Lucero v. Bush

Decision Date01 September 2010
Docket NumberNo. CIV. 09-5063-JLV,CIV. 09-5063-JLV
Citation737 F.Supp.2d 992
PartiesChery A. LUCERO, Plaintiff, v. James G. BUSH, Chief of Police, Sturgis Police Department, individually and in his official capacity; Officer Michelle Boehrs, individually and in her official capacity; Officer Bill Bushong, individually and in his official capacity; and City of Sturgis, Defendants.
CourtU.S. District Court — District of South Dakota

Elizabeth M. Frederick, Elizabeth M. Frederick Law Office, Rapid City, SD, for Plaintiff.

John Stanton Dorsey, Whiting Hagg Hagg Dorsey & Hagg, LLP, Rapid City, SD, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

JEFFREY L. VIKEN, District Judge.

I. INTRODUCTION 997
II. STANDARD OF REVIEW 997
III. FACTS AND PROCEDURAL HISTORY 998
IV. DISCUSSION 1002
A. QUALIFIED IMMUNITY 1002
B. LAW ON PAT-DOWN SEARCH 1004
C. PAT-DOWN SEARCH OF CHERY LUCERO 1004
D. LAW ON STRIP SEARCHES 1006
E. STRIP SEARCH OF CHERY LUCERO 1007
F. LAW ON BODY CAVITY SEARCHES 1008
G. BODY CAVITY SEARCH OF CHERY LUCERO 1009
H. CITY OF STURGIS 1010
I. NEGLIGENCE CLAIM 1012
V. ORDER 1013

I. INTRODUCTION

Plaintiff's amended complaint alleges her Fourth Amendment constitutional rights were violated as the result of a pat-down search and subsequent body cavity searches conducted by Sturgis Police Officer Michelle Boehrs on August 5, 2006. (Docket 22). The amended complaint also asserts claims of negligent hiring, training, and supervision against Police Chief James G. Bush, Police Officer Bill Bushong, and the City of Sturgis, South Dakota. Id. Defendants' answer denies the significant allegations of plaintiff's amended complaint and asserts (1) the individual defendants are entitled to qualified immunity and (2) the claim against the City of Sturgis is barred by the statute of limitations. (Docket 23). Following completion of discovery, defendants filed a motion for summary judgment. (Docket 24). Briefing by the parties has been completed and the motion is ripe for resolution.

I. STANDARD OF REVIEW

Under Fed.R.Civ.P. 56(c), a movant is entitled to summary judgment if the movant can "show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2). Once the moving party has met its burden, the nonmoving party may not rest on the allegations or denials in the pleadings, but rather must produce affirmative evidence setting forth specific facts showing a genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Only disputes over facts that might affect the outcome of the case under the governing substantive law will properly preclude summary judgment. Id. at 248, 106 S.Ct. 2505. Accordingly, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id. at 247-48, 106 S.Ct. 2505 (emphasis in original).

If a dispute about a material fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party, then summary judgment is not appropriate. Id. However, the moving party is entitled to judgment as a matter of law if the nonmoving party has failed to "make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In such a case, "there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323, 106 S.Ct. 2548.

In determining whether summary judgment should issue, the facts and inferences from those facts must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In order to withstand a motion for summary judgment, the nonmoving party "must substantiate [her] allegations with 'sufficient probative evidence [that] would permit a finding in [her] favor on more than merespeculation, conjecture, or fantasy.' " Moody v. St. Charles County, 23 F.3d 1410, 1412 (8th Cir.1994) (citing Gregory v. Rogers, 974 F.2d 1006, 1010 (8th Cir.1992), cert. denied, 507 U.S. 913, 113 S.Ct. 1265, 122 L.Ed.2d 661 (1993)). "A mere scintilla of evidence is insufficient to avoid summary judgment." Moody, 23 F.3d at 1412. The key inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.

III. FACTS AND PROCEDURAL HISTORY

The undisputed material facts are gathered from plaintiff's amended complaint (Docket 22), defendants' answer to the amended complaint (Docket 23) 1, defendants' statement of undisputed material facts (Docket 26), plaintiff's statement of disputed and undisputed material facts (Docket 30), and plaintiff's objections to defendants' statement of material facts (Docket 31). Other citations to the record will be made where appropriate.

