Jones v. Town of Seaford, Del.

• Decision Date: 15 April 1987
• Docket Number: Civ. A. No. 86-103-JJF.
• Citation: 661 F. Supp. 864
• Parties: Sam H. JONES, Jr., Plaintiff, v. The TOWN OF SEAFORD, DELAWARE, Charles W. Pugh and Robert Lee, Defendants.
• Court: U.S. District Court — District of Delaware

661 F. Supp. 864

Sam H. JONES, Jr., Plaintiff, v. The TOWN OF SEAFORD, DELAWARE, Charles W. Pugh and Robert Lee, Defendants.

Civ. A. No. 86-103-JJF.

United States District Court, D. Delaware.

April 15, 1987.

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Edward C. Gill, of Robert C. Wolhar & Associates, Georgetown, Del., for plaintiff.

Stephen P. Casarino, of Tybout, Redfearn, Casarino & Pell, Wilmington, Del., for defendants.

OPINION

FARNAN, District Judge.

Plaintiff Sam H. Jones, Jr., brought this civil rights damages action against Sergeant Charles W. Pugh and Officer Robert Lee, two members of the Seaford Police Department, alleging various violations of his constitutional rights.¹ The alleged violations flow from the defendants' application for a search warrant, the search of Jones' business pursuant to the warrant, and Jones' ensuing arrest. These alleged deprivations of plaintiff's Fourth and Fourteenth Amendment rights under the United States Constitution form the predicate for this § 1983 action which was filed against Sergeant Pugh and Officer Lee, individually and in their official capacities.² Plaintiff has also included in his Complaint pendent state law claims for false imprisonment, illegal arrest, and trespass.

Presently before the Court is Defendants' Motion for Summary Judgment. In support of this Motion, Sergeant Pugh and Officer Lee contend that no constitutional violation occurred since probable cause existed to support the issuance of the search warrant. In the alternative, the officers assert the defense of qualified immunity.

I. FACTS AND CONTENTIONS.

The following facts are not in dispute. In late January and early February of 1984, members of the Seaford Police Department investigated two burglaries that occurred at Abraxas Records & Tapes ("Abraxas"). The first burglary, which occurred on January 24, 1984, was investigated by Sergeant Roger A. Griffith. According to Sergeant Pugh, Sergeant Griffith related to him that, during the course of Griffith's burglary investigation, he had observed items of drug paraphernalia displayed for sale in Abraxas. Sergeant Pugh's first eyewitness view of these items occurred approximately one month later, in February, 1984, when he investigated a second burglary at Abraxas. Sergeant Pugh states that during his investigation of the second burglary he personally observed what he characterized as "numerous bongs, hash pipes, rolling papers and screens." Docket Entry ("D.E.") # 19.

After the second burglary investigation, Sergeant Pugh and Officer Lee discussed the observations of Sergeants Griffith and Pugh in light of Delaware's recently enacted Drug Paraphernalia Law, 16 Del.Code Ann. § 4771-4775 (Supp.1982), and the possibility of obtaining a search warrant for the Abraxas premises. D.E. # 23 — Affidavit of Charles W. Pugh, at 12; D.E. # 24 — Affidavit of Robert Lee, at 13. However, before applying for a search warrant, the officers discussed the Drug Paraphernalia Law with a Delaware Deputy Attorney General, and the issue of whether the items viewed during the two burglary investigations fell within the terms of that statute, and the sufficiency of the application for the warrant as it related to the question of probable cause. D.E. # 23 — Affidavit of Charles W. Pugh, at 12-15; D.E. # 24 — Affidavit of Robert Lee, at 13-16.

A. The Search Warrant Application and Affidavit.

After their discussion with the Deputy Attorney General, the two officers drafted an affidavit for a search warrant. The affidavit set forth information derived from the personal observations of Sergeant Pugh and Officer Lee. Sergeant Pugh and Officer Lee then submitted the search warrant application and affidavit to a state magistrate, Aubrey Hudson. The affidavit in support of the search warrant stated the following:

PROBABLE CAUSE SHEET

1. Your affiant # 1 is Detective Sergeant Charles W. Pugh of the Seaford Police Department. Sergeant Pugh has been a member of the Seaford Police Department for approximately eleven years and has been assigned to the Criminal Investigation Section for approximately six years. During this time, Sergeant Pugh has participated in numerous drug investigations, many of which he has headed the investigation (sic). Sergeant Pugh has attended and successfully completed several courses of drug identification and investigations conducted by both Federal and State Agencies.

