Rodriguez-Wakelin v. Barry
| Decision Date | 27 September 2019 |
| Docket Number | No. CV-17-00376-TUC-RM,CV-17-00376-TUC-RM |
| Parties | Anita Rodriguez-Wakelin, Plaintiff, v. Daniel Barry, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
On August 1, 2017, Plaintiff Anita Rodriguez-Wakelin filed a pro se Complaint against Tucson Police Department ("TPD") officers Daniel Barry ("Barry"), Gary Parrish ("Parrish"), and Scott Glass ("Glass"); Pima County Attorney Barbara LaWall ("LaWall"); and unknown TPD officers. (Doc. 1.) Plaintiff's Complaint asserts claims for negligence, gross negligence, wrongful death, and malicious prosecution; claims under 42 U.S.C. § 1983 alleging due process violations under the Fifth and Fourteenth Amendments; and § 1983 claims alleging unreasonable search and seizure, false imprisonment, and false arrest under the Fourth Amendment. (Doc. 1 at 2.)1
Defendants answered the Complaint (Docs. 4, 7), and Defendant LaWall filed a Motion to Dismiss (Doc. 6). The Court dismissed LaWall on the grounds of absolute immunity. (Doc. 20.) The Court later granted summary judgment in favor of Defendants Barry, Parrish, and Glass on Plaintiff's state-law claims due to Plaintiff's failure to comply with Arizona's notice-of-claim statute, A.R.S. § 12-821.01. (Doc. 82.)
Currently pending before the Court is Defendants Barry, Parrish, and Glass's Motion for Summary Judgment (Doc. 86) seeking dismissal of Plaintiff's § 1983 claims. The Motion is fully briefed. (Docs. 98, 100, 106.)2 The Court held oral argument on June 20, 2019, and took the matter under advisement. (Doc. 109.)
A court must grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The movant bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If the movant fails to carry its initial burden of production, the nonmovant need not produce anything. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts to the nonmovant to demonstrate the existence of a factual dispute and to show (1) that the fact in contention is material, i.e., a fact "that might affect the outcome of the suit under the governing law," and (2) that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986); see also Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995).
At summary judgment, the judge's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. In evaluating a motion for summary judgment, the court must "draw all reasonable inferences from the evidence" in favor of the non-movant. O'Connor v. Boeing N. Am., Inc., 311 F.3d 1139, 1150 (9th Cir. 2002). If "the evidence yields conflicting inferences, summary judgment is improper, and the action must proceed totrial." Id. "The court need consider only the cited materials, but it may consider other materials in the record." Fed. R. Civ. P. 56(c)(3).
Defendant Barry is a TPD detective assigned to the Internet Crimes Against Children ("ICAC") Unit. (Doc. 87 at 1-2; Doc. 87-2 at 2, 28.) On December 2, 2015, an investigative tool used by TPD's ICAC unit located a computer with the IP address 68.228.45.62 that was potentially sharing child sexual abuse files on the Bittorrent network. (Doc. 87 at 2; Doc. 87-2 at 13, 29-30.) TPD's undercover computer automatically queried the computer with IP address 68.228.45.62, and numerous files of interest were downloaded onto the undercover computer. (Doc. 87 at 2; Doc. 87-2 at 13, 30.) Barry reviewed the files and determined that they depicted children under the age of 18 engaged in sexual acts and/or exploitive exhibition. (Doc. 87 at 3; Doc. 87-2 at 13, 30.)
