Kost v. Cotto
| Decision Date | 05 May 2020 |
| Docket Number | 1:19-CV-25-RP |
| Citation | 458 F.Supp.3d 571 |
| Parties | Thomas KOST, Plaintiff, v. Ricky COTTO, Defendant. |
| Court | U.S. District Court — Western District of Texas |
Millie L. Thompson, Law Office of Millie L. Thompson, Austin, TX, for Plaintiff.
Seth Byron Dennis, Attorney General's Office, Austin, TX, for Defendant.
Before the Court is Defendant Ricky Cotto's ("Cotto") motion for summary judgment, (Dkt. 16), and associated briefing (Resp., Dkt. 19; Reply, Dkt. 21). After considering the parties' arguments, the facts in the record, and the relevant law, the Court denies Cotto's motion.
This case arises from a traffic stop during which Cotto, a Texas Department of Public Safety patrol officer, detained Plaintiff Thomas Kost ("Kost") on the side of the highway. (Compl., Dkt. 1, at 2–7). Kost alleges that Cotto unreasonably searched and seized him "without reasonable suspicion and without probable cause, violating the Fourth Amendment." (Id. at 7). Kost brings claims under 42 U.S.C. § 1983, seeking a declaratory judgment under 42 U.S.C. § 1988 that Cotto violated his constitutional rights as well as compensatory and punitive damages. (Id. at 8–9). Cotto, in response, maintains that his actions were objectively reasonable under clearly established law, entitling him to qualified immunity. (Mot. Summ. J., Dkt. 16, at 4–8).1
Cotto was wearing a body camera which recorded the entire traffic stop with clear video and sound. The parties do not dispute that the recording is accurate.2 (Mot. Summ. J., Dkt. 16, at 2 (); Resp. Mot. Summ. J., Dkt. 19, at 1 ()); see generally Scott v. Harris , 550 U.S. 372, 378–81, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (). Cotto was aware the camera was recording. (See Body Camera Recording, Def.'s Ex. 2, Dkt. 16-3, at 26:19 (Cotto repeatedly taps camera when speaking with other officers)). Cotto appears to have been wearing the camera on his torso. The recording was taken at night, but the area it depicts is well-lit from several light sources including Cotto's car lights and flashlight. (See Mot. Summ. J., Dkt. 16, at 2 (); cf. Cotto Aff., Def.'s Ex. 1, Dkt. 16-2, at 2 ()).
Kost was riding his motorcycle from Georgetown to his home in Pflugerville on the night of May 22, 2018, when Cotto pulled him over. (Mot. Summ. J., Dkt. 16, at 1). Kost was traveling at about 90 m.p.h. on a road with a speed limit of 80 m.p.h. (Id. ). Cotto did not notice anything that seemed suspicious to him about the way in which Kost pulled over, Kost's position on his motorcycle after stopping, or the way in which Kost got off his motorcycle. (Cotto Dep., Pl.'s Ex. 3A, Dkt. 19-3, at 1:30–1:51, 4:24–4:40). An unnamed officer accompanied Cotto throughout the stop and approached Kost alongside Cotto—a salient fact Cotto omits from his motion.3 (Body Camera Recording, Def.'s Ex. 2, Dkt. 16-3; Mot. Summ. J., Dkt. 16, at 2–3).
After Cotto pulled Kost over, he stopped his car about one or two car lengths behind Kost on the right side of the road.4 (Body Camera Recording, Def.'s Ex. 2, at 0:45). Cotto, Kost, and their vehicles were each in the paved strip of the road separated by a solid line from the main roadway, with tall grass to the right. (Id. ). Cotto ordered Kost to get off the motorcycle, take off his helmet, and stand in a certain place next to the tall grass by the side of the road, each of which Kost promptly did, verbally acknowledging Cotto's orders. (Id. at 0:41–1:06). Kost stood several feet in front and to the right of his motorcycle, facing Cotto. (Id. at 1:12). Cotto stood in front of Kost, facing him, with a clear view of the motorcycle behind Kost to the left.