2. Your affiant # 2 is Detective Robert Lee of the Seaford Police Department. Detective Lee has been a member of the Seaford Police Department for approximately six years and has been assigned to Criminal Investigation Section for approximately four years. During this time, Detective Lee has participated in numerous drug investigations and has also attended and successfully completed numerous schools on drug identification conducted at both Federal and State levels.

3. Your affiants can state that Samuel H. Jones, Jr. B/M, D.O.B. 4-12-53 is the owner and manager of Abraxas Records & Tapes, 330 High Street, Seaford, DE.

4. Your affiants can state that a check of the City of Seaford electric company records shows Samuel H. Jones, Jr. as having the electric service in his name at 330 High Street, Seaford, DE.

5. Your affiants can state that police records reveal that Samuel H. Jones, Jr. is the owner of Abraxas Records & Tapes.

6. Your affiants can state that on October 31, 1980, they participated in the arrest of Samuel H. Jones, Jr. During this arrest the premises of Abraxas Records & Tapes, 330 High Street, Seaford, DE, was searched of which your affiants participated (sic). During this search it was found that there was numerous items of drug paraphernalia in the business for sale (sic). These items included bongs, hash pipes, test kits and roach clips.

7. Your affiants can state that Sunday, January 29, 1984, Sergeant Roger A. Griffith of the Seaford Police Department investigated a burglary at Abraxas Records & Tapes. During the course of his investigation, Sergeant Griffith observed in display cases for sale, items of drug paraphernalia including bongs, hash pipes, and screens.

8. On Friday, February 28, 1984, affiant # 1 investigated another burglary at Abraxas Records & Tapes. During the course of this investigation, numerous bongs, hash pipes, rolling papers and screens were observed.

9. Your affiants can state that to their knowledge Samuel H. Jones, Jr. or Abraxas Records & Tapes is not a licensed distributor or dealer of tobacco products.

10. Your affiants can state that through their experience in investigating drug cases and their knowledge of all aspects relating to that environment, the articles that have been described previously in paragraphs 6, 7 & 8 are displayed for sale at Abraxas Records & Tapes, are intended to be used with controlled substances as identified in Title 16 of the Delaware Code.

11. Your affiants pray for the issuance of the search warrant to search the premises of Abraxas Records & Tapes to remove the drug paraphernalia mentioned previously.

D.E. # 19 — Probable Cause Sheet and Additional Probable Cause Sheet, at A-3, A-4.

On March 16, 1984, Magistrate Hudson signed and issued a warrant to search the premises of Abraxas Records and Tapes, located at 330 High Street, Seaford, Delaware.

B. The Search.

The warrant authorized law enforcement officers to search for any and all drug paraphernalia as enumerated in 16 Del. Code Ann. § 4701(13)(a)-(l) (1974 and Supp.1986). The warrant also authorized the search and seizure of business records pertaining to the sale and procurement of drug paraphernalia, and cartons and containers used for the storage, display, or sale of drug paraphernalia.

Sergeant Pugh and Officer Lee executed the search warrant on March 16, 1984. Numerous items were seized from the store. Among the items seized were assorted packs of rolling papers, glass tubes, wooden pipes, wood and brass pipes, and stone pipes. In addition, Sergeant Pugh and Officer Lee seized numerous water pipes in sizes ranging from six and one-half to seventeen and one-half inches in height, some of which contained double or triple chambers. Also listed on the search warrant return are items that the officers characterized as bongs. The officers also seized one alligator-shaped water pipe/bong and one water pipe/bong in the shape of a man. A black rubber stopper connected to a red hose, an apparatus which plaintiff described as an integral part of a Syrian-type water pipe, was also seized. The defendants also seized business records listing the names of persons who had purchased items in the store. Miscellaneous items such as metal pipe bowls, screws and pipe screens comprised the remainder of the seized objects.

C. The Arrest.

Jones was not arrested at the time of the search. Instead, the police officers instructed him to report to the police station the following Monday morning, at which time he was arrested and charged with possession of drug paraphernalia with intent to deliver, a violation of 16 Del.Code Ann. § 4772. These charges against Jones were ultimately nolle prosequied. D.I. # 1 — Complaint, ¶ 11. The record in this case does not provide a reason for the decision by the Delaware Attorney General to terminate the prosecution against Jones.

II. ANALYSIS.

A. Standard for Summary Judgment.

The Court may properly enter summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial responsibility of identifying those portions of the relevant documents which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, ___ U.S. ___, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). But when a motion for summary judgment is made and adequately...