Lipsky v. Cronin
| Decision Date | 06 March 2023 |
| Docket Number | 5:22-CV-5039-LLP |
| Parties | DANIEL LIPSKY, Plaintiff, v. NATE CRONIN, BILL WAINMAN, MICHAEL CLOSE; and CITY OF HOT SPRINGS, SOUTH DAKOTA, Defendants. |
| Court | U.S. District Court — District of South Dakota |
Pending before the Court is a Motion to Dismiss Plaintiff, Mr. Daniel Lipsky's, complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure that was filed by Defendants Nate Cronin, Bill Wainman, Michael Close and City of Hot Springs South Dakota. (Doc. 6). For the following reasons Defendant's Motion to Dismiss is granted in part and denied in part.
The following facts appear in Mr. Lipsky's complaint and the exhibits attached to Mr. Lipsky's complaint. On December 17, 2019, Officer Cronin was working the overnight shift. (Doc. 1-1, Lipsky Discovery Packet, Arrest Report). (Id.). He was sitting stationary at the Y-L Saddlery along the Highway 18 bypass on the outskirts of Hot Springs, South Dakota, facing eastbound. (Id.). Around 2:18 a.m., he observed a semi-truck driven by Mr. Lipsky pass him on the Highway 18 bypass. (Id.). The semi-truck appeared to Officer Cronin to be travelling at a high rate of speed. (Id.). The speed limit for semi-trucks at that point was 35 miles per hour and for other vehicles, it was 55 miles per hour. (Id.).
At the top of Highway 18 was a brake check stop for trucks to test their brakes due to the grade of the hill. (Id.-, Doc. 1-1, 10-7-20 Lipsky Court Trial Transcript at 7:15-20). Initially, when Officer Cronin opened his radar, the speed of the semi-truck registered at 60 miles per hour. (Doc. 1 -1, Lipsky Discovery Packet, Arrest Report). Officer Cronin left his radar open and by the bottom of the hill at the junction of the bypass and Highway 71, he clocked Mr. Lipsky driving at 65 miles per hour. (Id.; Lipsky Court Trial Transcript at 9:12-17). Officer Cronin activated his emergency lights near the truck runaway on the Bypass. (Id.). The semi continued on at its speed and gradually started slowing down. (Id.). A small car passed Mr. Lipsky and Officer Cronin as they passed a residential neighborhood near S. River Street and S. Chicago Street. (Id.). That was the only vehicle in the area at the time. (Id.).
Mr. Lipsky came to a complete stop at the bottom of the bypass on Jensen's Highway across from the Dairy Queen. (Id.; Lipsky Court Trial Transcript at 9:4-7). Officer Cronin turned on his body camera when he exited his patrol vehicle, but it was cold outside and he zipped up his jacket, obscuring the camera. (Doc. 1-1, Lipsky Court Trial Transcript 12:3-12). When Officer Cronin began speaking with Mr. Lipsky, he thought him to be slurring his words and his eyes droopy. (Doc. 1-1, Lipsky Discovery Packet, Arrest Report). Officer Cronin advised Mr. Lipsky that he was stopped for speeding and had Mr. Lipsky come back to his patrol vehicle. (Docs. 1 at 5; 1-1, Arrest Report). When asked by Officer Cronin if he stopped at the brake check at the top of the bypass, Mr. Lipsky said that he could not remember. (Doc. 1-1, Arrest Report). Mr. Lipsky also said that he drove an automatic truck and that it was more difficult to control the speed on the downhills because he could not downshift. (Id.). Mr. Lipsky said that he had been on duty since the previous morning, but had only been driving for 9 hours, that he was still within his 14 hours of driving and wanted to keep going. (Doc. 1-1, Arrest Report). While talking, Officer Cronin observed Mr. Lipsky rubbing his face and eyes. (Doc. 1-1, Arrest Report). Officer Cronin's observations led him to believe that Mr. Lipsky was either too tired to drive or under the influence of some substance. (Docs. 1-1, Arrest Report).
