United States Court of Appeals, Eleventh Circuit.
No. 95-6356.
John Thomas RILEY, Jr., Plaintiff-Appellant,
v.
The CITY OF MONTGOMERY, ALABAMA, a municipal corporation, Frank
F. Bertarelli, B.H. Davis, Jerome M. Wooten, Michael G. Jones, et
al., Defendants-Appellees.
Jan. 30, 1997.
Appeal from the United States District Court for the Middle
District of Alabama. (No. CV-92-A-1340-N), W. Harold Albritton,
III, Judge.
Before EDMONDSON, Circuit Judge, FAY, Senior Circuit Judge, and
ALDRICH*, Senior District Judge.
EDMONDSON, Circuit Judge:
Plaintiff appeals the district court's grant of summary
judgment for Defendants on his Section 1983 and state law malicious
prosecution claims based on alleged Fourth Amendment violations and
on the resulting criminal convictions. We affirm the district
court's ruling on the constitutional validity of the two stop and
searches at issue but vacate its ruling on allegations that one of
the Defendants—contrary to the Constitution—planted evidence.
I.
This action arises from two stop and searches that resulted in
police finding cocaine and, later, in convictions of Plaintiff for
drug charges. After an investigation into corruption within the
pertinent narcotics unit, the government dismissed charges against
Plaintiff; and he filed this action alleging a violation of his
constitutional rights and malicious prosecution.
*
Honorable Ann Aldrich, Senior U.S. District Judge for the
Northern District of Ohio, sitting by designation.
A. 19 May 1989
On 19 May 1989, Montgomery Police Department ("MPD") Officers
Davis and Bertarelli stopped Plaintiff John Riley, Jr. while
Plaintiff was driving an automobile they had under surveillance.
After conducting a pat-down, Davis asked Plaintiff if he had a gun.
Plaintiff indicated that he had one in the car. Another officer
then retrieved a .357 Magnum pistol from inside Plaintiff's car and
found a cloth bag containing cocaine. As a consequence, Plaintiff
was later convicted on federal charges of possession of cocaine
with intent to distribute and of possession of a firearm during a
drug transaction.
According to Defendants, Bertarelli received an anonymous
phone call indicating that a young, black male named Riley was
dealing cocaine out of a beige, four-door Hyundai at the corner of
French and Decatur Streets and that he was armed with a .357
Magnum. Bertarelli relayed the information to the other officers
present. Davis said that he had received similar information from
a confidential informant. The Davis informant (hereinafter "Mr.
B")1 had said that, while conducting a controlled buy for Davis, he
observed a man leaving the drug house with cocaine, commenting on
its quality. Mr. B saw the man get into a Hyundai; Mr. B took
down the license number and gave it to Davis. Several officers
then went to the specified intersection and found a beige four-door
Hyundai with the license number Mr. B had given Davis. According
to Plaintiff, the police officers fabricated both of the tips.
1
The informant was identified as "N-766" in MPD records and
as "Mr. B" by the district court for purposes of the present
action.
B. 20 July 1989
On 20 July 1989, Officers Jones and Wooten passed Plaintiff
and another man in a car going the other way. Jones and Wooten
turned their car around and began following Plaintiff. According
to Defendants, Wooten had received a tip that Plaintiff was in a
blue and white Buick Electra 225 (the car Jones and Wooten found
him driving) and was transporting cocaine. Plaintiff says Wooten
falsified the tip.
Though the officers were driving an unmarked car, Plaintiff
recognized them. According to Plaintiff, his passenger then told
him that the passenger had drugs in the car. Plaintiff sped up,
going approximately 60 miles an hour in a residential area.
Plaintiff kept speeding around the block until, according to him,
all of the drugs had been thrown out of the car.
After stopping Plaintiff and his passenger, the officers
placed them against the car's trunk and conducted a pat-down.
