Flora v. Sw. Iowa Narcotics Enforcement Task Force

• Decision Date: 12 February 2018
• Docket Number: No. 1:16–cv–00002–JEG,1:16–cv–00002–JEG
• Citation: 292 F.Supp.3d 875
• Parties: Phillip Anthony FLORA, Plaintiff, v. SOUTHWEST IOWA NARCOTICS ENFORCEMENT TASK FORCE; Brian Miller; Shelly Sedlak–Sudmann; and Pottawattamie County Attorney's Office, Defendants.
• Court: U.S. District Court — Southern District of Iowa

292 F.Supp.3d 875

Phillip Anthony FLORA, Plaintiff,

v.SOUTHWEST IOWA NARCOTICS ENFORCEMENT TASK FORCE; Brian Miller; Shelly Sedlak–Sudmann; and Pottawattamie County Attorney's Office, Defendants.

No. 1:16–cv–00002–JEG

United States District Court, S.D. Iowa, Western Division.

Signed February 12, 2018

Glen Stephen Downey, Downey & Mundy Law Offices, PLLC, Des Moines, IA, for Plaintiff.

Alex Grasso, Barbara A. Hering, Michelle R. Rodemyer, Hopkins & Huebner PC, Des Moines, IA, for Defendants.

ORDER

JAMES E. GRITZNER, Senior JudgeThis matter comes before the Court on a Motion for Summary Judgment (the Motion) pursuant to Federal Rule of Civil Procedure 56 filed by Defendants Southwest Iowa Narcotics Enforcement Task Force (Task Force), Pottawattamie County Deputy Sheriff Brian Miller (Miller), Assistant Pottawattamie County Attorney Shelly Sedlak–Sudmann (Sudmann), and the Pottawattamie County Attorney's Office (PCAO) (collectively, Defendants). Plaintiff Phillip Anthony Flora (Flora or Plaintiff) resists the motion. The Court held a hearing on the Motion on October 6, 2017. Attorneys Alex Grasso and Michelle Rodemyer were present for Defendants, and attorneys Glen Downey and Nathan Mundy were present for Flora. The matter is fully submitted and ready for disposition.

I. BACKGROUND¹

A. The Traffic Stop

Flora's action, which comprises five claims under 42 U.S.C. § 1983 and a supplemental state law claim for conversion, stems from a traffic stop that occurred shortly before 2:00 p.m. on August 27, 2015. Flora was driving a Toyota Camry with Tennessee license plates in the westbound lane of Interstate 80 outside Council Bluffs, Iowa. Flora alleges that he had set the cruise control to 70 miles-per-hour—the posted speed limit on that stretch of the interstate—when he was observed by Miller. Miller was parked in his patrol car, facing westbound traffic, at the same time and in the same area as Flora when Flora passed him. In addition to serving as a Pottawattamie County Deputy Sheriff, Miller is a trained drug interdiction officer, a K–9 handler, and a member of the Task Force. Miller activated his emergency lights and initiated a stop of Flora. Flora alleges that Miller's speed radar equipment was not engaged at any point during his pursuit and stop of Flora and, in fact, a radar reading does not appear in Miller's unredacted patrol car video.²

Miller approached Flora's passenger side window and informed him that he had been traveling 74 miles-per-hour. Miller requested Flora's driver's license, registration, and proof of insurance.³ Miller began to question Flora about his occupation and travel itinerary. Flora replied that he worked in information technology and had flown into Cedar Rapids, Iowa the day prior. Flora stated that he was planning on meeting a client "off the freeway" in Omaha, Nebraska, yet did not know which exit to take and would call his client when he got close.⁴ Defs' SUF ¶ 20, ECF No. 22–1; Pl's RSUF ¶ 20, ECF No. 70–1. Flora stated for a second time that he did not know his intended exit, though he was less than ten minutes from the Omaha area.⁵

Within minutes of the initial stop, Miller returned to his patrol car to review the documents that Flora had provided to him. Miller observed that Flora had rented the vehicle on August 27, 2015 at 8:49 a.m. in Cedar Rapids, and the vehicle needed to be returned in Huntington Beach, California on August 29, 2015 at 9:00 a.m., with the total cost of the rental being $1,535.90. Miller checked Flora's information and vehicle on the National Crime Information Center (NCIC). Miller completed and printed a traffic warning memorandum for Flora. Miller spent between seven and seven and one-half minutes reviewing Flora's documents and printing the warning before returning to Flora's vehicle. Upon returning to Flora's vehicle, Miller did not return Flora's paperwork and warning memorandum, but instead asked if Flora had anything illegal in his car, which Flora denied. Miller informed Flora, "I have a narcotics dog, I'm going to take him around your car real quick."⁶ Pl's App. 106, ECF No. 70–3 (Unredacted Miller Patrol Car Video 14:00:10–14:00:20). Miller asked Flora if he had been "back to Iowa before," to which Flora replied that he had been once before, "maybe a year ago." Pl's SAF ¶ 10, ECF No. 70–2; Defs' RSAF ¶ 10, ECF No. 73; Pl's App. 106, ECF No. 70–3 (Unredacted Miller Patrol Car Video 14:00:23–14:00:33).

