U.S. v. City of Des Moines

• Decision Date: 17 November 1999
• Docket Number: No. 99-1423,99-1423
• Citation: 201 F.3d 1050
• Parties: (8th Cir. 2000) ELMER PACE AND LINDA PACE, APPELLEES, V. CITY OF DES MOINES, IOWA, DEFENDANT, AND BRIAN DANNER, APPELLANT Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1050

201 F.3d 1050 (8th Cir. 2000)

ELMER PACE AND LINDA PACE, APPELLEES,

V.

CITY OF DES MOINES, IOWA, DEFENDANT,

AND

BRIAN DANNER, APPELLANT

No. 99-1423

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: November 17, 1999

Filed: January 13, 2000

[Copyrighted Material Omitted] Before McMILLIAN, Fagg, and Morris Sheppard Arnold, Circuit Judges.

Morris Sheppard Arnold, Circuit Judge

Elmer and Linda Pace brought an action against Officer Brian Danner and the City of Des Moines seeking damages under 42 U.S.C. § 1983 for various acts arising out of a criminal investigation of Mr. Pace conducted by Officer Danner. Officer Danner now seeks a reversal of the district court's denial of his motion for summary judgment on the ground of qualified immunity on four of the Paces' claims. We affirm in part and reverse in part.

I.

Summary judgment is proper when the record, viewed in the light most favorable to the nonmoving party and giving that party the benefit of all reasonable inferences, shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). We review a district court's denial of summary judgment de novo. Collins v. Bellinghausen, 153 F.3d 591, 595 (8th Cir. 1998). Ordinarily, a denial of summary judgment is not a "final" decision and is therefore not immediately appealable. See 28 U.S.C. § 1291. A denial of summary judgment on the grounds of qualified immunity, however, may be reviewed on interlocutory appeal when the issue presented "is a purely legal one: whether the facts alleged ... support a claim of violation of clearly established law." Mitchell v. Forsyth, 472 U.S. 511, 528 n.9, 105 S. Ct. 2806, 2817 n.9, 86 L. Ed. 2d 411 (1985).

Qualified immunity shields Officer Danner from suit if "a reasonable officer could have believed [his actions] to be lawful, in light of clearly established law and the information [that he] possessed." Anderson v. Creighton, 483 U.S. 635, 641, 107 S. Ct. 3034, 3040, 97 L. Ed. 2d 523 (1987). "The qualified immunity standard 'gives ample room for mistaken judgments' by protecting 'all but the plainly incompetent or those who knowingly violate the law.' " Hunter v. Bryant, 502 U.S. 224, 229, 112 S. Ct. 534, 537, 116 L. Ed. 2d 589 (1991) (per curiam), quoting Malley v. Briggs, 475 U.S. 335, 343, 341, 106 S. Ct. 1092, 1097, 1096, 89 L. Ed. 2d 271 (1986).

In this case, the events in question were precipitated by a report that the Des Moines police received from a woman who claimed to have been attacked by a man with a knife. Based on the victim's description of her assailant, the Des Moines police department suspected Mr. Pace. Officer Danner proceeded to the house where Mr. Pace and his wife maintained both a business and a residence. Officer Danner entered the house through the customer entrance, flashed his firearm, told Mr. Pace to step outside, and pushed Mr. Pace against a wall. Officer Danner then ordered Mr. Pace to remove his shirt so that he could photograph the tattoo on Mr. Pace's chest, and Mr. Pace complied. Mr. Pace asserts that this incident constituted an unlawful search and seizure, as Officer Danner lacked probable cause and failed to obtain a warrant prior to seizing and photographing Mr. Pace.

Officer Danner makes several arguments supporting his motion for summary judgment on this issue. First, he argues that Mr. Pace consented to the search, and therefore that a reasonable police officer clearly could have believed that the search of Mr. Pace was lawful. Mr. Pace disputes this version of the events, however, and contends that he removed his shirt only after Officer Danner ordered him to do so. At the heart of this argument is a dispute of fact -- whether or not Mr. Pace consented to the search. The argument does not, therefore, present a "purely legal issue," and may not be considered by us on interlocutory appeal. See Johnson v. Jones, 515 U.S. 304, 313, 115 S. Ct. 2151, 2156, 132 L. Ed. 2d 238 (1995).

Officer Danner also maintains that detaining and photographing Mr. Pace without his consent was permissible under the fourth amendment. As the Supreme Court stated in United States v. Dionisio, 410 U.S. 1, 8, 93 S. Ct. 764, 769, 35 L. Ed. 2d 67 (1973), "the obtaining of physical evidence from a person involves a potential Fourth Amendment violation at two different levels -- the 'seizure' of the 'person' necessary to bring him into contact with government agents ... and the subsequent search for and seizure of the evidence."

