North Carolina ex rel. Haywood v. Barrington, 1:02CV74.

• Decision Date: 11 April 2003
• Docket Number: No. 1:02CV74.,1:02CV74.
• Citation: 256 F.Supp.2d 452
• Court: U.S. District Court — Middle District of North Carolina
• Parties: State of NORTH CAROLINA ex rel. Rachel A. HAYWOOD, Plaintiff, v. M.R. BARRINGTON, Deputy Sheriff, individually and in his official capacity; Robert George, Deputy Sheriff, individually and in his official capacity; Jeff Jordan, Sheriff of Montgomery County, in his official capacity; Fidelity and Deposit Company of Maryland, Surety; and Montgomery County, Defendants.

256 F.Supp.2d 452

State of NORTH CAROLINA ex rel. Rachel A. HAYWOOD, Plaintiff, v.M.R. BARRINGTON, Deputy Sheriff, individually and in his official capacity; Robert George, Deputy Sheriff, individually and in his official capacity; Jeff Jordan, Sheriff of Montgomery County, in his official capacity; Fidelity and Deposit Company of Maryland, Surety; and Montgomery County, Defendants.

No. 1:02CV74.

United States District Court, M.D. North Carolina.

April 11, 2003.

Romallus O. Murphy, Greensboro, for State of North Carolina, ex rel, Rachel A. Haywood, plaintiff.

Tyrus Vance Dahl, Jr., Rachel E. Daly, Womble Carlyle Sandridge & Rice, Winston-Salem, for M.R. Barrington, Deputy Sheriff, individually and in his official capacity, Robert George, Deputy Sheriff, individually and in his official capacity, Jeff Jordan, Sheriff of Montgomery County, in his official capacity, Fidelity and Deposit Company of Maryland, Surety, Montgomery County, defendants.

ORDER

DIXON, United States Magistrate Judge.

This matter comes before the court on Defendants' Motion for Summary Judgment[Doc. #11] and Defendants' Motion to Strike Plaintiffs Response to Defendants' Motion for Summary Judgment[Doc. # 22].PlaintiffRachel A. Haywood, who filed this action pursuant to 42 U.S.C. § 1983, alleging violations of her due process rights in connection with the seizure of $4,709.09 in currency, has responded.The parties have consented to the jurisdiction of a magistrate judge under 28 U.S.C. § 636(c).In this posture, the matter is ripe for disposition.

I.Factual Summary¹

Prior to December 28, 2000, the Montgomery County Sheriffs Office received numerous complaints from citizens indicating that Haywood was selling crack cocaine from her home located at 339 Northview Road in Mount Gilead, North Carolina.(GeorgeAff. ¶ 2;JordanAff. ¶ 2;BarringtonAff. ¶ 4).A trustworthy confidential informant ("CI") with a lengthy history of providing reliable information to law enforcement officials in connection with drug interdiction operations also advised deputy sheriff Barrington that Haywood was selling crack cocaine from her home.(BarringtonAff. ¶ 2).On December 28, 2000, the CI was dispatched by Barrington to attempt to make a "controlled buy" of crack cocaine from Haywood at her home.The CI returned from Haywood's residence with 0.4 grams of crack cocaine and confirmed that he had purchased this cocaine from Haywood.He further relayed that Haywood had additional quantities of crack cocaine located in her home.(BarringtonAff. ¶ 3).

Based upon the results of this controlled buy and other reliable information, Barrington determined that there was probable cause to believe that Haywood was selling controlled substances from her home.(BarringtonAff. ¶ 5).Accordingly, Barrington sought and obtained a search warrant from Magistrate Linda Hacker on December 29, 2000.(BarringtonAff. ¶ 5).After obtaining this search warrant, Barrington and deputy sheriff George returned to Haywood's residence with officers from the Montgomery County Sheriffs Department and the Mount Gilead Police Department to execute the search warrant.(GeorgeAff. ¶ 3;BarringtonAff. ¶ 6).Upon entering Haywood's home, law enforcement officers found Haywood in the process of flushing rocks of crack cocaine down the commode.A search of Haywood's person revealed additional quantities of crack cocaine in her dress pockets.Various other items of drug paraphernalia were found inside Haywood's residence, along with $4709.09 in cash.(GeorgeAff. ¶¶ 3-4).These items were then seized by law enforcement officers.Haywood was given a receipt for each item seized from her residence, including the $4709.09 in cash.(GeorgeAff. ¶ 3).

