337 F.3d 392 (4th Cir. 2003), 02-7880, Wilson v. Kittoe

Docket Nº:02-7880
Citation:337 F.3d 392
Party Name:Wilson v. Kittoe
Case Date:July 22, 2003
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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337 F.3d 392 (4th Cir. 2003)

Michael Thomas WILSON, Plaintiff-Appellee,


Barry A. KITTOE, Defendant-Appellant,


Anthony S. TOKACH, Defendant.

No. 02-7880.

United States Court of Appeals, Fourth Circuit

July 22, 2003.

Argued: June 3, 2003.

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[Copyrighted Material Omitted]

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Alexander Francuzenko, O'Connell, O'Connell & Sarsfield, Rockville, Maryland, for Appellant.

George Lynwood Freeman, Jr., Freeman & Berthelsen, Fairfax, Virginia, for Appellee.

Before MICHAEL, TRAXLER, and KING, Circuit Judges.

Affirmed by published opinion. Judge KING wrote the opinion, in which Judge MICHAEL and Judge TRAXLER joined.


KING, Circuit Judge:

This appeal arises from the April 1999 arrest of Michael Wilson outside of his home in Stephens City, Virginia. Wilson brought suit against the arresting officer and others, alleging, inter alia, a violation of his Fourth Amendment right against arrest in the absence of probable cause. The officer moved for summary judgment on grounds of qualified immunity, and the district court denied the motion. Wilson v. Kittoe, 229 F.Supp.2d 520, 538 (W.D.Va.2002). The officer has appealed and, for the reasons explained below, we affirm.


At about 3:45 a.m. on April 14, 1999, Barry Kittoe, a Deputy Sheriff with the Frederick County Sheriff's Department, responded to a call from a dispatcher alerting him that a vehicle was being driven

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erratically near Bel Haven Court in Stephens City, Virginia. When Kittoe arrived at the neighborhood in question, he observed from his police cruiser a vehicle being driven with its headlights turned off. Kittoe followed the vehicle into the driveway of 114 Farlawn Court.

Exiting his cruiser, Kittoe approached the driver's side of the suspect's vehicle and identified himself. The driver, later identified as Seth Woolever, was the vehicle's only occupant. When Woolever got out of the vehicle, Kittoe observed that he was having difficulty maintaining his balance and that he smelled strongly of alcohol. Woolever also had bloodshot eyes and his speech was slurred.

Meanwhile, Michael Wilson was awakened by what sounded like a car backfiring. After hearing the noise for the third time, Wilson got out of bed and looked out his bedroom window. He saw two cars pulling into the driveway of his next-door neighbors, the Woolevers, at 114 Farlawn Court. The second car idled in the driveway with its headlights on. Wilson dressed and went downstairs to investigate.

It was dark outside, so Wilson turned on his outside lights and walked out onto his driveway. From there, Wilson observed his neighbor's son, Seth Woolever, standing in the Woolever driveway in the custody of a police officer, who he later learned was Kittoe. Wilson believed that Woolever had already been placed in handcuffs, because Woolever's arms were down by his side. Wilson could tell that the officer was talking to Woolever, but the noise from the engine of the idling police cruiser, as well as the distance between Wilson's vantage point and the place where Woolever and the officer were standing (about fifty feet away, on the far side of the cruiser), made it difficult for Wilson to hear what was being said.


Wilson stood in his driveway for a minute or two before Kittoe noticed him. Kittoe asked Wilson who he was, and Wilson replied that he lived next door. Kittoe then inquired whether it was Wilson who had called in the complaint about an erratic driver. When Wilson said no, Kittoe told Wilson to "get out of here" as he was "interfering with [the] investigation."

Wilson did not respond to Kittoe ("The First Refusal to Obey"). Instead, without approaching, Wilson asked Woolever if he was "okay." Woolever replied that he "wasn't sure." Wilson then asked Woolever if Woolever wanted Wilson to represent him, as Wilson was an attorney and had represented the Woolever family on prior occasions. Woolever responded, "I'll be looking at needing the services of an attorney" and "I want you to represent me."


Still in his own driveway, Wilson once again addressed Kittoe, saying: "Officer, if you don't mind, when you finish doing whatever you're doing, I would like to speak with my client for a moment or two and give him one of my cards and I don't think he'll be wanting to answer any questions on advice of counsel." Kittoe responded that Wilson was interfering with his investigation, and he again told Wilson to leave. Wilson advised Kittoe that he would retrieve some identification from inside his house ("The Second Refusal to Obey"). Wilson then walked into his house, leaving the door open behind him.