Officer Danner addresses the detention question with the assertion that he had a reasonable suspicion that Mr. Pace was the assailant, entitling him to detain Mr. Pace briefly for an investigative stop. Officer Danner then contends that his subsequent order for the removal of Mr. Pace's shirt was legitimate because Mr. Pace did not have a reasonable expectation of privacy for his upper body. Officer Danner notes that on "two or three" other occasions another officer had seen Mr. Pace in public wearing tank top shirts that partly revealed the tattoo on Mr. Pace's chest, and yet another officer claimed to have seen Mr. Pace wearing tank top shirts "numerous" times over the past several years. Officer Danner suggests that given this behavior, Mr. Pace could not reasonably expect that the surface of his upper body, and in particular his tattoo, could be kept private.

We assume, arguendo, that Officer Danner had sufficient reasonable suspicion to detain Mr. Pace, and that the detention occurred in a public place (and not in Mr. Pace's residence). We still reach the conclusion that Officer Danner's actions were contrary to the fourth amendment, and that no reasonable officer could have believed otherwise in light of clearly established law.

We are aware that "the Fourth Amendment provides no protection for what 'a person knowingly exposes to the public, even in his own home or office.' " Dionisio, 410 U.S. at 14, 93 S. Ct. at 771, quoting Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 511, 19 L. Ed. 2d 576 (1967). Courts applying this principle have suggested that the protection of the fourth amendment may be wholly denied to voices, faces, and fingerprints. See Dionisio, 410 U.S. at 14, 93 S. Ct. at 771 (voice exemplar); Application of Rodgers, 359 F. Supp. 576, 577-78 (E.D. N.Y. 1973) (photograph of face); and Hayes v. Florida, 470 U.S. 811, 816-17, 105 S. Ct. 1643, 1647, 84 L. Ed. 2d 705 (1985) (fingerprints).

We think, however, that the analogy that Officer Danner seeks to draw between the state action in those cases and his conduct in this one is untenable. There is a legally relevant distinction between the daily revelations of one's voice face, and fingerprints that are an inevitable part of living in an interactive world, on the one hand, and the occasional use of a tank top on the other. Although it is perhaps possible to imagine a person who so consistently bares himself or herself from the waist up that all reasonable expectations of privacy for that area are lost, wearing a tank top "two or three" times (or even "numerous" times) is surely not enough to produce so drastic a result. Were we to find otherwise, regular visitors to public beaches and swimming pools would be surprised to discover that their visits have cost them the lasting loss of a reasonable expectation of privacy over very substantial portions of their bodies. We do not believe that any reasonable interpretation of Dionisio and its progeny could lead to such a conclusion.

We also disagree with Officer Danner's second contention, namely, that a reasonable officer could have believed that the photographing was within the permissible limits of an investigative stop. We recognize that an officer who has a reasonable suspicion that crime is afoot, but not probable cause to arrest a person, may conduct an investigative stop, and that this may include questioning and other efforts to identify the person in question. See United States v. Johnson, 64 F.3d 1120, 1124 (8th Cir. 1995), cert. denied, 516 U.S. 1139 (1996), and United States v. Jones, 759 F.2d 633, 642 (8th Cir. 1985), cert. denied, 474 U.S. 837 (1985).

If a stop lasts too long, however, or if it is too intrusive, "then the stop is converted into an arrest." United States v. Dixon, 51 F.3d 1376, 1380 (8th Cir. 1995). In determining whether an officer's conduct goes beyond what is permissible in an investigative stop, we are bound to consider " 'the degree of fear and humiliation that the police conduct engenders.' " United States v. Bloomfield, 40 F.3d 910, 917 (8th Cir. 1994) (en banc), cert. denied, 514 U.S. 1113 (1995), quoting United States v. Lego, 855 F.2d 542, 545 (8th Cir. 1988); see also United States v. Hill, 91 F.3d 1064, 1070 (8th Cir. 1996). In this case, although it may be true that Officer Danner photographed Mr. Pace as quickly as possible, we believe that Officer Danner's actions were too intrusive to be considered merely part of an investigative stop rather than a search fully implicating Mr. Pace's fourth amendment rights. It is apparent to us that being ordered to go outside and to take off one's shirt so that a police officer can take pictures involves much more fear and humiliation than simply being asked questions or being compelled to identify oneself.

We believe that a reasonable officer cognizant of clearly established law would realize that such an imposition requires a warrant, something that Officer Danner did not obtain. In these circumstances, therefore, we do not believe that Officer Danner is entitled to qualified immunity for the photographing incident.

II.

After obtaining a photograph of Mr. Pace's tattoo, Officer Danner conducted an interview with the victim of the assault. He showed the victim a photo lineup of the faces of six men and asked if she could identify her assailant. The victim was able to rule out four of the six prospects, but...