Before running his drug dog, Francesco, around Flora's rental car, Miller instructed Flora to exit the vehicle. Flora exited the vehicle without objection. Miller informed Flora, "I'm going to pat you down here real quick," to which Flora responded "Yeah," and Miller completed the pat down. Pl's App. 106, ECF No. 70–3 (Unredacted Miller Patrol Car Video 14:00:40–14:00:47). No weapons or contraband were found on Flora's person. Miller commented, "We just get a lot of stuff being moved around, this is a major interstate," to which Flora responded, in audible part, "Yeah, no problem."⁷ Pl's App. 106, ECF No. 70–3 (Unredacted Miller Patrol Car Video 14:00:47–14:00:51). Miller again stated, "I'm going to run my dog around your car real quick." Pl's App. 106, ECF No. 70–3 (Unredacted Miller Patrol Car Video 14:00:51–14:00:54). Miller asked Flora about his customer, and the two briefly conversed about Flora's business. For a third time, Miller informed Flora that he was going to run Francesco around Flora's car, stating "Just stay right there and I'm going to move him around." Pl's App. 106, ECF No. 70–3 (Unredacted Miller Patrol Car Video 14:01:15–14:01:18). Flora at no point objected to Miller performing the dog sniff. Miller then walked Francesco along Flora's car. Francesco alerted by sitting outside the rental car's trunk. Flora acknowledges that Francesco alerted but alleges that Miller triggered the alert by gesticulating wildly and pulling something from behind his back to show Francesco when the dog approached the rear bumper. Miller's unredacted patrol car video shows that Miller looped Francesco twice in a circle around his body, that Miller moved his arms in an ambiguous fashion as he walked Francesco counterclockwise around Flora's rental car, and that, after Francesco sat behind the car's trunk, Miller reached behind his back and presented something to the dog. Pl's App. 106, ECF No. 70–3 (Unredacted Miller Patrol Car Video 14:01:35–14:02:05). The trunk was later revealed to be empty.

Miller allowed Flora to get back into his vehicle and placed Francesco in his patrol car. Miller retrieved Flora's documents and warning memorandum and returned to Flora's vehicle. Flora alleges that, for a second time, Miller asked if he had anything illegal in his car, which Flora denied. Miller then handed Flora his documents and requested Flora's consent to search the vehicle. Flora refused to consent to the interior search. Miller informed Flora that Francesco had alerted to drugs and that he had probable cause to search Flora's vehicle. Flora exited the vehicle, and Miller began his interior search.

After Miller began searching the passenger compartment, he asked Flora if there was a large amount of cash in the car. Flora acknowledged there was a large amount of cash in the backseat. Flora alleges that he told Miller the cash would be used to purchase a customer list from his Omaha client. Miller's search revealed $120,090 in U.S. currency, bundled together with rubber bands, packaged in vacuum-sealed bags, wrapped in several grocery bags, and placed inside an Igloo-brand cooler. Flora alleges that the roadside search revealed no contraband, and Miller's incident report does not indicate such a discovery.

B. Flora's Arrest

After locating the currency, Miller requested backup from Pottawattamie County Deputy Sheriff Eric Shea, who arrived on the scene at approximately 2:10 p.m. Miller then returned to his patrol car and telephoned Sudmann. Sudmann prosecutes civil asset forfeiture cases in Pottawattamie County and provides legal advice to officers in the field on civil forfeiture. Miller told Sudmann that Flora was driving a rental car that cost in excess of $1500 for a two-day trip from Cedar Rapids to Huntington Beach. Miller relayed that he had located a large amount of cash in Flora's rental car, which he believed was packaged as if it was drug related, though Flora was adamant that the money was related to his business and otherwise refused to answer questions about the cash. Miller also told Sudmann that Flora said he was meeting a client off the interstate in Omaha, that Miller's drug dog alerted, and that Flora had refused to consent to a search of his car. Pl's App. 106, ECF No. 70–3 (Unredacted Miller Patrol Car Video 14:27:50–14:30:20). Sudmann advised Miller that he could seize Flora's cash and vehicle and to transport them to the Pottawattamie County Sheriff's Office (PCSO).

After the call with Sudmann, Miller advised Flora that he was "detaining Flora and Flora's vehicle for an expanded search of the vehicle." Defs' SUF ¶ 37, ECF No. 22–1; Pl's RSUF ¶ 37, ECF No. 70–1. Miller then read Flora his Miranda rights.⁸ Flora refused to answer any questions and requested an attorney. Miller instructed Flora to wait with Deputy Shea while Miller again telephoned Sudmann.

C. Seizure of Flora's Cash

At approximately 2:36 p.m., Task Force Officers Ken McClure and Bob Christensen arrived at the scene. Together, the officers transported Flora and Flora's vehicle to the PCSO.⁹ There, the officers conducted a more thorough search of Flora's car. Miller stated that, during this search, he found a small amount of a green, leafy substance, which tested positive for marijuana in a field-testing kit before he threw the test kit away.¹⁰ Miller stated that he also disposed of the substance tested by the kit. Flora alleges that no photographs were taken of the marijuana or positive test kit, and the record contains no photographs of the kit or the supposed contraband.¹¹ After...