Jones then conducted what he characterizes as a "quick gun sweep"
of the front seat area. After finding nothing, Jones went to look
for some of the objects thrown out of the car. At this point,
Wooten searched the car and claims to have found a bag of cocaine
between the door and the driver's seat. Plaintiff says that Wooten
planted the cocaine. Based on the cocaine found in the car,
Plaintiff was charged, in federal court, with possession of cocaine
and convicted of aiding and abetting after the fact.2
2
Jones's search of the side of the road resulted in the
seizure of cocaine that had been thrown out of the car window.
This evidence, however, was not used in Plaintiff's criminal
conviction.
C. Dismissal of Charges Against Plaintiff
In December 1989, the MPD chief asked that the state begin an
investigation into the MPD Narcotics and Intelligence Unit. That
investigation uncovered evidence of extensive abuse involving the
fund used to pay confidential informants for tips, including
falsifying the identity of informants. The investigation
discovered that police officers had recorded informant money as
being transferred to non-existent informants, presumably pocketing
the money themselves.
In August 1992, a magistrate judge recommended granting
Plaintiff a new trial on both of his earlier federal convictions.
The magistrate judge concluded for the 20 July search that, "[h]ad
the information which this Court now possesses about Wooten, i.e.,
that he routinely falsified records and may well have lied about
the existence of a confidential informant, been presented to the
trial judge and jury, it is highly unlikely that the defendant
would have been convicted." (Recommendation, pp. 14-15.)3 Later,
the district court granted the United States Attorney's motion to
dismiss the indictments.
D. Procedural History of this Case
Plaintiff filed the present complaint against the four
officers involved in the two incidents (collectively "Police
Defendants") alleging, among other things, violations of 42 U.S.C.
§ 1983 and malicious prosecution under Alabama law. Plaintiff also
3
The magistrate judge recommended a new trial for Plaintiff
for the conviction arising out of the 19 May incident because
Wooten had testified at that trial on Plaintiff's pattern of
involvement with drugs.
named the City of Montgomery and the commander of the Narcotics and
Intelligence Unit, the police chief, and—in an amended
complaint—the mayor, in both their official and individual
capacities (collectively "City Defendants") under Section 1983.
The district court dismissed Plaintiff's claims against City
Defendants in their individual capacities early in the litigation.
Later, the district court granted summary judgment to all
Defendants on all counts, except the malicious prosecution claim
against Wooten based on Plaintiff's claim that Wooten planted the
cocaine. The district court also entered judgment pursuant to
Fed.R.Civ.P. 54(b), and Plaintiff appealed.
II.
A warrantless weapons search of a suspect and his car,
pursuant to a limited detention, does not violate the Fourth
Amendment if the police have reasonable articulable suspicion to
justify such a limited detention. Michigan v. Long, 463 U.S. 1032,
1049-52, 103 S.Ct. 3469, 3481-82, 77 L.Ed.2d 1201 (1983); Terry v.
Ohio, 392 U.S. 1, 26-28, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889
(1968). A Terry stop can also be used to investigate those
suspected of being in the commission of a crime. Adams v.
Williams, 407 U.S. 143, 145-49, 92 S.Ct. 1921, 1923-24, 32 L.Ed.2d
612 (1972) (drugs and concealed weapon). Pursuant to a Terry stop,
the police are entitled to search the passenger compartment of the
detainee's vehicle for weapons. Michigan v. Long, 463 U.S. 1032,
1051-52, 103 S.Ct. 3469, 3482, 77 L.Ed.2d 1201 (1983).
As both of the encounters here were, at the pertinent time,
limited detentions, the relevant question is whether the police had
"reasonable suspicion" in detaining Plaintiff. Plaintiff argues
that Terry stops, to be proper, must follow chance encounters
between the police and the suspect. Plaintiff has pointed us to no
authority, however, to support his unique view that there is such
a "chance encounter" requirement; and we are aware of nothing to
support the idea. We thus look to the two stop and searches and
determine whether the officers involved had "reasonable suspicion"
and whether the scope of the weapons searches attendant to the
stops exceeded the permissible scope.