Kost was wearing a short-sleeved polo shirt that extended over his waistline, a leather vest with several patches, and somewhat baggy jeans. (Id. ). Kost's gaze was generally directed in Cotto's direction, though he looked over at the other officer when the latter walked near him. (Id. at 1:01–1:12). Kost's face and body were illuminated by bright light from Cotto's car's headlights, Cotto's flashlight, the unnamed officer's flashlight, or streetlights further down the road. (Id. ). Cotto asked Kost if he had a driver's license; Kost answered "yes, sir," reached into his pocket, and pulled out his wallet, removing the driver's license. (Id. at 1:09–1:17). Cotto ordered Kost to "give me that," referring to the license. (Id. ). Cotto then asked Kost a series of questions concerning his destination, his insurance, the speed limit, his motorcycle club,5 whether Kost had been drinking, Kost's past arrest decades ago, and whether Kost had any contraband on his person or his motorcycle. (Id. at 1:17–3:08). Cotto also asked for Kost's insurance card, (id. at 1:43), and stated that Kost's eyes appeared "glassy," (id. at 2:32).6
At various points during this interaction, Kost looked away from Cotto and toward the unnamed officer when the latter was standing close to him and moved. (See, e.g., id. at 1:23, 1:38, 2:10, 2:20). Kost tended to look at the unnamed officer when responding to the unnamed officer's questions or after answering one of Cotto's questions. (See, e.g., id. at 1:25). Kost also looked away from Cotto soon after a car or truck loudly passed nearby. (See, e.g., id. at 1:38). At times, Kost also glanced away from Cotto in a manner consistent with typical conversational mannerisms. For instance, Kost looked up, as if in thought, when recalling the speed limit, estimating the time since he had last consumed alcohol, recalling how long he had been awake that day, and recalling the details of a time he had been arrested decades ago, each in response to Cotto's questions. (Id. at 2:02, 2:18, 2:32, 2:42, 2:57). Kost occasionally looked at the unnamed officer after answering Cotto's questions; often, the unnamed officer cocked his head or smiled to acknowledge Kost's glance. (See, e.g., id. at 3:01, 3:14). Kost also looked away from Cotto when retrieving documents from his wallet. (See, e.g. , 1:42). And Kost looked away from Cotto, for about three seconds, after Cotto asked him why he was "rolling so fast." (Id. at 1:53–1:56). For nearly all of the remaining period of this portion of their interaction, though, the recording shows that Kost's gaze was firmly directed in Cotto's direction. When Kost did look away from Cotto, he rarely turned to look at his motorcycle, which was generally behind him.
Cotto then asked Kost if he "had any objections to [Cotto] searching the motorcycle." (Id. at 3:11). Kost moved his eyes back and forth, as if in thought, and responded that "I don't consent to any searches, but there's nothing, nothing illegal." (Id. at 3:14). Cotto then told Kost to wait where he was, approached the motorcycle with his flashlight, and looked at it from various angles. (Id. at 3:25–3:44). The unnamed officer can be heard asking Kost if he "was a part of that, at Waco" and if he knew anyone involved in that incident, to which Kost responds that he "had some friends who were there."7 (Id. ).
Next, Cotto asked Kost if he had any weapons on his person. (Id. at 3:45). Kost replied "no." (Id. at 3:46). The unnamed officer was standing a few feet from Kost. (Id. ). Cotto told Kost he would pat him down for weapons "to keep the scene safe." (Id. at 3:50). Kost immediately raised his hands in the air. (Id. at 3:51). Cotto ordered Kost to turn around and put his hands on his head, which Kost immediately did. (Id. at 3:51–3:56). Cotto patted Kost's left front pocket and asked him again if there were any weapons on the motorcycle. (Id. at 4:08). Kost volunteered that he had a pocketknife; when Cotto asked where it was, Kost replied that it was in his right front vest pocket. (Id. at 4:09–4:12). Cotto continued to pat Kost's left front vest pocket and legs. (Id. at 4:13–4:22). Feeling something on Kost's person, Cotto asked him what it was. (Id. at 4:20). Kost answered that "it's different things, it's not a weapon." (Id. at 4:22). Cotto then said "it feels like it could be a weapon" and asked Kost to "pull that out, because I'm not too comfortable with that." (Id. at 4:25–4:31; cf. Cotto Aff., Def.'s Ex. 1, Dkt. 16-2, at 2 ( )). The unnamed officer approached Kost and stood a few feet away from him with his hand on his gun. (Body Camera Recording, Def.'s Ex. 2, at 4:25–4:31). Cotto allowed Kost to step away, turn around, and begin opening his right front vest pocket, reiterating that he was "not too comfortable." (Id. at 4:32–4:37). The unnamed officer, standing behind Kost and to his right, removed his gun from its holster. (Id. at 4:38). Kost pulled out the contents of his right front vest pocket and the unnamed officer put away his gun. (Id. at 4:39–4:43). Kost explained that it was "just a condom and a coozie," showing them to Cotto as Cotto shined his flashlight on them. (Id. at 4:43–45).
Cotto then continued to pat Kost's vest pockets, asking him what was in his left front vest pocket. (Id. at 4:48–4:50). Kost, replacing the items he had removed from his right front vest pocket, said it was "like, my glasses, and a couple other sundry things." (Id. at 4:54–4:56). Unprompted, and without objection by Cotto, Kost reached into his pocket and removed the objects, a glasses case and a pocket-sized copy of the Constitution and the Declaration of Independence. (Id. at 5:00–5:08). Cotto asked what they were, acknowledged the answer, and continued patting Cotto's left front vest pocket and legs. (Id. at 5:06–5:08). Cotto then ordered Kost to wait where he...
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Williams v. Johnson Cnty.
...recording while addressing his evidence as to whether there existed reasonable suspicion and probable cause. See, e.g., Kost v. Cotto, 458 F.Supp.3d 571, 583-84 (W.D. Tex. 2020) (“In analyzing whether Cotto's actions were objectively reasonable for the purposes of summary judgment, the Cour......