Ivory v. Platt

CourtUnited States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
Decision Date11 October 2016
Docket NumberCASE NO. 15-3051-SAC-DJW
PartiesJOHNNY LEE IVORY, III, Plaintiff, v. DAVID PLATT, et al., Defendants.

DAVID PLATT, et al., Defendants.

CASE NO. 15-3051-SAC-DJW


October 11, 2016


Plaintiff filed this pro se civil rights complaint under 42 U.S.C. § 1983 when he was a federal pretrial detainee. He has since been convicted and is serving his lengthy federal sentence. Plaintiff sues the County District Court Judge who issued a wiretap order on his cell phones and the County District Attorney ("D.A.") who submitted the wiretap application. He seeks damages and unspecified injunctive relief. For the reasons that follow, the court dismisses the complaint pursuant to 28 U.S.C. § 1915A(a) and (b) and 28 U.S.C. § 1915(e)(2)(B) mainly because plaintiff states no claim for relief and seeks damages from defendants that are immune from suit for damages.


In the "final months of a thirteen-month investigation into a suspected narcotics-trafficking conspiracy," investigators

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obtained several wiretap orders in the District Court of Geary County, Kansas. United States v. Banks, Ivory, et al., 2014 WL 4261344, *1-2 (D.Kan. Aug. 29, 2014).1 Geary County District Court Judge Platt issued the wiretap orders under the Kansas wiretap statutes, K.S.A. 22-2514, et seq. Law enforcement officers also used confidential informants, surveillance, and search warrants. "The investigation was a joint effort" by the KBI, the Junction City Police Department, the Geary County Sheriff's Office, and the Riley County Police Department. Id. Initially, the investigation centered on Albert Banks and Anthony Thompson. See United States v. Ivory, 13-cr-40060-DDC-5 (D.Kan.)(hereinafter "Crimcase") Motion to Suppress (Doc. 338) at 1. Judge Platt issued the first "state authorized wiretap intercept" order on a phone used by Mr. Ivory on April 2, 2013.2 Banks, 2014 WL 4261344 at *2.

In April or May of 2013, Judge Platt granted an application for a search warrant for the residence at 3139 SE Michigan Avenue in Topeka, Kansas that belonged to Ivory's mother. See United States v. Ivory et al., 2015 WL 2401048, *8 (D.Kan. May 15, 2015). On May 13, 2013, officers executed the warrant and

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seized crack cocaine, drug paraphernalia, and ammunition. Id. On May 29, 2013, Mr. Ivory and nine other defendants were named in a federal indictment alleging conspiracy to distribute crack cocaine along with individual counts of crack cocaine distribution and firearms violations. Id.

During federal pretrial proceedings, Ivory and his co-defendants filed numerous motions to suppress evidence obtained through wiretaps, intercepted text messages, and residential search warrants.3 These motions were eventually determined by the trial court in a series of complicated orders. In Ivory's initial motions to suppress wiretap evidence, he argued that Judge Platt's wiretap orders were facially deficient because the applications failed to demonstrate probable cause. The trial court rejected this ground as follows:

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Both the Kansas and federal statute require an issuing judge to determine that probable cause exists to believe a targeted individual is committing, has committed, or is about to commit a particular enumerated offense, and that interception will reveal (communications) about that particular offense. K.S.A. § 22-2518(3); 18 U.S.C. § 2518(3). The Court already has held that narcotics distribution and conspiracy to distribute narcotics are crimes for which a wiretap order may issue. Doc. 445. The Court now holds that that each application demonstrated sufficient probable cause that defendants committed or were comitting those crimes.

United States v. Banks, Ivory, et al., 2014 WL 5321075 at *6 (D.Kan. Oct. 17, 2014).

Ivory and other defendants also argued that the trial court should suppress wiretap evidence because, as plaintiff alleges here, "agents intercepted communications outside the territorial jurisdiction of the judge who authorized the wiretaps." Crimcase Memorandum and Order (Doc. 517) at *1 (D.Kan. Nov. 19, 2014). On August 21, 2014, the federal trial court held a suppression hearing and ruled from the bench. The court later memorialized its rulings in a Memorandum and Order. See id. The trial court found that "a Kansas state court judge acting under Kansas law has no authority to authorize interception outside the judge's own judicial district." Id. It reasoned that K.S.A. 22-2516(3) of the Kansas wiretapping statutes authorized Judge Platt to enter a wiretap order only within his "territorial jurisdiction;" that Geary County is in the Eighth

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Judicial District along with Dickinson, Marion, and Morris counties (see K.S.A. 4-209); that the Kansas legislature had thus authorized Judge Platt to issue a wiretap order in those four counties only; and that Mr. Ivory resided in Topeka, Kansas, which is in the Third Judicial District (see K.S.A. 4-204). The court ruled that it "could not sustain" Judge Platt's wiretap orders because the monitoring was done in Topeka outside the judge's territorial jurisdiction and the Government did not provide evidence as to where the "intercepting device" was located. Id. at *3-4. The court concluded that "Kansas law required it to suppress any phone call intercepted outside Kansas' Eight Judicial District." Id.