When Wilson returned a minute or two later with his wallet and card case, he observed that another police officer, who he later learned was Officer Timothy

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Smedley, had arrived on the scene. Smedley had parked his cruiser in the street between Wilson's driveway and the Woolever driveway. Wilson proceeded down his driveway and approached Smedley, who was standing in the street next to his cruiser. Wilson neither approached nor spoke to Kittoe and Woolever, both of whom remained standing next to Kittoe's police cruiser in the Woolever driveway.

Wilson introduced himself to Smedley as a lawyer, and he handed Smedley one of his business cards. Wilson asked Smedley if he could speak to his client when the officers were finished with the arrest, but Smedley replied that he was just on the scene to assist, and that Kittoe was in charge. Wilson and Smedley then simply waited in the street next to Smedley's cruiser.


At this point, Kittoe left Woolever in handcuffs next to Kittoe's cruiser and walked down the Woolever driveway to where Wilson and Smedley stood in the street. Kittoe approached Wilson and again informed him that he was interfering with the investigation. Kittoe ordered Wilson to leave the area. Wilson told Kittoe that he understood that Kittoe "had a job to do," but that, as an attorney, "he had a job to do as well" ("The Third Refusal to Obey"). Wilson explained that he just wanted to speak to his client for a moment when Kittoe was finished doing "whatever it was" that he was doing. Then Wilson informed Kittoe that "any information" that Kittoe elicited from Woolever as a result of questioning "will be suppressed at trial under the Exclusionary Rule."


Following this exchange, Kittoe paused momentarily and then informed Wilson that he was under arrest. Wilson was promptly handcuffed and placed in Smedley's cruiser. Soon thereafter, a third police vehicle, driven by Lieutenant Anthony Tokach, arrived on the scene. Tokach spoke briefly with Kittoe, and then with Smedley. Smedley then proceeded to the cruiser and offered to remove Wilson's handcuffs.

Wilson eventually was driven to the regional jail, where he was again handcuffed before being led inside. Once in the jail, Wilson's shirt and shoes were removed and he sat, handcuffed, until 6:30 in the morning. He was then issued a summons for a Class 2 misdemeanor violation of Virginia's obstruction of justice statute, Va.Code Ann. § 18.2-460(A), and was released. The Commonwealth's Attorney subsequently filed a nolle prosequi in the proceedings against Wilson.


On April 12, 2001, Wilson filed a complaint in the Western District of Virginia, asserting that Kittoe and Tokach violated his Fourth, Fifth, Sixth, and Fourteenth Amendment rights when they arrested and detained him in the early morning hours of April 14, 1999. Wilson seeks compensatory and punitive damages. On September 27, 2002, after discovery was complete, the defendants filed a motion for summary judgment on the basis of qualified immunity. On October 28, 2002, the district court held an in-chambers conference to discuss the motions. On November 7, 2002, the court denied the motion for summary judgment as to Kittoe and granted it as to Tokach. Wilson, 229 F.Supp.2d at 538. On December 2, 2002, Kittoe filed a timely notice of appeal. We possess jurisdiction pursuant to 28 U.S.C. § 1291 and the collateral order doctrine. Mitchell v. Forsyth,

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472 U.S. 511, 528-30, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).


We review de novo the district court's denial of qualified immunity, employing our full knowledge of our own and other relevant precedents. Rogers v. Pendleton, 249 F.3d 279, 285 (4th Cir. 2001) (citing Elder v. Holloway, 510 U.S. 510, 516, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994)). When considering an appeal of a denial of qualified immunity, we are required to consider the facts "in the light most favorable to the party asserting the injury." Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The burden of proof and persuasion with respect to a claim of qualified immunity is on the defendant official. Gomez v. Toledo, 446 U.S. 635, 640-41, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980).

A defendant is entitled to summary judgment on grounds of qualified immunity when there is no genuine issue of material fact, and when the undisputed facts establish that the defendant is entitled to judgment as a matter of law. Pritchett v. Alford, 973 F.2d 307, 313 (4th Cir. 1992). We have emphasized the importance of resolving the question of qualified immunity at the summary judgment stage rather than at trial. Id. at 313; see also Saucier, 533 U.S. at 200, 121 S.Ct. 2151 ("Qualified immunity is an entitlement not to stand trial or face the other burdens of litigation." (internal quotation marks omitted)). However, we have also recognized that the qualified immunity question can be difficult for a court to resolve as a matter of law, as it can at times require "factual determinations respecting disputed aspects of [a defendant's] conduct." Pritchett, 973 F.2d at 312. The importance of summary judgment in...

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