A. The 19 May Stop and Search
Plaintiff contends (1) that Mr. B's deposition establishes a
triable issue of material fact on whether Davis lied about getting
a tip and (2) that the tips, if given, were unreliable. As the
district court noted, however, Plaintiff presented no evidence to
contradict Bertarelli's testimony about his anonymous tip. About
the Davis tip, even assuming we were to consider Mr. B's deposition
(which is not properly before us),4 any "conflicts in the evidence"
concern only minor discrepancies in the details provided by Davis
and Mr. B—such as whether Mr. B knew the person to whom Plaintiff
was delivering cocaine—and do not support a reasonable inference
4
Defendants have moved to strike those portions of
Plaintiff's brief which refer to evidence, including Mr. B's
deposition, that was submitted to the district court after it had
granted Defendants's motions for summary judgment and,
accordingly, was stricken by the district court as untimely. We
grant Defendants' motion for those portions of Plaintiff's brief
which refer to "evidence" that is not in the record. See
Diversified Numismatics v. City of Orlando, Fl., 949 F.2d 382,
384 (11th Cir.1991) ("[A]ppellants should not have referenced
material not in the record, and we will not consider any
non-record evidence or arguments based upon non-record
evidence."); F.R.A.P. 28(a)(4) (statements of fact must refer to
record).
that Davis and Mr. B fabricated the entire story.
In addition, Plaintiff's theory of the incident is inherently
incredible and could not support reasonable inferences sufficient
to create an issue of fact. No evidence shows that the MPD had
contact with Plaintiff before the incident or had reason to go to
the pertinent location or to stop Plaintiff's car absent a tip.
From this record, no reason exists to believe that, before 19 May,
any member of the MPD Narcotics and Intelligence Unit even knew who
Plaintiff was.
As for the reliability of the tips, under Alabama v. White,
496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 307 (1990), an anonymous
tip, corroborated by independent police work, can be sufficient to
constitute reasonable articulable suspicion. In White, a police
officer received an anonymous tip that Vanessa White would be
leaving a particular apartment in a brown Plymouth station wagon
with a broken tail light and transporting cocaine, in a brown
attache case, to a particular motel. The officer and his partner
watched the location and observed a brown Plymouth station wagon
with a broken tail light in the parking lot. White entered the
car, empty-handed, and started to drive the most direct route to
the motel before she was stopped by a patrol car. The White Court
noted that "not every detail mentioned by the tipster was verified,
such as the name of the woman or the precise apartment from which
she left." Id. at 331, 110 S.Ct. at 2416. The police did,
however, confirm that the woman left the particular building, got
into the described vehicle and drove in the most direct route to
the motel. So, the Court held that, under the "totality of the
circumstances," this anonymous tip, partially corroborated by
independent police work, was sufficient to constitute "reasonable
suspicion." Id.
In the present case, Bertarelli's anonymous tip, corroborated
both by a tip from one of his partner's confidential informants
(Mr. B) and by independent police work, shows even greater indicia
of reliability and gave Bertarelli and Davis an even greater basis
for "reasonable suspicion." The anonymous tipster indicated that
Plaintiff was transporting cocaine. After a 45-minute stakeout of
the exact location provided by this informant, Plaintiff, a young,
black male named Riley, entered a vehicle matching the informant's
description. Davis' confirming tip also gave the exact license
plate number of the vehicle Plaintiff was driving. In the light of
the totality of the circumstances, independent police work
corroborated both the anonymous tip Bertarelli received and the
confirming tip from Davis' informant and provided ample basis for
"reasonable suspicion."
B. The 20 July Stop and Search
Disregarding evidence of Wooten's tip, the district court
found and concluded that the undisputed facts about the 20 July
encounter established reasonable suspicion in that (1) Plaintiff
accelerated well past the speed limit when he spotted the officers
and (2) the officers observed the passenger throwing items out of
the window and were aware of the recent arrest in which Plaintiff
had been found with cocaine and a handgun.
