previously been convicted of

possessing methamphetamine. Officer Miller contacted the corporate offices of

the convenience store and was shown a video tape of the store manager being

handed twenty boxes of decongestant tablets containing pseudoephedrine by a

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female customer and then placing the tablets in a sack behind the counter until the

store was empty of other customers, at which time the manager rang up the sale of

the tablets and the female customer departed.

Officer Miller contacted the store manager, asked her to come to the police

station, and then confronted the manager with the incriminating video tape. The

manager identified the woman in the video as Ms. Hulls and advised Officer

Miller (1) that she had been ordering extra pseudoephedrine for Mr. Lewis and

Ms. Hulls for eight weeks, (2) that either Mr. Lewis or Ms. Hulls would pick up

the tablets on either Tuesdays or Thursdays, and (3) that “[Ms. Hulls] and

[Mr.] Lewis were using the pseudoephedrine tablets to manufacture

methamphetamine.” Id. at 2. The store manager also advised Officer Miller (4)

that there was a pick-up scheduled for that day, April 24, 2003. The manager

agreed to proceed with the sale and call Officer Miller on his cell phone when the

tablets were purchased.

An hour after the store manager returned to her duties, Mr. Lewis arrived,

entered the store, exited with a white plastic bag, and got back in his truck. The

store manager called Officer Miller, who had been covertly watching the store,

and told him that Mr. Lewis had “purchased a lot of pseudoephedrine tablets.” Id.

at 3. Officer Miller immediately called Chief Crittenden, who was stationed

nearby. Chief Crittenden intercepted Mr. Lewis’s truck, pulling in front of it to

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prevent it from leaving the store’s parking lot. Officer Miller pulled his car along

the passenger side of Mr. Lewis’ truck. Mr. Kilgore was seated next to Mr. Lewis

in the front passenger seat of the truck. Officer Miller exited his car and, as he

walked behind the truck, Mr. Lewis put the truck in reverse, revved the engine

and began backing up. Officer Miller jumped out of the way to avoid being run

over and fired two shots into the front passenger-side tire. Mr. Lewis kept

driving in reverse through the parking lot but, once he realized his tire was flat,

he fled on foot. He was apprehended by Chief Crittenden a block away from the

store. While Chief Crittenden drove after Mr. Lewis, Officer Miller asked

Mr. Kilgore to get in the back of Officer Miller’s police car so that Officer Miller

could help Chief Crittenden search for Mr. Lewis. “Almost immediately,

however, Chief Crittenden advised [Officer Miller] that he had located

[Mr.] Lewis,” and returned to the convenience store. Id. at 4.

Officer Miller called for a tow truck in order to impound Mr. Lewis’ truck

and then searched the vehicle in order to inventory the contents and complete a

stored vehicle report. Among other things, Officer Miller found a case on the

passenger side floorboard containing (1) sixty unused needles and syringes, and

(2) a cigar box with a used needle and syringe inside. Officer Miller also found a

plastic bag containing eleven boxes of decongestant tablets in the middle of the

back seat. Mr. Kilgore and Mr. Lewis were both arrested. The next day, an

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Oklahoma state court judge found that probable cause existed for Mr. Kilgore’s

arrest and detention for possession of a precursor substance with the intent to

distribute. This charge was later dismissed after Mr. Kilgore had been in jail for

approximately two months.

II. Analysis

Mr. Kilgore ask us to answer the following questions: (1) Were his Fourth

Amendment and state law rights violated by the initial stop of Mr. Lewis’ truck,

its subsequent search, and Mr. Kilgore’s arrest? (2) Were disputed questions of

material fact present that would preclude summary judgment? The second of

these questions is easily answered. All of the material facts before the district

court were taken from the affidavits of Chief Crittenden and Officer Miller and

the other documents that were attached to the defendants’ motion for summary

judgment. Mr. Kilgore did not dispute any of the material facts. As to the first

question, we will examine Mr. Kilgore’s 42 U.S.C. § 1983 claims against Chief

Crittenden and Officer Miller before turning to his state law claims against the

City.

