Ivester v. Lee, 4:96-CV-1807 CAS.

• Decision Date: 26 January 1998
• Docket Number: No. 4:96-CV-1807 CAS.,4:96-CV-1807 CAS.
• Citation: 991 F.Supp. 1113
• Parties: Duane L. IVESTER, Plaintiff, v. Jessie Calvin LEE, et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

Page 1113

991 F.Supp. 1113

Duane L. IVESTER, Plaintiff, v. Jessie Calvin LEE, et al., Defendants.

No. 4:96-CV-1807 CAS.

United States District Court, E.D. Missouri, Eastern Division.

January 26, 1998.

COPYRIGHT MATERIAL OMITTED

Duane L. Ivester, Moberly, MO, pro se.

Daniel P. Fall, Schnapp and Fulton, Fredericktown, MO, for Jessie Calvin Lee, Ironton City Police Dept., Joseph Wilson, John Rueweler, Victor Wilfong, Johnny Matthewa, Charles Helton and Iron County Sheriff's Dept.

Raymond M. Meyer, Asst. U.S. Atty., St. Louis, MO, for U.S. and Drug Enforcement Agency.

MEMORANDUM AND ORDER

SHAW, District Judge.

This matter is before the Court on a number of pretrial motions, including competing motions for summary judgment filed by the plaintiff and the defendants. Plaintiff, a Missouri prisoner, seeks the return of $3,543.01 in U.S. currency which was seized by officers of the Ironton Police Department on March 27, 1993. Plaintiff also asserts that his constitutional rights were violated in connection with a search of his residence, his arrest, seizure of the currency, and the transfer of the currency to the federal Drug Enforcement Administration.

I. Standard of Review.

The standards applicable to summary judgment motions are well settled. Pursuant to Federal Rule of Civil Procedure 56(c), a court may grant a motion for summary judgment if all of the information before the court shows "there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The initial burden is placed on the moving party. City of Mt. Pleasant, Iowa v. Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir.1988) (the moving party has the burden of clearly establishing the non-existence of any genuine issue of fact that is material to a judgment in its favor). Once this burden is discharged, if the record does in fact bear out that no genuine dispute exists, the burden then shifts to the non-moving party who must set forth affirmative evidence and specific facts showing there is a genuine dispute on that issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Once the burden shifts, the non-moving party may not rest on the allegations in its pleadings, but by affidavit and other evidence must set forth specific facts showing that a genuine issue of material fact exists. Fed. R.Civ.P. 56(e). The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In fact, the non-moving party must show there is sufficient evidence favoring the non-moving party which would enable a jury to return a verdict for him. Anderson, 477 U.S. at 249; Celotex, 477 U.S. at 324.

In passing on a motion for summary judgment, this Court is required to view the facts in a light most favorable to the nonmoving party and to give the non-moving party the benefit of any inferences that can logically be drawn from those facts. Matsushita, 475 U.S. at 587; Buller v. Buechler, 706 F.2d 844, 846 (8th Cir.1983). Moreover, this Court is required to resolve all conflicts in favor of the non-moving party. Robert Johnson Grain Co. v. Chemical Interchange Co., 541 F.2d 207, 210 (8th Cir.1976).

Nonetheless, the Court is "`not required to speculate on which portion of the record the nonmoving party relies, nor is it obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim.'" Barge v. Anheuser-Busch, Inc., 87 F.3d 256, 260 (8th Cir. 1996) (quoting White v. McDonnell Douglas Corp., 904 F.2d 456, 458 (8th Cir.1990)). Further, "Self-serving, conclusory statements without support are not sufficient to defeat summary judgment." Armour and Co., Inc. v. Inver Grove Heights, 2 F.3d 276, 279 (8th Cir.1993).

With these standards in mind, the Court accepts the following facts as true for purposes of resolving this motion for summary judgment.

II. Facts.¹

On March 27, 1993, plaintiffs residence at Rural Route # 1, Box 20B, Arcadia, Missouri was searched by defendant Jesse Calvin Lee, a deputy sheriff with the Iron County Sheriff's Department; defendant Joseph Wilson Chief of Police of the Ironton Police Department; and defendants Victor Wilfong, Johnny Matthews, John Rueweler, and Charles Helton of the Ironton Police Department. These defendants conducted the search under authority of a search warrant issued on March 27, 1993 by Judge Alan G. Harriss, Associate Circuit Judge of Iron County, Missouri. (See Ex. B to Defs.' Mem. in Supp. of Mot. for S.J.)