Plaintiff argues that (1) the stop was "pretextual" and (2)
the second search of the car, by Wooten, was impermissible.
Plaintiff refers to the deposition of Wooten (in which he states
that he and Jones would not have stopped Plaintiff but for the tip
Wooten received) and claims the officers decided to stop Plaintiff
well before they saw him speeding, that is, the stop was
pretextual.
Mere surveillance or pursuit is no "seizure"; and the
relevant inquiry is whether, at the time the police pulled
Plaintiff over, the stop and search violated the Fourth Amendment.
See Brower v. County of Inyo, 489 U.S. 593, 595-97, 109 S.Ct. 1378,
1381, 103 L.Ed.2d 628 (1989) ("Violation of the Fourth Amendment
requires an intentional acquisition of physical control.").
In this circuit, we have historically held that the standard
for determining if a traffic stop was "pretextual" is whether "a
reasonable officer would have made the seizure in absence of
"illegitimate motivation.' " See United States v. Smith, 799 F.2d
704, 708 (1986) (emphasis in original). But, in Whren v. United
States, --- U.S. ----, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), the
Supreme Court rejected our former approach and held that the
constitutional "reasonableness" of a traffic stop is determined
irrespective of "intent," either of the individual officer
involved, id. at ---- - ----, 116 S.Ct. at 1773-1774, or any
theoretical "reasonable officer" (or, as the Court termed it,
"virtual subjectivity"). Id. at ---- - ----, 116 S.Ct. at 1774-
1776. The only question is whether the suspect's behavior gave
rise to probable cause sufficient to justify the seizure. Id. at
----, 116 S.Ct. at 1775 ("[T]he Fourth Amendment's concern with
"reasonableness' allows certain actions to be taken in certain
circumstances, whatever the subjective intent.") (emphasis in
original).
In Whren, the Court held that the police had probable cause
to pull over the suspect where he violated the traffic laws in this
way:
When the police car executed a U-turn in order to head
back toward the truck, the Pathfinder turned suddenly to its
right, without signalling, and sped off at an "unreasonable"
speed. The police followed, and in a short while overtook the
Pathfinder when it stopped behind other traffic at a red
light.
Id. at ----, 116 S.Ct. at 1772. The present circumstance is more
compelling in that (1) Plaintiff was already known to the police as
a drug dealer who had a history of carrying a gun and (2) his
passenger was throwing things (then thought to be, later shown to
be, drugs) out of the window of the car as they sped through a
residential neighborhood at approximately 60 miles an hour. See
also United States v. Strickland, 902 F.2d 937, 940 (11th Cir.1990)
("[A] police officer may stop a vehicle "[w]hen there is ...
probable cause to believe that a driver is violating any one of a
multitude of applicable traffic and equipment regulations' relating
to the operation of motor vehicles.") (quoting Delaware v. Prouse,
440 U.S. 648, 655-57, 99 S.Ct. 1391, 1397, 59 L.Ed.2d 660 (1979)).
About Wooten's search, there can be no doubt that a weapon
could have been hidden where Wooten looked and seemingly found not
a gun, but cocaine: between the door and the driver's seat. See
Michigan v. Long, 463 U.S. 1032, 1051-52, 103 S.Ct. 3469, 3482, 77
L.Ed.2d 1201 (1983). That both Plaintiff and his passenger had
been removed from the car and were in the officer's custody is
inconsequential. Id. ("[I]f the suspect is not placed under
arrest, he will be permitted to reenter his automobile, and he will
then have access to any weapons inside.")5 In addition, a vehicle
search pursuant to Michigan v. Long is not constitutionally infirm
just because it involves a second officer conducting a second
search. See United States v. Gleason, 25 F.3d 605, 608 (8th Cir.)
(second weapons search by officer within permissible scope of
search incident to an investigative stop), cert. denied, --- U.S.