A. Fourth Amendment Claims

“Under the Fourth Amendment, made applicable to the States by the

Fourteenth Amendment, the people are ‘to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures, . . . and no

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Warrants shall issue, but upon probable cause . . . .’” Maryland v. Pringle ,

540 U.S. 366, 369 (2003) (quoting U.S. Const. amend. IV) (citation omitted;

alterations in original). Under 42 U.S.C. § 1983, “[e]very person who, under

color of any statute, ordinance, regulation, custom, or usage, of any State . . .

subjects, or causes to be subjected, any citizen of the United States . . . to the

deprivation of any rights, privileges, or immunities secured by the Constitution

. . . , shall be liable to the party injured in an action at law.”

According to the Supreme Court, there are three types of
police-citizen encounters: (1) consensual encounters which do not
implicate the Fourth Amendment, (2) investigative detentions which
are Fourth Amendment seizures of limited scope and duration and
must be supported by a reasonable suspicion of criminal activity, and
(3) arrests, the most intrusive of Fourth Amendment seizures and
reasonable only if supported by probable cause.

United States v. Davis , 94 F.3d 1465, 1467-68 (10th Cir. 1996) (internal quotation

marks and citations omitted).

We must first note that neither party identifies the specific offense for

which Mr. Kilgore was arrested. The offense was described in some accounts as

“possession of a precursor substance,” see, e.g., Aplt. App., Vol. I, Doc. 7,

Attach. A at 5, and in others as “possession of a precursor substance with intent

to distribute,” see, e.g., id., Attach. E at 1. Under Okla. Stat. tit. 63, § 2-332(A),

“[i]t [was] unlawful for a person to knowingly and unlawfully possess a drug

product containing . . . pseudoephedrine . . . with intent to use the product as a

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precursor to manufacture methamphetamine or another controlled substance.”

Under Okla. Stat. tit. 63, § 2-322, it was a crime for a person to “possess, sell,

manufacture, transfer, or otherwise furnish” pseudoephedrine without a permit.

As discussed below, there was probable cause for Mr. Kilgore to be arrested for

either offense. The exact offense the officers intended to arrest Mr. Kilgore for

committing is irrelevant. “Probable cause need only exist as to any offense that

could be charged under the circumstances.” Barna v. City of Perth Amboy,

42 F.3d 809, 819 (3d Cir. 1994). “[I]t is irrelevant to the probable cause analysis

what crime a suspect is eventually charged with or whether a person is later

acquitted of the crime for which she or he was arrested.” Wright v. City of

Philadelphia, 409 F.3d 595, 602 (3d Cir. 2005) (citation omitted); see also Marrs

v. Boles, 51 F. Supp. 2d 1127, 1135 (D. Kan. 1998) (“If probable cause exists as

to one charged crime, whether the police had probable cause to arrest for other

crimes is irrelevant.”).

1. The Initial Stop of Mr. Lewis’ Truck

Mr. Kilgore argues that he was arrested when Mr. Lewis’ vehicle was first

stopped. We disagree. The determination of what point in time Mr. Kilgore was

arrested is not dependant on either Mr. Kilgore’s or the officers’ beliefs regarding

when an arrest occurred.

The police conduct should be judged in terms of what was done
rather than what the officer involved may have called it at the time.

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 If an officer tells the suspect he is under arrest but then conducts
only a frisk and finds a weapon, a later determination that grounds
for arrest were lacking should not render inadmissible the discovered
weapon if there were in fact grounds for a stop and the frisk.
Obviously the result would be otherwise if the search exceeded that
permissible under Terry [v. Ohio , 392 U.S. 1 (1968)].

Wayne R. LaFave et al., 2 Criminal Procedure § 3.8(b) (2d ed.1999) (footnote

omitted); see also United States v. Neff , 300 F.3d 1217, 1222 (10th Cir. 2002)

(“In measuring the actions of a police officer under the Fourth Amendment, . . .

we look at the objective facts, not the officer’s state of mind.”).

When the officers first intercepted Mr. Lewis’s truck, they needed only

sufficient cause to make an investigative detention. “A seizure by means of an

investigative detention is constitutional only if supported by a reasonable and

articulable suspicion that the person seized is engaged in criminal activity.”

Davis , 94 F.3d at 1468 (internal quotation marks omitted). “While an

investigative detention does not require probable cause, it does demand something

more than an inchoate and unparticularized suspicion or hunch.” Id. (internal

quotation marks omitted).