Due to her age (approximately 62) and poor health, Haywood was not immediately arrested.Haywood was given the opportunity to consider cooperating with the Montgomery County Vice Unit in connection with further drug interdiction efforts.Haywood was advised of her Miranda rights, which she waived, and she voluntarily spoke to officers about her drug sales.(GeorgeAff. ¶ 4).She was "permitted to turn herself in to authorities," and to sign a typewritten copy of her statement, on the following Monday, January 3, 2001.(BarringtonAff. ¶ 7;JordanAff. ¶ 5;seeGeorgeAff. ¶ 4).The statement, as signed, included typed text as well as corrections and additions in hand writing initialed by officer George.The statement read, in part:

Ms Haywood stated she started out purchasing 1/4 ounce quantites [sic] of crack cocaine every month or so.She decided she did not want to tell officers who she was purchasing it from.In early part March—or April—2000, Ms Haywood began purchaing [sic] 1/4 ounce quantites [sic] every two weeks for $300.Ms Haywood also chose not to give the name of her source of crack cocaine.Ms Haywood stated she always purchase [sic] the cocaine already "cooked up" and she cuts it into pieces for sell, [sic]

Ms Haywood stated she continued this amount during 2000, Ms Haywood stated she purchased the last ounce either Monday or Tuesday of this week. ...Ms Haywood stated she recooks the "cocaine crumbs" back into a larger amount.Ms Haywood then recuts the crack cocaine into individual $20 pieces.Ms Haywood stated she only started selling again due to needing extra money for the bills.Ms Haywood stated she only sells pieces.Ms Haywood stated she kept telling her husband she needs to stop selling before she gets caught.Ms Haywood stated she prayed to GOD to help her quit but each time she need a little bit more money. ...

(George Aff., Ex. B)(spelling, emphasis, and punctuation as in original).

The investigation, search and seizure in connection with Haywood's drag activities was part of a "joint investigation and administrative forfeiture" between the Montgomery County Sheriffs Office and the United States Customs Service.(JordanAff. ¶ 6).²Prior to the search and seizure, "as part of an on-going investigation of drug related activity in Montgomery County by the U.S. Customs Service," George contacted Janis Dinschel, an agent with the Customs Service, "about information they had from numerous sources that Rachel Haywood was selling crack cocaine from her house."(DinschelAff. ¶ 3)."It was believed that Ms. Haywood was being supplied by a more significant target in the U.S. Customs' investigation."(DinschelAff. ¶ 3).After the execution of the search warrant of Haywood's residence, officer George asked Dinschel if he would accept the case as part of a Customs Service investigation into Haywood's supplier.Having worked with officer George and the Montgomery County Sheriffs Office for approximately seven years on federal forfeitures of illegal drug-related assets, Dinschel "routinely" provided officer George with U.S. Customs "Abandonment and Assent to Forfeiture" forms in the event Dinschel was not available when a seizure took place.(DinschelAff. ¶¶ 2 & 4).

At some point on or after January 3, 2001, officer George filled out a Customs Service "Abandonment and Assent to Forfeiture" form with regard to the seizure of personal property from the residence of Haywood.The form includes the seal of the United States Customs Service, and includes a caption with the Customs Service office address in Charlotte, North Carolina.The form is typewritten and includes blanks in which handwritten information may be added.The form states, with handwritten content indicated here with underscore:

On JANUARY 11, 2001 at approximately 1300 U.S. Customs Special Agents assigned to the Office of the Resident Agent in Charge, Charlotte, North Carolina, seized/retained merchandise as documented on Customs Form 6051, Number 1332060.This merchandise was seized as evidence of violations of 18 USC 1956(MONEY LAUNDERING) + 18 USC 981(DRUG PROCEEDS) + 21 USC 881.

As the owner of this merchandise, I RACHEL HAYWOOD waive any and all right to this merchandise, including the right to file a petition for mitigation, and hereby abandon said merchandise to the U.S. Customs Service for appropriate disposition.

(Pl's Br. in Resp., Ex. 2).Immediately following this text there is a space for "Signature of Owner."In this space there is a handwritten signature "Rachel Haywood," followed by a date "1-3-2001."The "3" in the date was written over a "2".Following the signature line there are two spaces for Haywood's street address, which are filled out in printed handwriting.Finally there are two spaces for the signature and title of two witnesses.Officer George signed his name and title as a single witness.The second witness space was left blank.

Haywood denies having signed this form.As she states in her complaint, "the signature on said document is not plaintiffs signature nor did plaintiff authorize any person to sign her name on her behalf."(Compl.¶ 18).In support of this allegation, Haywood provides an exhibit which is a report by a forensic document examiner, Durward C. Matheny.(Pl.'s Br. in Resp., Ex. 7).The report includes an analysis and comparison between nineteen other known signatures of Haywood and the questioned signature.Matheny concluded "it is my opinion that the questioned signature ... shows evidence of an effort to simulate the appearance of Rachel Haywood's signature. ...Therefore, I cannot identify the author of the known signatures ... as the author of the questioned signature on [the form]."(Pl's Br. in Resp., Ex. 7).Barrington, George and Dinschel each claim that they did not sign or forge Haywood's name on the form, and each believes that the signature on the form is Haywood's signature.(BarringtonAff. ¶ 8, GeorgeAff. ¶ 5, DinschelAff. ¶ 4).Haywood does not allege which, if any, particular individual in the Montgomery County Sheriffs Office(such as, for example, officer George) forged her signature.(SeePl's Br. in Resp., pp. 3-4).

This court finds that, viewed in the light most favorable to...