Mr. Lipsky denied that he was driving while intoxicated or on drugs. (Docs. 1 at 5; 1-1, Arrest Report). Officer Cronin had Mr. Lipsky perform some field sobriety tests to see if he was okay to drive. (Doc. 1-1, Arrest Report). With the Horizontal Gaze Nystagmus Test (HGN), Officer Cronin observed lack of smooth pursuit and unequal tracking. (Id.). With the Alphabet A-Z test, Officer Cronin advised Mr. Lipsky that he was not to sing it, not to stop once started, and not to say the word “and” between Y and the letter Z. (Id.). During the exercise, Mr. Lipsky started singing halfway through but said all of the letters in order. (Id.). When Officer Cronin asked Mr. Lipsky to count backwards from 67-47, he was told not to stop once he had started. (Id.). Mr. Lipsky stated the sequence as follows: 67-66-65-64-63-62-61-60-59-58-57-56-54-5352-51-50-49-48-47. (Id.). During the Finger to Nose Test, Officer Cronin asked Mr. Lipsky to tip his head back multiple times, but each time Mr. Lipsky would pull his head back down. (Id.). On each finger Mr. Lipsky was unable to touch the tip of his nose like instructed and would touch near the bridge of his nose. (Id.). During the Modified Romberg Balance Test, Mr. Lipsky was asked to close his eyes, tilt his head back and count to 30. (Id.). Mr. Lipsky closed his eyes, but would not tilt his head back without pulling it back forward. (Id.). Mr. Lipsky counted to 30 in his head and pulled his head back down in only 8 actual seconds. (Id.). Officer Cronin observed that Mr. Lipsky had slight eye lid tremors and was swaying a lot. (Id.). During the walk and turn test, Mr. Lipsky missed heal to toe once during the first nine steps, was swaying side to side, and did not walk in a straight line but more at an angle, counted to the number 9, but only walked 8 steps. (Id.). Mr. Lipsky turned correctly, but during his second set of 9 steps, he walked at an angle, was swaying when he walked, missed heal to toe 2 times and was very rigid during the walk. (Id.). During the One Leg Stand test which involves Mr. Lipsky standing on one leg for 30 seconds, Mr. Lipsky was swaying side to side but did not lift his arms. (Id.). Mr. Lipsky took 40 real time seconds to get to the number 26 and Officer Cronin had Mr. Lipsky discontinue the test at the time. (Id.). Based on Officer Cronin's observations of Mr. Lipsky during the tests, he believed that Mr. Lipsky was impaired. (Doc. 1-1, Arrest Report).
Officer Cronin called his supervisor, Hot Springs Police Captain Bill Wainman to notify him of the situation and was advised to call a South Dakota Highway Patrol trooper for more guidance. (Doc. 1 -1, Arrest Report). Officer Cronin called the highway patrol and was transferred to a Sioux Falls Trooper who advised him to call a Drug Recognition Expert (DRE). (Doc. 1-1 at 6).
Officer Cronin read Mr. Lipsky his Miranda Warning and obtained Mr. Lipsky's consent to undergo a Drug Recognition Exam. (Doc. 1-1, Arrest Report). Mr. Lipsky then withdrew his consent. (Doc. 1-1, Arrest Report). According to the arrest report, Officer Cronin had Mr. Lipsky exit his truck, handcuffed him, searched his pockets, and placed Mr. Lipsky in the rear seat of his patrol car. (Doc. 1-1, Arrest Report). Officer Cronin searched Mr. Lipsky's wallet and observed a large amount of cash inside of it. (Doc. 1-1, Arrest Report). Approximately 30 minutes later, Captain Wainman arrived on the scene and instructed Officer Cronin to return the wallet to Mr. Lipsky. (Doc. 1 at 5; 1-1). Mr. Lipsky alleges that when his wallet was returned, two one-hundred dollar bills were missing. (Doc. 1 at 5).
Officer Cronin did a search and inventory of the cab of the truck. (Doc. 1 -1, Arrest Report). During his search, Officer Cronin observed a small quantity of a white crystal substance. (Doc. 11 at 7). The field test kit utilized by Officer Cronin on the white crystal substance tested negative for methamphetamine, but turned an odd reddish color. (Doc. 1-1, Arrest Report). Officer Cronin used his fingers to place the substance in an evidence bag and picked up the trace amounts with a lint roller. (Doc. 1-1, Arrest Report). The unidentified substance was sent to the State Health Lab for further testing. (Doc. 1-1, Arrest Report). Officer Cronin found 2 green bottles in the cab, one labeled melatonin and the other labeled Vitamin C and later placed those bottles into evidence. (Doc. 1-1, Arrest Report).
Mr. Lipsky was transported to the Hot Springs Police Department where he was given a breathalyzer which registered 0.00. (Doc. 1 at 5). Mr. Lipsky's urine and blood samples were sealed and mailed to the State Health Lab for further testing. (Docs. 1 at 5; 1-1).
Officer Cronin called Fall River Clerk Magistrate, Carol Foster, and notified her that Mr. Lipsky was being charged with DUI in violation of SDCL § 32-23-1, speeding in violation of SDCL § 32-25-7, and reckless driving in violation of SDCL § 32-24-1. (Doc. 1-1, Arrest Report). Ms. Foster set the bond at $10,000 and Officer Cronin notified Mr. Lipsky and the jailer of the bond and the charges. (Zd).
Mr. Lipsky underwent a DRE evaluation test at around 5:15 a.m., approximately 2 hours after he was contacted by Officer Cronin. (Doc. 1-1, DRE Report). Officer Cronin videotaped and observed the DRE exam and spoke to the evaluator after the exam concluded at 6:00 a.m. (Id.). In his report, the DRE evaluator opined that Mr. Lipsky “was not currently under the influence of a drug which would cause him to be grossly impaired and unsafe to operate a motor vehicle at the time the evaluation was conducted approximately 2 hours after Officer' Cronin's first contact with Lipsky.” (Id.).
It is alleged that Mr. Lipsky remained in jail for at least 8 hours. (Docs. 1; 1-1, Lipsky Court Trial Transcript at 13:6-11, 24:19-22). Officer Cronin's arrest report listed Mr. Lipsky's offenses at DUI in violation of SDCL § 32-23-1, speeding in...
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