Here, the officers clearly had a “reasonable and articulable suspicion,” that

Mr. Lewis was engaged in criminal activity. A confidential informant provided

information that Mr. Lewis and Ms. Hulls were buying over-the-counter

decongestant tablets containing pseudoephedrine at a local convenience store and

that Ms. Hulls was manufacturing methamphetamine at her residence with

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Mr. Lewis. When confronted, the convenience store manager had admitted that

she had assisted the pair by ordering extra pseudoephedrine for them for eight

weeks and that Mr. Lewis and Ms. Hulls were using the pseudoephedrine to

manufacture methamphetamine. The officers had also watched Mr. Lewis arrive

at the convenience store, enter, and then exit with a white plastic bag, and the

manager had notified Officer Miller by cell phone that Mr. Lewis had “purchased

a lot of pseudoephedrine tablets.” Aplt. App., Vol. 1, Doc. 7, Attach. A at 3.

The officers clearly had “something more than an inchoate and unparticularized

suspicion or hunch” that Mr. Lewis both possessed the pseudoephedrine tablets

and intended to use them to manufacture methamphetamine.

“The government [does have] the burden of demonstrating that the seizure

it seeks to justify on the basis of a reasonable suspicion was sufficiently limited

in scope and duration to satisfy the conditions of an investigative seizure.”

United States v. Shareef , 100 F.3d 1491, 1500 (10th Cir. 1996) (internal quotation

marks omitted). Here, however, the only “detention” that has to be justified

solel y on the information received from the informant and the store manager was

the officer’s initial attempt to stop the vehicle.

Mr. Kilgore argues that it was not illegal for Mr. Lewis to purchase the

decongestant tablets in the quantity he did and that the officers, therefore, could

not stop Mr. Lewis’s truck. First, this is not a situation where a store clerk called

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the police after a stranger purchased a large amount of cold pills. Here the store

manager had been ordering extra tablets for eight weeks for the purpose of

assisting Mr. Lewis and Ms. Hulls in manufacturing methamphetamine. Second,

the legality of a particular act is not dispositive. “[I]nnocent behavior frequently

will provide the basis for a showing of probable cause,” Illinois v. Gates ,

462 U.S. 213, 244 n.13 (1983), and, a fortiori, for a showing of reasonable

suspicion. “[T]he relevant inquiry is not whether particular conduct is ‘innocent’

or ‘guilty,’ but the degree of suspicion that attaches to particular types of

noncriminal acts.” Id.; see also United States v. Arvizu , 534 U.S. 266, 277 (2002)

(“A determination that reasonable suspicion exists, however, need not rule out the

possibility of innocent conduct.”).

2. The Search of Mr. Lewis’s Truck

The officers’ search of Mr. Lewis’s truck also did not violate the Fourth

Amendment. When the officers apprehended Mr. Lewis, they had probable cause

to arrest him, which would also require them to impound his truck. Officer Miller

conducted an inventory search of the vehicle after he called for a tow truck to

come and get the truck for impound. This was entirely proper.

It is common practice for the police to conduct an inventory of the
contents of vehicles they have taken into their custody or are about to
impound. Such inventories are now a well-defined exception to the
warrant requirement of the Fourth Amendment. They are not treated
as investigative searches because they serve three administrative
purposes: the protection of the owner’s property while it remains in

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 police custody, the protection of the police against claims or disputes
over lost or stolen property, and the protection of the police from
potential danger.

United States v. Tueller , 349 F.3d 1239, 1243 (10th Cir. 2003) (internal quotation

marks and citations omitted).

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 3. The Arrest of Mr. Kilgore

As discussed above, after Officer Miller shot out the front tire of

Mr. Lewis’s truck, Mr. Lewis attempted to escape on foot. Mr. Kilgore, on the

other hand, did not attempt to exit the truck. Officer Miller “asked . . .