The search warrant was issued pursuant to a complaint for search warrant submitted by an Iron County Assistant Prosecuting Attorney. (Id.) The basis for obtaining the warrant was set forth in the affidavit of defendant Lee, which was attached to and incorporated in the complaint for search warrant. In the affidavit, defendant Lee stated that he believed marijuana, controlled substances, and illegal contraband were being kept in a house and storage building located at Route 1, Box 20B, Arcadia, Missouri, which was owned by a realty company and occupied by plaintiff Duane Ivester. (Id.) In support of this belief, Lee's affidavit stated the information had come from a confidential informant who (i) had been inside the house within the past forty-eight hours and had observed a controlled substance therein; (ii) had observed plaintiff in actual possession of the controlled substance; (iii) described seeing marijuana packaged in plastic bags and located in various parts of the house; (iv) was familiar with the appearance of marijuana; and (v) had provided information to Lee in the past which was corroborated and was deemed by Lee to be reliable. (Id.) None of the other individual defendants supplied any information used to procure the search warrant. (Defs.' Mem. in Supp., Matthews Aff. Ex. D ¶ 7; Rueweler Aff. Ex. E ¶ 7; Wilson Aff. Ex. F ¶ 9; Helton Aff. Ex. G ¶ 6; Wilfong Aff. Ex. H ¶ 9.)

Based on the complaint for search warrant and Lee's affidavit, Judge Harriss issued a search warrant authorizing the search of plaintiff's residence and vehicles, and seizure of "Marijuana and other controlled substances and/or illegal contraband and cultivating tools." (Id.)

The warrant was executed on March 27, 1993. Officer Lee knocked on the main entrance door, identified himself as an Iron County Deputy Sheriff, and stated that he was serving a duly authorized search warrant. (Ex. A to Defs.' Mem. in Supp., Lee Aff. ¶ 18.) Plaintiff accepted the search warrant and consented to the officers' entry into the house. (Id. ¶ 19.) Defendant Rueweler took plaintiff and the other occupants into the living room of the house. (Id.; Rueweler Aff. ¶ 6.) Rueweler seized a gun case from the living room mantle, and found it to contain a loaded .380 semiautomatic pistol, a large freezer bag containing several other plastic freezer bags and plastic sandwich bags, a floating weight scale, a package of six syringes, and $2,795.00 in U.S. currency. (Lee Aff. ¶ 21; Rueweler Aff. ¶ 6.)

Defendant Matthews searched the upstairs bedroom and discovered a man standing in a bathtub behind a shower curtain. (Ex. D. to Defs.' Mem. in Supp.; Matthews Aff. ¶ 5.) This man had previously been seen running into the house as the defendant officers approached. (Ex. A, D, E, F, H to Defs.' Mem. in Supp.) The man had a plastic freezer bag lying between his feet and a similar bag protruding from the top of his blue jeans, both of which contained a green, leafy substance. (Matthews Aff. ¶ 5.)

A search of a bedroom revealed a small plastic cup containing a material believed to be partially burned marijuana cigarettes, a shotgun, a six-shot revolver, triple-beam balance scales, a plastic cup containing $125.28, and a glass jar containing seeds believed to be marijuana seeds. A green duffle bag in the bedroom contained a silver-colored serving tray, a pair of scissors, a pair of hemostats, a container of rolling papers, a plastic baggie containing a green, leafy substance believed to be marijuana, and a wallet containing $615.00 in currency. (Lee Aff. ¶¶ 19-20.) Another bedroom contained "several other firearms." (Id. ¶ 21.)

Plaintiff and the other individuals present in the house were advised of their Miranda² rights, handcuffed and taken to the defendants' patrol cars. As the individuals were being taken to the cars, a juvenile suspect began speaking to defendant Lee, whereupon plaintiff stated, "Shut up, don't say anything, it's all mine." (Id. ¶¶ 22-23.)

On March 27, 1993, an Iron County assistant prosecuting attorney filed a complaint charging plaintiff with the Class C felony of possessing a controlled substance at his residence. (Pl.'s Opposition filed 7/31/97 at 3, ¶¶ 9-10.) Plaintiff was held in the Iron County Jail in Ironton, Missouri from March 27, 1993, through approximately April 3 or 4, 1993. (Pl's. Answers to Interrog. Nos. 8a and 8b.)³ The record does not reflect disposition of the charge against plaintiff.

On April 1, 1993, the Drug Enforcement Administration (DEA) adopted the seizure of the currency for federal administrative forfeiture proceedings. (Defs.' Mem. in Supp., Snider Decl., Ex. C at 2.) On April 25, 1993, written notice of the seizure was sent pursuant to 19 U.S.C. § 1607(a) and 21 U.S.C. § 881(d), by certified mail, return receipt requested, to Duane L. Ivester, RR# 1, Box 20B, Arcadia, Missouri 63621. (Id.) This letter was returned unclaimed to the DEA with the envelope stamped "Returned to Sender. Attempted [illegible]." (Id.)

During the time period March 1, 1993 though July 1, 1993, plaintiff resided at Route 1, Box 20B, Arcadia, Missouri, and at HCR63 Box 3230, Ironton, Missouri. (Pl's. Answers to Interrog. No. 7a.)

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