Miller v. Harget

• Decision Date: 04 August 2006
• Docket Number: No. 05-13573.,05-13573.
• Citation: 458 F.3d 1251
• Parties: Raymond Anthony MILLER, Plaintiff-Appellant, v. Terry J. HARGET, City of Riverdale, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

458 F.3d 1251

Raymond Anthony MILLER, Plaintiff-Appellant, v. Terry J. HARGET, City of Riverdale, Defendants-Appellees.

No. 05-13573.

United States Court of Appeals, Eleventh Circuit.

August 4, 2006.

Maurice J. Bernard, III, Atlanta, GA, for Miller.

Timothy Marzine Tanner, George T. Talley, Coleman, Talley, Newbern, Kurrie, Preston & Holland, Valdosta, GA, for Defendants-Appellees.

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

Before EDMONDSON, Chief Judge, and BIRCH and ALARCÓN^*, Circuit Judges.

ALARCÓN, Circuit Judge:

Raymond Miller appeals from the entry of summary judgment in favor of Officer Terry Harget of the City of Riverdale Police Department and the City of Riverdale ("the City"). Mr. Miller brought a complaint under 42 U.S.C. § 1983 against Officer Harget and the City, asserting, among other things, a violation of the Fourth Amendment arising from an encounter with Officer Harget that eventually led to Mr. Miller's arrest. The District Court concluded that Officer Harget had probable cause to stop and arrest Mr. Miller and that no constitutional violations had occurred. We conclude that the initial encounter between Mr. Miller and Officer Harget was non-coercive and that no detention triggering the protection of the Fourth Amendment occurred until Officer Harget reasonably suspected Mr. Miller of a crime. Mr. Miller's arrest was supported by probable cause. Accordingly, we affirm.

I

In his deposition and affidavits filed in opposition to the motion for summary judgment, Mr. Miller testified as follows. On September 30, 2001, Mr. Miller had an early dinner with two acquaintances at a Mexican restaurant near the HomeTown Inn, an extended stay hotel where Mr. Miller was living at the time. He was staying at the hotel in order to shorten his commute to work. On weekends, he would stay with his family in the nearby town of Lithonia. While at the restaurant, Mr. Miller met Amy Best.

Mr. Miller and Ms. Best decided to leave the restaurant together. Because Ms. Best had been drinking, she designated Mr. Miller as the driver of her car, a '84 or '85 white Pontiac Firebird. They visited Mr. Miller's family in Lithonia, which was about twenty-five miles away. They then returned to Riverdale. They intended to stop at the HomeTown Inn, prior to Mr. Miller driving Ms. Best to her home.

Mr. Miller drove from Lithonia, without committing any traffic code violations, and entered the parking lot of HomeTown Inn. After he entered the parking lot, he drove toward the back of the building. He was hoping to park in the back, close to where his room was located. There were no spaces available, so he parked his car in front of the HomeTown Inn.

In his deposition and affidavit filed in support of his motion for a summary judgment, Officer Harget testified that he was on duty in the area around the HomeTown Inn in a marked patrol car at approximately 10:15 p.m. He was parked in the entrance of the public storage facility near the HomeTown Inn, observing traffic. From this position, he observed the Best vehicle weave in between lanes without signaling and make an improper turn into the parking lot of the HomeTown Inn. After witnessing the traffic code violations, Officer Harget decided to investigate.

Officer Harget pulled into the parking lot and parked directly behind the already parked Best vehicle. Then, Officer Harget "initialed" his "window lights" and beeped his siren to let the occupants know he was there. Officer Harget did not flash his roof lights. He got out of his car and approached the window on the driver's side.

When Officer Harget reached the front door on the driver's side, Mr. Miller, who was still seated in the vehicle, lowered the window. Officer Harget testified that when the window was lowered, he smelled alcohol immediately. He also testified that Mr. Miller's eyes were bloodshot and glassy and that there was a white, non-translucent cup in the cup-holder nearest to Mr. Miller.

Officer Harget told Mr. Miller "he was stopping [him] because [he] had made too wide a turn into the HomeTown Inn parking lot." Ms. Best responded: "You are a liar!" Officer Harget asked Mr. Miller for his driver's license. He produced it.

Mr. Miller testified that Officer Harget asked him if Ms. Best was his girlfriend. Ms. Best responded that it was none of Officer Harget's business. Mr. Miller testified that Officer Harget then asked him what he was planning to do that night. Mr. Miller responded that he was getting ready to go upstairs for a minute, come back down, and take Ms. Best home. Mr. Miller testified that Officer Harget responded: "Yeah, right."