On August 5, 2006, plaintiff Chery A. Lucero was visiting Sturgis, South Dakota, during the Sturgis Rally.2 (Docket 22 at # 2). A pickup was being driven by her husband, Ernie, and the other passengers included her husband's cousin, Ronald, her husband's uncle, Nester, and her father-in-law, Lupe.3 (Docket 26 at # 1). The pickup was a full size four-door Ford, with a bench front seat. Id. The pickup had a popup camper on the back. Id.

Chery was sitting in the center of the front seat and the cup holder in front of her held an open beer container. Id. at # 2. Traffic was heavy, bumper-to-bumper, and the pickup, with the windows down, was moving through town at a couple of miles an hour. Id. at # 3. Foot patrol officers observed the open beer container and directed the vehicle to pull over. Id. Officer Bill Bushong was the team leader for the foot patrol team. Id. The occupants of the pickup were told they were being pulled over for having an open container. Id. According to the incident report which logs dispatch calls, the stop of the pickup occurred at 4:50 p.m. Id.

Ronald was asked to step outside of the vehicle, and the others stayed in the pickup until they were asked by the officers to get out. Id. at # 5. Chery was "within the wingspan" of Ronald, who had been seated behind the driver. Id. at # 4.

During a pat-down search of Ronald, Officer Bushong removed a knife from Ronald's pocket. Id. at # 6; see also Docket 27-1, p. 5. During the pat-down, Officer Bushong felt a wad of paper currency in Ronald's left pocket, along with a Chapstick. (Docket 26 at # 7).4 Whenasked what was in his pocket, Ronald was "very nervous, he kept putting his hand into that pocket." Id. Officer Bushong's testimony described the following:

A. And I asked him, "Sir, please don't put your hand in your pocket." And he removed his hand, and then—then again he went into his pocket and he just stuck his hand in his pocket like he was gripping something in his hand.
Q. Were you concerned at that point?
A. I was concerned at that point, and I said, "Sir, what are you doing? What are you doing?" And I asked him to pull his hand out. He took his hand out, and then he—I asked him, "Would you just please empty your pocket out." And when he emptied his pocket out quite a bit of white powder substance dumped out of his pocket and onto the concrete. And then he had a handful of cash, one dollar bills, and looking at the currency what he had was [sic] he had a white powdery substance folded in a one dollar bill.
Q. In a bindle, so to speak?
A. A bindle, yes.
Q. What did you believe that substance to be?
A. Cocaine.

Id. When asked what the substance was, Ronald acknowledged it to be cocaine. Id. at # 8. Officer Bushong wrote Ronald a citation for possession of a controlled substance. Id.

After some time, the other occupants were asked to get out of the vehicle. (Docket 27-7, p. 50). Chery and her husband, Ernie, went over to the curb side of the pickup about twelve to fifteen feet away. Id. Ernie then walked back toward the officers asking "what's going on." (Docket 27-8, p. 51). The officers directed Ernie to go back to the general area where Chery, Lupe, and Nester were standing. Id. The four of them remained together by the curb, "almost in the crowd." Id. at p. 63. They were never told not to leave. Id. at p. 64.

Because of the admission by Ronald, Officer Adam Martin was dispatched to the area shortly after 5 p.m. for a "K9 Deployment." (Docket 26 at # 9). Officer Martin was a certified narcotics and drug detection police service dog handler with the Sturgis Police Department. Id. Officer Martin photographed the white substance and field tested it. Id. The substance tested positive for cocaine. Id. at # 11.

Detective Drew Grotti was called to the scene and arrived shortly after Officer Martin. Id. at # 10. Detective Grotti was the drug detective for the City of Sturgis. Id. Detective Grotti spoke with Officer Bushong and then spoke with Ronald after reading him his Miranda5 rights. Id. Ronald told the detective that the substance was cocaine and he had last used it two days before. Id. Ronald also told the detective he had used marijuana the night before and maybe a few days earlier. Id.

Officer Martin showed the positive field test to Detective Grotti. Id. at # 12. Officer Martin used his trained dog to conduct an exterior sniff of the pickup since Ronald had admitted the white substance was cocaine. Id. at # 9. The drug dog sniffed the exterior of the truck and gave a positive alert at the door to the camper topper on the pickup. Id. # 12. A thorough search of the vehicle revealed no additional contraband. (Docket 22 at # 7). According to...

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