----, 115 S.Ct. 283, 130 L.Ed.2d 199 (1994).
As is noted above, the district court concluded that a
genuine issue of fact exists about whether Wooten actually found
the cocaine in the car; and, therefore, the district court denied
Wooten's motion for summary judgment on Plaintiff's state law
malicious prosecution claims. If the jury were to find that Wooten
planted the cocaine, this planting of false evidence could
constitute a violation of Plaintiff's rights under the Federal
Constitution and, accordingly, could give rise to liability under
Section 1983. See e.g. Napue v. Illinois, 360 U.S. 264, 268-70, 79
S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959) (due process right to fair
trial); Whiting v. Traylor, 85 F.3d 581, 585 (11th Cir.1996)
(right to be free of unreasonable seizures); Schneider v. Estelle,
552 F.2d 593, 595 (5th Cir.1977) (due process right to fair trial).
It was well established in 1989 that fabricating incriminating
evidence violated constitutional rights. See, e.g., Schneider, 552
F.2d at 595 (police officer's manufacturing of evidence violates
5
The officers had taken custody of both Plaintiff and his
passenger and were conducting a search pursuant to a valid Terry
stop. No one argues that Plaintiff and his passenger were under
arrest at the time Wooten conducted his search.
due process right to fair trial regardless of prosecutor's
ignorance of the falsified evidence). Accordingly, Wooten is
entitled to no immunity for such claims. Thus, to the extent that
the district court granted Wooten summary judgment on Plaintiff's
Section 1983 claims based on the alleged planting of cocaine, the
district court was mistaken. We vacate the judgment on this point
for Wooten.
C. The Grant of Summary Judgment to City Defendants
Though the district court's opinion largely speaks in terms
of qualified immunity, the district court did conclude, in its
summary judgment order, that no constitutional violation—except
possibly for Wooten's planting of evidence—occurred at all as a
result of the two stop and searches.6 The district court was
right.
Plaintiff has advanced no theory under which City Defendants
could be held liable for Wooten's alleged planting of cocaine in
Plaintiff's car on 20 July. So, the district court correctly
granted summary judgment to City Defendants. See Menuel v. City of
Atlanta, 25 F.3d 990, 997 (11th Cir.1994) (dismissing action
against municipality for lack of underlying constitutional
6
For the 19 May incident, the district court held, at p. 57
of its Order, that "the May 19, 1989 investigative stop is
constitutional under White, and the subsequent search was
constitutional under Michigan v. Long, 463 U.S. at 1032 [103
S.Ct. at 3469]." For the 20 July incident, the district court
found and concluded that "Jones and Wooten had probable cause to
stop Riley [Plaintiff] on July 20, 1989," (Order, p. 58) and that
"Jones did not violate Riley's constitutional rights in
conducting the search," (Order, p. 59) and "Wooten had probable
cause to search Riley's car on July 20, 1989." (Order, p. 59.)
We do not reach the question of probable cause for Wooten's
search, but affirm the conclusion that the search was lawful.
violation).
D. Malicious Prosecution
The elements of a malicious prosecution under Alabama law are
(1) institution or continuation of a judicial proceeding, (2) by or
at the instance of the defendant, (3) favorable termination of
those proceedings, (4) malice, (5) lack of probable cause, (6)
injury or damage. Delchamps, Inc. v. Larry, 613 So.2d 1235, 1238
(Ala.1992). A grand jury indictment is prima facie evidence of
probable cause which can be overcome by showing that it was induced
by misconduct. Lumpkin v. Cofield, 536 So.2d 62, 64 (Ala.1988).
Given that reasonable suspicion existed for the two searches, the
district court correctly concluded that Plaintiff failed to present
evidence sufficient to create a triable issue of fact on
"misconduct" for Bertarelli, Davis and Jones. So, the "lack of
probable cause" element of the tort of malicious prosecution is
missing.
AFFIRMED in part, VACATED in part, and REMANDED.