407 F.3d 1272 (11th Cir. 2005), 02-16424, Evans v. Stephens

Docket Nº:02-16424.
Citation:407 F.3d 1272
Party Name:Peter EVANS, Detree Jordan, Plaintiffs-Appellees, v. Denis STEPHENS, Defendant-Appellant, United States of America, Intervenor.
Case Date:May 09, 2005
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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407 F.3d 1272 (11th Cir. 2005)

Peter EVANS, Detree Jordan, Plaintiffs-Appellees,

v.

Denis STEPHENS, Defendant-Appellant,

United States of America, Intervenor.

No. 02-16424.

United States Court of Appeals, Eleventh Circuit

May 9, 2005

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Richard A. Carothers, Thomas M. Mitchell, Carothers & Mitchell, LLC, Buford, GA, for Stephens.

Dovre Christian Jensen, Clark E. Gulley, Foster, Jensen & Gulley, LLC, Norman J. Slawsky, Jacobs, Slawsky & Barnett, P.A., Atlanta, GA, Thomas F. Richardson, Norman Carter Pearson, III, Chambless, Higdon, Richardson, Katz & Griggs, L.L.P., Macon, GA, Laurel E. Henderson, Laurel E. Henderson, P.C., Decatur, GA, for Appellants.

Thomas Summers Hale, Scott Wayne Gosnell, Burgess & Hale, L.L.C., Birmingham, AL, Terry Eugene Williams, Jason C. Waymire, Terry E. Williams & Associates, Lawrenceville, GA, Mark R. Brown, Capital University Law School, Columbus, OH, Thomas C. Goldstein, Amy Howe, Goldstein & Howe, P.C., Stuart J. Roth, Jay Alan Sekulow, American Center for Law & Justice, Richard A. Samp, Washington Legal Foundation, Washington, DC, Scott Dewitt Delius, Delius Law Firm, P.C., Atlanta, GA, A. Jonathan Trafimow, Robert S. Groban, Jr., Epstein, Becker & Green, P.C., New York City, Martin S. Lederman, Bethesda, MD, Laurence Henry

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Tribe, Harvard Law School, Cambridge, MA, for Amici Curiae.

Douglas N. Letter, U.S. Dept. of Justice, App. Lit. Counsel, Civ. Div., Washington, DC, for Intervenor.

Appeal from the United States District Court for the Northern District of Georgia.

Before EDMONDSON, Chief Judge, and TJOFLAT, ANDERSON, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON and PRYOR, Circuit Judges.

EDMONDSON, Chief Judge:

This case is about an arresting officer's investigatory strip search for the purpose of discovering drugs on persons who had been arrested lawfully but had been arrested for offenses that were not drug crimes.

Plaintiffs-Appellees, Peter Evans and Detree Jordan, sued Defendant-Appellant, Police Officer Denis Stephens, alleging that Officer Stephens violated their rights under the Fourth Amendment to the United States Constitution. In ruling on defendants' motion for summary judgment, the district court concluded Officer Stephens's acts were unconstitutional and not protected by qualified immunity. A panel of this Court reversed the district court's decision on qualified immunity. We decided to vacate the panel's decision and to rehear the appeal. Assuming Plaintiffs' version of the facts is accurate, we now conclude that the pertinent conduct violated Plaintiffs' constitutional rights and that qualified immunity applies to just one alleged violation.

BACKGROUND

For this appeal, these alleged and evidenced facts will be supposed to be the true facts.

Plaintiffs are two black males. The events giving rise to this appeal occurred on 22 January 1999; Plaintiffs were then in their early and middle twenties. That night, Evans and Jordan were traveling from Atlanta, Georgia, to Statesboro, Georgia, where both were or had been enrolled at Georgia Southern University. Evans drove himself and Jordan in a rental car. Despite that Evans had made the journey between Atlanta and Statesboro on many earlier occasions, they became lost and traveled down Interstate 85 instead of Interstate 75.

While trying to return to Interstate 75, Evans and Jordan passed through the City of Zebulon, Georgia. There, Officer Stephens, a white male, stopped Evans after Stephens clocked Evans's car traveling at a speed of seventy-two miles per hour in a forty-five mile per hour zone. 1 A video camera in Stephens's patrol car recorded the stop. As Stephens approached Evans, another police officer from the City of Concord Police Department arrived on the scene. Stephens suspected Evans might have been driving under the influence, but Evans denied doing so. Stephens then ordered Evans out of the car and searched Evans's pockets. Stephens claims he found a beer bottle top in one of Evans's pockets. Evans denies the top was there, and Stephens did not show the bottle top to the recording camera.