In additional complicated orders, the trial court considered the motions of Ivory and his co-defendants to suppress evidence obtained with search warrants as "derivative of suppressed phone calls." See United States v. Banks, Ivory, et al., 2015 WL 2401048 (D.Kan. May 15, 2015); see also United States v. Banks, et al., 93 F.Supp.3d 1237, 1240 (D.Kan. Feb. 23, 2015). The trial court exhaustively analyzed cases and "identified three ways that a wiretap could fall within Judge Platt's territorial jurisdiction."4 Id. It ruled that one of

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the following "must have been physically present within Kansas' Eighth Judicial District at the time a call was intercepted:" (1) "the monitoring station (the location where law enforcement first hears the intercepted communications)," (2) the intercepting device, or (3) the tapped phones.5 See Banks, 93 F.Supp.3d at 1240. The court found that the first option was nullified in Ivory's case because the monitoring station was at the KBI headquarters in Topeka and that the government never "invoked" the second option. The court "ordered that it would suppress the wiretap evidence . . . unless the government could prove that the tapped phones were physically located within the Eighth Judicial District at the time of interception." See id. The trial court's standards on "derivative evidence" and its analysis are instructive here and thus quoted at length:

Both the federal wiretap statute, commonly called "Title III," and Kansas' wiretap statute, which largely tracks its federal counterpart, require the Court to suppress unlawfully intercepted wire and oral communications and any "evidence derived therefrom." 18 U.S.C. § 2515; K.S.A. § 22-2517. The motions filed by Mr. Banks, Mr. Ivory, and Mr. Thompson ask the Court to find that certain search warrants "derived from" suppressed phone calls because the warrant applications relied, at least in part, on suppressed wiretap evidence to establish probable cause.... To resolve defendants' motions, the Court will determine,

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first, what portions of the affidavit derive from suppressed evidence. Next, it will construct a reconstituted affidavit consisting only of the evidence untainted by the wiretap violation. Last, the Court will consider whether probable cause supported a search of targeted residences based solely on the information in the reconstituted affidavits.

Banks, 2015 WL 2401048, at *2-3. The trial court applied its formula, removed the suppressed calls from the search warrant application in Mr. Ivory's case, and "reconstituted" the affidavit to include only evidence that survived its suppression order. The court concluded that the information remaining in the reconstituted affidavit "still provided Judge Platt with a substantial basis to find probable cause to issue a search warrant."6 Id. at *9. That search warrant produced physical evidence of Mr. Ivory's offenses. Id. at *8-9.

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On March 13, 2015, Mr. Ivory filed this pro se civil rights complaint asserting only that Judge Platt and D.A. Opat violated his constitutional rights under the Fourth Amendment.7 He alleged only the following facts in support. Defendant Judge Platt in Kansas' Eighth Judicial District issued a wiretap order outside his territorial jurisdiction on plaintiff who resided in Kansas' Third Judicial District; and defendant Opat, District Attorney in the Eighth Judicial District, "applied for a wiretap on plaintiff's cell phone in the 3rd judicial district" which was "outside defendant (sic) territorial jurisdiction." Plaintiff asks this court to declare that the "acts and omissions of the defendants" violated "plaintiff's rights." He also asks the court to grant "injunctive relief commanding the defendants to award Plaintiff compensatory damages for the unnecessary emotional suffering, defamation of character,"8 and punitive damages of no "less than 7 million."

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On June 23, 2015, with this civil action pending, a jury convicted Mr. Ivory in federal court of conspiracy to distribute crack cocaine, possession with intent to distribute crack cocaine, and felon in possession of a firearm. The trial judge sentenced Mr. Ivory to 240 months in prison.9

On July 21, 2015, this court issued a Notice and Order to Show Cause (NOSC) to plaintiff requiring him to show why this action should not be dismissed for the following reasons: (1) his claim against defendant Platt is barred by judicial immunity, (2) his claim against defendant Opat is barred by prosecutorial immunity, (3) he failed to state a claim under § 1983;10 and (4) he could not use this § 1983 complaint to invalidate any state...

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