Officer Harget testified that he took Mr. Miller's driver's license and insurance information back to his patrol vehicle and performed a warrant check on Mr. Miller. He found no warrants. The date on the insurance card Mr. Miller provided showed that his car insurance had expired.

Because Ms. Best repeatedly called Officer Harget a liar, Officer Harget radioed for back up. He then re-approached the Best vehicle. Officer Harget testified that he asked Mr. Miller if he had been drinking, and that Mr. Miller admitted to having had a few beers. In his deposition testimony, Mr. Miller denied that he made that statement or that he drank any alcohol that night.

Officer Harget asked Mr. Miller to perform a breathalyzer test, but Mr. Miller refused. Mr. Miller testified that he refused to take the test because "Officer Harget had lied when he said I made too wide of a turn into the parking lot. I felt that his — he would lie that I went above the limit."

Officer Harget asked Mr. Miller to step out of the car. As he stepped out of the vehicle, Mr. Miller dropped some papers onto the floorboard of the Best vehicle. Officer Harget again asked Mr. Miller to perform a breathalyzer test. Mr. Miller again refused. After Mr. Miller's second refusal, Officer Harget placed him under arrest. Officer Harget informed Mr. Miller he was under arrest for DUI. He read Mr. Miller the implied consent notice for suspects over the age of twenty-one, including the provision that a "refusal to submit to the required testing may be offered against you at trial."¹ Mr. Miller refused to take the test required under Georgia law. Officer Harget then escorted Mr. Miller to a patrol car and placed him in the back seat.

Other officers responded quickly to Officer Harget's call for backup. Although the other police officers dealt primarily with Ms. Best, Officer M.E. Taylor also observed Mr. Miller's condition. Officer Taylor testified that in his opinion, Mr. Miller appeared to have been drinking. Officer Taylor testified that Mr. Miller's eyes were glassy, his movements were lethargic, and that he smelled of alcohol.

Officer Harget testified that after placing Mr. Miller under arrest, he retrieved the white cup. It smelled of alcohol. Officer Harget poured out the contents of the cup and placed the cup back in Ms. Best's car. Mr. Miller testified that there was no cup in the vehicle.

After he was arrested, Mr. Miller was transferred to the Riverdale Police Department. He was again given the opportunity to take a state administered blood-alcohol test. He refused. He was issued four traffic citations: DUI; Open Container; Improper Lane Change; and No Proof of Insurance.² The Solicitor's office issued a nolle prosequi for the No Proof of Insurance and the DUI charge. Mr. Miller was acquitted of the remaining two charges at trial.

Following his acquittal, Mr. Miller filed a complaint in federal court against Officer Harget and the City under § 1983. He alleged that his Fourth, Sixth and Fourteenth Amendment rights were violated because he was arrested without probable cause. He also asserted state law claims for false arrest and malicious prosecution.

The District Court entered summary judgment in favor of Officer Harget and the City of Riverdale. Mr. Miller has timely appealed from the District Court's final judgment.³

II

A

Mr. Miller argues that the District Court erred in entering summary judgment in favor of Officer Harget on his claim that his Fourth Amendment rights were violated. He contends that Officer Harget effectuated a traffic stop in pulling up behind the parked Best vehicle and approaching him. He argues that the detention was not supported by reasonable suspicion because he did not in fact commit a traffic code violation. Mr. Miller maintains that the District Court erred in granting summary judgment in favor of Officer Harget and the City because he demonstrated that there are genuine issues of material fact in dispute regarding whether he committed any traffic violation.

In contending that the detention and arrest of Mr. Miller were valid, Officer Harget posits that Mr. Miller cannot "create a factual dispute by simply denying everything." Accordingly, he asks us to disregard certain portions of Mr. Miller's testimony that seem to conflict with Officer Harget's. The District Court accepted this theory, relying on Johnson v. Crooks, 326 F.3d 995 (8th Cir.2003). We review the decision of a district court de novo. Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Lippert v. Cmty. Bank, Inc., 438 F.3d 1275, 1278 (11th Cir. 2006). We decline to adopt today the Eighth Circuit's rule in Johnson. We can affirm anyway and need not worry much about Johnson.

Even if the district court believes that the evidence presented by one side is of doubtful veracity, it is not proper to grant summary judgment on the basis of credibility choices. See, e.g., Bischoff v. Osceola County, 222 F.3d 874, 876 (11th Cir.2000) (holding that in a § 1983 action against the county and sheriff, it was error for the district court to resolve factual dispute and make credibility choices on material issues just by relying on reading of warring affidavits); Harris v....