Pps Inc. v. Faulkner County, 09–3540.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore WOLLMAN, LOKEN, and HANSEN, Circuit Judges.
Citation630 F.3d 1098
PartiesPPS, INC., Appellant,v.FAULKNER COUNTY, ARKANSAS; Karl Byrd, individually and in his official capacity as Sheriff of Faulkner County, Arkansas; David Hall, individually and in his official capacity as an Investigator with the Sheriff's Department of Faulkner County, Arkansas, Appellees.
Docket NumberNo. 09–3540.,09–3540.
Decision Date18 March 2011

630 F.3d 1098

PPS, INC., Appellant,
v.
FAULKNER COUNTY, ARKANSAS; Karl Byrd, individually and in his official capacity as Sheriff of Faulkner County, Arkansas; David Hall, individually and in his official capacity as an Investigator with the Sheriff's Department of Faulkner County, Arkansas, Appellees.

No. 09–3540.

United States Court of Appeals, Eighth Circuit.

Submitted: Sept. 21, 2010.Filed: Jan. 12, 2011.Rehearing and Rehearing En Banc Denied March 18, 2011.*


[630 F.3d 1100]

Guy W. Murphy, argued, Conway, AR, Lyle D. Foster, on the brief, Little Rock, AR, for appellant.Jason E. Owens, argued, Michael R. Rainwater and JaNan A. Davis, on the brief, Little Rock, AR, for appellee.Before WOLLMAN, LOKEN, and HANSEN, Circuit Judges.HANSEN, Circuit Judge.

PPS, Inc. (PPS), the owner of the EZ Cash Pawn Shop in Little Rock, Arkansas (EZ), appeals the district court's 1 grant of summary judgment to the defendants in this 42 U.S.C. § 1983 case, claiming that Sergeant David Hall of the Faulkner County, Arkansas Sheriff's Office seized property from the pawn shop's inventory without a warrant and in violation of PPS's Fourth and Fourteenth Amendment rights. We affirm.

I.

We recite the facts from the record in the light most favorable to PPS, the nonmovant in this summary judgment disposition. See Dodd v. Jones, 623 F.3d 563, 566 (8th Cir.2010). On September 15, 2007, Keadron Walker entered into a pawn agreement with PPS, under which Walker pawned a commercial grade Graco brand paint sprayer, serial number BA3166, as collateral for a $300 advance from EZ. The following week, James Baldwin reported to the Faulkner County Sheriff's Office that Walker, a former employee, had refused to return a pickup truck and a commercial paint sprayer that Mr. Baldwin had allowed him to use as part of his employment. Mr. Baldwin reported to the Sheriff's Office that Walker's mother had informed him that Walker had pawned the paint sprayer at EZ.

During business hours on September 27, 2007, Sergeant Hall and Dalton Elliott 2, investigators for the Faulkner County Sheriff's Office, met Mr. Baldwin at EZ. Sergeant Hall inquired of Robert Casto, Jr., the manager on duty at the pawn shop, whether the sprayer was on the premises, and Mr. Casto confirmed that it was. Sergeant Hall explained that the sprayer was suspected to be stolen property and requested that the pawn shop turn over the sprayer for the officers' investigation into the theft claim. Mr. Casto resisted releasing custody of the sprayer, and Sergeant Hall told Mr. Casto that he could arrest Casto if he refused. Mr. Casto then called Douglas Braswell, PPS's CEO and part owner, and told him of Sergeant Hall's demand to take the sprayer. Braswell told Mr. Casto to release the sprayer rather than get arrested.

Sergeant Hall provided Mr. Casto with a preprinted form entitled Faulkner County Sheriff's Office Pawn Shop Seizure Report/Property Receipt. The form stated that Sergeant Hall was “conducting an official investigation of a Theft of Property and the possessor “consent[ed] to transfer possession of the listed articles to” Sergeant Hall. (J.A. at 21.) By signing the form, Mr. Casto acknowledged that he

[630 F.3d 1101]

“consider[ed] this form as [his] official receipt from the Faulkner County Sheriff's Office and underst[ood] that the listed property shall be stored for safekeeping in the Property Room of the Faulkner County Sheriff's Office until the identity of the rightful owner [could] be established.” ( Id.) Upon taking possession of the sprayer, Sergeant Hall took the sprayer to the parking lot of the pawn shop and gave it to Mr. Baldwin. Mr. Baldwin signed a Faulkner County Sheriff's Department Evidence Receipt Form, which stated that Baldwin “acknowledge[d] receipt of [the sprayer] and [he was] aware that the [sprayer] may be returned to the Faulkner County Sheriff's Department upon request for the purpose of having the [sprayer] in court for evidence.” (J.A. at 83.) Sergeant Hall also completed an Evidence Report listing Baldwin's address as the place of storage for the sprayer and showing that the chain of possession passed from Sergeant Hall to Mr. Baldwin on the date that Sergeant Hall recovered the sprayer from PPS.