[Mr.] Kilgore . . . to get out of [Mr. Lewis’s truck] and get in [Officer Miller’s]

vehicle, so that [Officer Miller] could assist [Chief] Crittenden in locating

[Mr.] Lewis.” Aplt. App., Vol. 1, Doc. 7, Attach. A at 4. It is unclear whether

Mr. Kilgore was actually placed in Officer Miller’s vehicle, because Chief

Crittenden “[a]lmost immediately” informed Officer Miller that he had caught

Mr. Lewis and was returning to the convenience store. Id. Mr. Lewis and

Mr. Kilgore were eventually handcuffed and placed in the police car of another

officer who had arrived at the scene. Mr. Kilgore maintains that he was

handcuffed and placed in the police car prior to the officers’ search of the truck

and discovery of the eleven boxes of decongestant tablets and the used and

unused needles and syringes.

Because Officer Miller received the phone call from the store manager

telling him that Mr. Lewis had purchase pseudoephedrine at “approximately

sometime after 10:00 a.m,” id. at 3, and because Officer Miller requested a

wrecker service to impound Mr. Lewis’s truck and began the inventory search at

“approximately 10:39 a.m,” id. at 4, it is reasonable to assume that the most time

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Mr. Kilgore spent handcuffed in the back of the police car prior to the search was

approximately twenty to thirty minutes.

“If a police-citizen encounter exceeds the limits of a Terry stop, the

detention becomes an arrest that must be supported by probable cause.” Neff ,

300 F.3d at 1220. “The allowable scope of an investigative detention cannot be

determined by reference to a bright-line rule; common sense and ordinary human

experience must govern over rigid criteria. Moreover, we should not engage in

unrealistic second-guessing of a police officer’s decision.” Id. (quotation

omitted). Here the detention prior to the search of Mr. Lewis’s truck was not

onerous enough to exceed the limits of an investigatory detention and become an

arrest.

Our decision in Neff is instructive. There, the police received a report that

the defendant was intoxicated and was walking down the street carrying a

concealed weapon. The police located the defendant and asked him to stop. The

defendant ignored their request and, when he reached for his chest or waist, the

police officers drew their weapons and ordered him to drop to the ground. The

police frisked and handcuffed the defendant and found shotgun shells in his jacket

but no shotgun. After a period of questioning, the defendant directed the officers

to a sawed-off shotgun in the cab of a truck that he had walked past a few minutes

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earlier. Id. at 1219. Defendant claimed that the police had arrested him without

probable cause prior to finding the shotgun. This court held:

a Terry stop does not become unreasonable just because police
officers use handcuffs on a subject or place him on the ground.
Further, the use of guns in connection with a stop is permissible
where the police reasonably believe the weapons are necessary for
their protection. Since police officers should not be required to take
unnecessary risks in performing their duties, they are authorized to
take such steps as [are] reasonably necessary to protect their personal
safety and to maintain the status quo during the course of [a Terry ]
stop.

Id. at 1220 (citations and internal quotation marks omitted; alterations in

original).

Our decision in United States v. Shareef , 100 F.3d 1491 (10th Cir. 1996), is

similarly instructive. Three vehicles traveling together were stopped for speeding.

When the officer radioed the drivers’ identifying information to the dispatcher, he

was informed that one of the drivers, Smith, was wanted on a weapons charge in

another state and was considered armed and dangerous. Upon receiving this

information, the officer, with the help of backup, had each of the six occupants of

the three cars exit the vehicles one at a time, and the occupants were frisked,

handcuffed, and made to kneel on the pavement, while the officers pointed their

guns at them. About an hour after receiving the initial information, the officers

learned that Smith was not in fact a wanted felon. All but one of the occupants

remained handcuffed the entire time despite the fact that they had been frisked

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and the officers knew they were not armed. Id. at 1496-99. This court found that,

although it was a close question, the use of handcuffs was reasonable and did not

transform the detention into an unlawful arrest so long as the officers had a

reasonable suspicion that Smith was a wanted felon. Id. at 1507.

This case is not as close as Shareef . Mr. Kilgore was with Mr. Lewis when

Mr. Lewis purchased a large quantity of pseudoephedrine and then tried to run

over a police officer who was trying to stop Mr. Lewis’s truck. For the officers’

safety, Officer Miller fired his weapon to disable the vehicle. Mr. Kilgore could

have been an innocent passenger or he could have been an accomplice as

desperate to escape as Mr. Lewis. In this situation, it was entirely reasonable for

the officers handcuff to both Mr. Kilgore and Mr. Lewis and place them in the

back of a police car while conducting their investigation.