Evans stayed at the rear of the rental car when Officer Stephens approached Jordan, who remained seated in the passenger seat. Stephens took Jordan's drivers license and asked him to exit the car as well. With Evans's permission, Stephens

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searched the car for about five minutes. Stephens claims he saw an open container of an alcoholic beverage in the car. Evans denies it, and Stephens did not follow his usual practice of showing the container to the recording camera. 2

Officer Stephens cited Evans for speeding and read him the Georgia Implied Consent Law, O.C.G.A. § 40-6-392(a)(4). After Stephens asked whether Evans would consent to a breathalyzer, Evans said he wanted to call his lawyer. Stephens then placed him under arrest and repeated the request. Evans again said that he wanted to talk to his attorney. Stephens charged Evans with D.U.I. refusal and speeding and then placed him in the patrol car. At Stephens's deposition, he said that Evans had alcohol on his breath, bloodshot eyes, and an unstable demeanor. Officer Stephens concluded the facts authorized the arrest of Evans.

At the scene of the stop, Officer Stephens, by radio, requested a search on Jordan's name to check for outstanding warrants. The dispatcher relayed to Stephens that a "Detre Jordan" with Plaintiff-Appellant Jordan's date of birth had an outstanding arrest warrant. Stephens then arrested Jordan. 3 After placing Jordan under arrest, Stephens searched Jordan's pockets; and Stephens said that he would release Jordan if the warrant was for someone else. While waiting on the tow truck, Stephens and another officer searched the car and surrounding area for approximately seven minutes. This search of the car was the second one that revealed, according to Plaintiffs, nothing.

Officer Stephens then drove Plaintiffs to the Pike County jail. Plaintiffs say that on the way to the jail, Jordan continued to explain the warrant was not for him and to request a phone call. Both men also recall Stephens saying that he is the judge and jury in Zebulon and that he decides who can make phone calls. Evans also recalls Stephens saying that he would "send you niggers away for a long time."

According to Plaintiffs, Officer Stephens patted them down again before they entered the county jail building. Stephens informed the jailer on duty, Officer Andre Dawson, of the charges against Plaintiffs. Dawson recalls reviewing the report on the "Jordan" in the warrant and concluding that it was not the Plaintiff; Dawson encouraged Stephens to release Jordan.

Officer Stephens became angry and walked Jordan to a room that appeared to be a supply closet or mop storage room. There, Stephens pestered Jordan with racist language and ordered Jordan to place his hands on the wall and to remove his shoes and shirt. Jordan complied. Stephens then ordered Jordan to take off his remaining clothes. When asked to lower his underwear, Jordan protested by turning around and saying that Stephens had the wrong person. Jordan says that Stephens then put him in a choke hold and held him against the wall until Jordan began to gag. 4 Jordan faced the wall again; and then Evans was thrown into the room, hitting Jordan and causing both men to fall. As Jordan tried to stand, Stephens hit Jordan's side with a baton-

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like "cold black" object. 5

Evans says that, once he was in the room and standing against the wall, Stephens again ordered Jordan to take off his underwear. According to Jordan, after Officer Stephens--in Evans's presence--pulled Jordan's underwear to his ankles, Stephens used the same "cold black" object to separate Jordan's butt cheeks and "stuck me in my anus."

After searching Jordan, Stephens turned to Evans. Evans says Stephens told him to remove his underwear and then--in Jordan's presence--placed "the [same] stick in my ass." According to Evans, Stephens also used the baton to lift Evans's and Jordan's testicles. Evans testified at his deposition that Stephens used the same baton on both Plaintiffs and that Stephens did not clean or wipe down the baton during the strip search.

While conducting the strip search, Stephens taunted both Plaintiffs with laughter, racist language and threats of prison--where Stephens promised to send Plaintiffs. After the strip search, Evans and Jordan were made to dress quickly. Plaintiffs were then handcuffed to the bench in front of the jailer; they then spent the night in the general jail population. 6

Officer Stephens said he had a reasonable suspicion that Plaintiffs had drugs based on their demeanor (nervousness at the roadside stop) and their story of being lost. This suspicion, Stephens claims, justified the strip search for drugs.

Plaintiffs brought suit in the United States District Court for the Northern District of Georgia, claiming in part, that Stephens violated their rights to the Fourth, Fifth and Fourteenth Amendments to the United States Constitution, as well as Title VII of the 1965 Civil Rights Act. In the light of Defendants' motions for summary judgment, the claims were narrowed to ones based on the Fourth Amendment. The district court decided, if Plaintiffs' story was true, that the strip search violated Evan's and Jordan's constitutional rights and that Stephens was entitled to no immunity. A panel of this Court agreed that the Constitution was violated, because (1) Stephens lacked reasonable suspicion to perform the strip search; and (2) the manner in which he conducted the strip search was unreasonable. Evans v. City of Zebulon, 351 F.3d 485, 497 (11th Cir. 2003), vacated...

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