Nine months later on June 30, 2008, PPS filed this 42 U.S.C. § 1983 action against Sergeant Hall, Sheriff Karl Byrd, and Faulkner County. At that time, Mr. Baldwin still had possession of the sprayer, and no charges had been filed against Walker for theft of the sprayer. In its complaint, PPS alleged that Sergeant Hall had violated its rights under the Fourth and Fourteenth Amendments of the United States Constitution, that Sheriff Byrd was responsible for the development of the policies and procedures that allowed Sheriff's Office employees to seize property in violation of the Fourth and Fourteenth Amendments, and that Faulkner County, as the employer and ultimate authority over the Sheriff's Office, was responsible for the policies. PPS also asserted state law claims under the Arkansas Constitution and the Arkansas Civil Rights Act.

Following discovery, the district court granted summary judgment to all of the defendants. The district court found no basis for municipal liability against the County or the Sheriff in his official capacity, as there was no policy or custom of condoning illegal seizures. It also found that Sheriff Byrd had no knowledge of Sergeant Hall's actions, so there was no basis for individual liability against Sheriff Byrd. The district court concluded that there was no Fourth Amendment violation based on the consent and exigent circumstances exceptions to the warrant requirement. Applying the Mathews3 balancing test to the Fourteenth Amendment claim, the court determined that PPS would have been entitled to predeprivation procedures but that its consent to the seizure waived any due process claim. Finally, the court concluded that even if PPS did not waive its right to predeprivation procedures, that right was not clearly established such that Sergeant Hall was entitled to qualified immunity to the extent there was a Fourteenth Amendment violation.

PPS appeals, arguing: 1) that the district court erred in granting summary judgment when there existed disputed material facts; 2) that the seizure violated the Fourth Amendment as it was not consensual or supported by exigent circumstances; and 3) that its Fourteenth Amendment right to a predeprivation hearing was not obviated by a consensual seizure. PPS has not appealed the district court's grant of summary judgment in favor of Sheriff Byrd and Faulkner County, and we focus our discussion only on the individual claims against Sergeant Hall.

II.

We review de novo the district court's grant of summary judgment in favor of

[630 F.3d 1102]

Sergeant Hall, viewing the record evidence in the light most favorable to PPS as the nonmovant. See Dodd, 623 F.3d at 566. Summary judgment is appropriate if there are no genuine issues of material fact in dispute such that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

A. Fourth Amendment

PPS challenges Sergeant Hall's seizure of the sprayer without a warrant as a violation of its Fourth Amendment right to be free from unreasonable seizures. See U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause....”). The parties agree that PPS's possessory interest in the sprayer was entitled to the protections of the Fourth Amendment. See Maryland v. Macon, 472 U.S. 463, 469, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985) (“A seizure [for purposes of the Fourth Amendment] occurs when ‘there is some meaningful interference with an individual's possessory interests' in the property seized.” (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984))); cf. Landers v. Jameson, 355 Ark. 163, 132 S.W.3d 741, 751 (2003) (under Arkansas law, pawn broker has a security or lien interest in pawned property sufficient to entitle it to due process rights). Thus, the warrantless seizure of the sprayer violated PPS's Fourth Amendment rights unless the seizure was supported by one of what are commonly referred to as the warrant exceptions, including inter alia the plain view doctrine, consent, and exigent circumstances. See Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (“[S]eizures conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well delineated exceptions.” (internal marks omitted)).

The district court concluded that consent and exigent circumstances obviated the need for a warrant, but it rejected Sergeant Hall's contention that the plain view doctrine applied as well. In a footnote, the district court rejected application of the plain view doctrine because the paint sprayer was in a back room behind a closed door and not in view of the pawn shop's sales floor. This interpretation of the doctrine reflects its common misunderstanding. The Supreme Court, in explaining the reasoning behind the plain view doctrine, has noted that “ ‘[i]t is important to distinguish “plain view,” as used ... to justify seizure of an object [which implicates the Fourth Amendment], from an officer's mere observation of an item left in plain view,’ ” which does not implicate the Fourth Amendment. Horton v. California, 496 U.S. 128, 133 n. 5, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990) (quoting Texas v. Brown, 460 U.S. 730, 738 n. 4, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (plurality)). The Fourth Amendment protects against two distinct governmental actions—unreasonable searches and unreasonable seizures. “A search compromises the individual interest in privacy; a seizure deprives the individual of...

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