It is clear, however, that Mr. Kilgore was arrested after the inventory

search of the vehicle. Mr. Kilgore alleges that the evidence found during the

search does not constitute probable cause for such an arrest. “To determine

whether an officer had probable cause to arrest an individual, we examine the

events leading up to the arrest, and then decide whether these historical facts,

viewed from the standpoint of an objectively reasonable police officer, amount to

probable cause.” Pringle , 540 U.S. at 371 (internal quotation marks omitted).

The Supreme Court further stated in Pringle that “[t]he probable-cause standard is

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incapable of precise definition or quantification into percentages because it deals

with probabilities and depends on the totality of the circumstances.” Id.

In Pringle , the defendant was one of three men arrested riding in a car at

3:16 a.m. The officers found $763 in cash in the glove compartment and five

baggies of cocaine behind the back-seat armrest. The defendant was riding in the

front passenger seat. The men offered no information as to the ownership of the

drugs or money and all three were arrested. Id. at 365-69. The Supreme Court

found that probable cause existed for the arrest. The Court noted that

[the defendant] and his two companions were in a relatively small
automobile . . . [and] that a car passenger . . . will often be engaged
in a common enterprise with the driver, and have the same interest in
concealing the fruits or the evidence of their wrongdoing. Here we
think it was reasonable for the officer to infer a common enterprise
among the three men. The quantity of drugs and cash in the car
indicated the likelihood of drug dealing, an enterprise to which a
dealer would be unlikely to admit an innocent person with the
potential to furnish evidence against him.

Id. at 373 (quotation omitted). The Court held:

We think it an entirely reasonable inference from these facts that any
or all three of the occupants had knowledge of, and exercised
dominion and control over, the cocaine. Thus a reasonable officer
could conclude that there was probable cause to believe [the
defendant] committed the crime of possession of cocaine, either
solely or jointly.

Id. at 372.

Here, Mr. Kilgore was in the passenger seat of Mr. Lewis’s truck. The

officers had information that Mr. Lewis was involved in the manufacture of

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methamphetamine, they had watched Mr. Lewis exit the convenience store with a

plastic bag that the manager had informed them by phone contained a large

quantity of pseudoephedrine, Mr. Lewis had attempted to escape when he saw the

officers pull up, the officers had found a case containing a large quantity of

syringes and needles, including one used needle and syringe, on the floor board of

the front passenger seat where Mr. Kilgore was seated, and the bag with the

eleven boxes of decongestant tablets was found in the middle of the back seat

“within [Mr.] Kilgore’s reach.” Aplt. App., Vol. 1, Doc. 7, Attach. A at 1-5.

“The term “probable cause,” according to it usual acceptation, means less than

evidence which would justify condemnation. It imports a seizure made under

circumstances which warrant suspicion.” Pringle , 540 U.S. at 371 (internal

quotation marks and alterations omitted). From the above, a reasonable officer

could conclude that there was probable cause to believe that Mr. Kilgore had

committed any of the offenses previously mentioned. 1

B. State Law Claims

The district court found that Mr. Kilgore had also brought claims against

the City under section 153 of Title 51 of the Oklahoma Statutes. Subsection A of

that section provides that political subdivisions are liable for the tort of an

1
Because we find that there was no constitutional violation, we need not
address the district court’s determination regarding qualified immunity.

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employee acting within the scope of his or her employment to the extent a private

person would be liable.

Mr. Kilgore alleged that because the officers did not act with proper cause,

they committed the torts of trespass upon the person, false arrest, and assault and

battery. As the district court held, no trespass upon the person or false arrest

occurred because the officers had sufficient cause to detain Mr. Kilgore in the

manner that they did. Further, no assault or battery occurred because Officer

Miller clearly had sufficient justification to shoot the front tire of the truck after

Mr. Lewis tried to run him over and to handcuff Mr. Kilgore until it was

determined what role he played in the matter.

III. Conclusion

For the reasons set forth above, the judgment of the district court is

AFFIRMED.

Entered for the Court

Timothy M. Tymkovich
Circuit Judge

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