Cybernet LLC v. David, 032420 FED4, 18-2420

Docket Nº:18-2420
Opinion Judge:WILKINSON, CIRCUIT JUDGE:
Party Name:CYBERNET, LLC; ALADDIN REAL ESTATE, LLC, - Plaintiffs - Appellants, v. JONATHAN DAVID, in his personal capacity and his official capacity as District Attorney for the 13th Prosecutorial District of North Carolina; JAMES MCVICKER, in his personal capacity an in his official capacity as Sheriff of Bladen County, North Carolina; TRAVIS DEAVER, in...
Attorney:Keith P. Anthony, Raleigh, North Carolina, William J. Brian, Jr., MORNINGSTAR LAW GROUP, Durham, North Carolina, for Appellants. Patrick Grayson Spaugh, WOMBLE BOND DICKINSON (US) LLP, Charlotte, North Carolina; James Wellner Doggett, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina,...
Judge Panel:Before GREGORY, Chief Judge, and WILKINSON and WYNN, Circuit Judges.
Case Date:March 24, 2020
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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CYBERNET, LLC; ALADDIN REAL ESTATE, LLC, - Plaintiffs - Appellants,

v.

JONATHAN DAVID, in his personal capacity and his official capacity as District Attorney for the 13th Prosecutorial District of North Carolina; JAMES MCVICKER, in his personal capacity an in his official capacity as Sheriff of Bladen County, North Carolina; TRAVIS DEAVER, in his personal capacity and his official capacity as a Deputy Sheriff of Bladen County, North Carolina, Defendants - Appellees.

No. 18-2420

United States Court of Appeals, Fourth Circuit

March 24, 2020

Argued: January 28, 2020

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Robert Boyd Jones, Jr., Magistrate Judge. (7:16-cv-00016-RJ)

ARGUED:

Keith P. Anthony, Raleigh, North Carolina, William J. Brian, Jr., MORNINGSTAR LAW GROUP, Durham, North Carolina, for Appellants.

Patrick Grayson Spaugh, WOMBLE BOND DICKINSON (US) LLP, Charlotte, North Carolina; James Wellner Doggett, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.

ON BRIEF:

Christopher J. Geis, WOMBLE BOND DICKINSON (US) LLP, Winston-Salem, North Carolina, for Appellees

James McVicker and Travis Deaver.

Before GREGORY, Chief Judge, and WILKINSON and WYNN, Circuit Judges.

WILKINSON, CIRCUIT JUDGE:

This case concerns the execution of search warrants at two video sweepstakes stores in North Carolina owned or operated by appellants Cybernet, LLC and Aladdin Real Estate, LLC (hereinafter Cybernet). In the course of these searches, the deputies executing the warrants caused some damage, the nature and extent of which the parties continue to debate. As a result of this damage, Cybernet brought several state and federal claims in state court. Relevant for this appeal, it sued three state officials under 42 U.S.C. § 1983 for directing or participating in the unlawful destruction of its property in violation of the Fourth Amendment. Those defendants are the appellees here-Deputy Sheriff Travis Deaver, Sheriff James McVicker, and District Attorney Jonathan David. The defendants promptly removed the case to the United States District Court for the Eastern District of North Carolina.

That court, in turn, issued two rulings that are the subject of this appeal. First, the court denied Cybernet's motion to compel testimony concerning David's role in the searches because this testimony was irrelevant or cumulative of other testimony. Second, it granted the defendants summary judgment on the grounds that David and McVicker were only tangentially involved with the searches and because the damage that Deaver allegedly caused was minimal and incidental to the lawful seizure of items within the warrant's scope. We conclude that, taken as a whole, the items seized were within the parameters of the search warrant and any incidental damage that took place is not indicative of the kind of gratuitous damage that would exceed Fourth Amendment bounds. Because we hold that no violation of the Fourth Amendment occurred, and that the requested discovery would accordingly serve no purpose, we affirm the judgment.

I.

A.

Holly and Jeffrey Smith operate two video sweepstakes stores, where customers can play electronic games in exchange for prizes. The stores, Big Aladdin and Little Aladdin, are located across the street from one another in Bladen County, North Carolina. Cybernet owns the stores and leases the space for them from Aladdin Real Estate. The Smiths own both Cybernet and Aladdin, which are the appellants in this case.

In early 2015, the Bladen County Sheriff, James McVicker, suspected the stores of violating a state law that bans video sweepstakes wherein chance predominates over skill. McVicker and one of his deputies, Captain Jeffery Tyler, met with county District Attorney Jonathan David to discuss opening an investigation. After this meeting, Captain Tyler took the reins, recruiting David Borresen-an undercover sheriff's deputy-to assist with the investigation. Borresen visited Big and Little Aladdin a few times in May 2015 and played some of the sweepstakes games to check out their legality.

Armed with Borresen's undercover findings of alleged illegality, Captain Tyler applied for search warrants for Cybernet's stores. These warrants, issued on May 28, 2015, authorized officers to seize various items, including gaming machines and the financial proceeds thereof, related documents, photographs, videos, and electronic media, as well as other "fruits and instrumentalities" of the alleged crimes. J.A. 44-63, 2455.

The next day, the Bladen County Sheriff's Office held an operational briefing to discuss the warrants' execution. At that meeting, Captain Tyler distributed a memorandum reminding officers to "***Be professional, remember people are watching and cameras will be everywhere.***" J.A. 2455 (emphasis in original). Sheriff McVicker was also present for a portion of this meeting. According to Cybernet, McVicker directed his deputies to "take every[] [f***ing] thing out." J.A. 2353. McVicker, for his part, denies this and alleges that he reminded his deputies to be professional. See J.A. 2456 n.1.

Later that afternoon, Big and Little Aladdin were searched. Cybernet alleges that each of the three appellees were present. Deputy Deaver was part of the sixteen-person crew executing the search, Sheriff McVicker arrived at some point after the search began, and, as for DA David, a contractor working for the Smiths alleges that he saw David on site. No other witnesses, however, saw David there, and he is not listed on the crime scene log. By all accounts, two individuals from his office were present as observers.

A few points about the search bear mention. To begin with, officers took steps to secure the premises upon their arrival, telling customers to leave and redirecting the security cameras upward. They then seized evidence from inside and outside the shops. For example, Deputy Deaver was directed to collect the security cameras on Big Aladdin's rooftop. Because those cameras were mounted on two-by-fours, Deaver removed them by pulling the planks from the roof. He also removed LED lighting from tracks attached to the roof but did not seize the lighting and left it on the ground.

The lion's share of the seized evidence, however, came from inside the shops. Officers took with them, among other items, a number of computer monitors, sweepstakes kiosks, boxes of cords and computer parts, and televisions. See J.A. 1229-32 (cataloguing the inventory of seized items). The number of items removed traced to the fact that Cybernet was a large operation. There is no indication that any of these items were damaged. Notably, because one of the seized televisions was out of reach, a deputy stood on a wooden table to remove it. The table gave out under his weight.

Neither of the Smiths was present during the searches, but Mr. Smith arrived at the stores minutes afterward. After surveying his properties, Mr. Smith alleged the following: (1) the LED lighting, portions of the plastic track for the lighting, and the points on the stucco exterior where the track was affixed to the lighting were damaged; (2) wiring on the roof used for the security cameras was yanked or cut; (3) the seal of a conduit allowing wires to pass through the roof was compromised, allowing water to intrude and damage part of a ceiling; (4) an adhesive mural or window sticker depicting the Las Vegas...

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