On December 3, 2015, Barry obtained a grand jury subpoena requiring Cox Communications to provide subscriber information related to IP address 68.228.45.62 used on December 2, 2015. (Doc. 87 at 3; Doc. 87-2 at 14, 21.) There is no evidence that either Glass or Parrish assisted Barry with the grand jury subpoena. (Doc. 87 at 4; Doc. 87-2 at 43, 51.) In an Incident/Investigation Report, Barry wrote that Cox Communications responded to the subpoena on November 12, 2015, identifying Plaintiff's son, Alejandro Wakelin ("Alex"), as the subscriber associated with IP address 68.228.45.62. (Doc. 87-2 at 14.)3
Attached as an exhibit to Defendants' Statement of Facts is an email from Cox Communications to Barry that is dated December 28, 2015 and includes the subject line: "Customer Information Request." (Doc. 87-2 at 22.) The email itself does not reference any particular customer or IP address, nor does it indicate how many pages of records are attached. (Id.) The next page of the exhibit is titled "Responsive Records" and indicatesthat 1 DHCP lease record was found for IP address 68.228.45.62, with a start date of July 11, 2015 and an end date of December 29, 2015. (Id. at 23.) That page does not mention Alex's name. (Id.) The third page of the exhibit is a screenshot of a Cox Communications customer information page for account number 5213258-04. (Id. at 24.) That page lists Alex's name, address, and phone number, and indicates that Alex's account had been active since February 17, 2013; the page does not mention IP address 68.228.45.62. (Id.) Plaintiff has not identified any evidence undermining Defendants' representation that the three pages of this exhibit together constitute Cox's response to the grand jury subpoena. According to Barry's Incident/Investigation Report and search warrant affidavit, after receiving Cox's subpoena response, TPD conducted a wireless surveillance of the area surrounding Alex's address to ensure there were no unsecured wireless networks. (Doc. 87 at 3; Doc. 87-2 at 14, 31.)
On July 27, 2016, Pima County Superior Court Judge Kenneth Lee issued a search warrant for Alex's apartment and car. (Doc. 87 at 4; Doc. 87-2 at 15, 25-32, 38-41.) Barry prepared and presented the affidavit in support of the search warrant. (Doc. 87 at 3-4; Doc. 87-2 at 15, 25-32.) Parrish, as the Sergeant of Barry's unit, sometimes reviewed search warrant affidavits, but he cannot recall if he reviewed the affidavit Barry prepared for the search of Alex's apartment and car. (Doc. 87-2 at 55.) The record contains no evidence indicating that Glass was involved in the preparation or presentation of the search warrant affidavit. (Doc. 87 at 4; Doc. 87-2 at 47.)
Barry's search warrant affidavit describes Barry's training and experience, the crime being investigated, and the December 2015 download of files of interest. (Doc. 87-2 at 28-30.) Specifically, the affidavit states that TPD's investigative tool downloaded files of interest from a computer with IP address 68.225.45.62. (Id. at 30.) The affidavit further states that Barry requested a grand jury subpoena directing Cox Communications to provide subscriber information for the user of IP address 68.228.45.62. (Id.) The affidavit then states:
. . . .
(Id.) Finally, the affidavit describes characteristics of child pornography collectors, including that they typically retain child pornography for many years and keep it hidden from others in private places. (Id. at 31.) The affidavit requests a warrant to search Alex's apartment and car for indicia of occupancy; pornographic DVDs, CDs, VHS recordings, photographs, and images; and a variety of electronic devices including computers, memory drives, and cell phones. (Id. at 25-27.)
Detectives from the ICAC Unit and the Sex Offender Registration and Tracking Unit, including Barry, Parrish, and Glass, executed the search warrant on July 28, 2016. (Doc. 87 at 5; Doc. 87-2 at 15; see also Doc. 98-20.) The officers immediately detained Alex and his girlfriend, and took both individuals to the ICAC Command Post located at the apartment complex. (Doc. 87 at 5; Doc. 87-2 at 15.) Barry asked Alex if he wished to speak to him about why the search warrant was being served, but Alex asked if he could have an attorney and was not questioned.4 (Doc. 87 at 5; Doc. 87-2 at 15.) Barry interviewed Alex's girlfriend, searched her cell phone with her permission, and allowed her to leave after no files of interest were found on the phone. (Doc. 87 at 5; Doc. 87-2 at 15.)
On the date that the search warrant was executed but at an unknown time, Barry forensically previewed numerous items seized from Alex's residence. (Doc. 87 at 6; Doc. 87-2 at 3-4, 15-16.) He located evidence of the installation of qBitTorrent and uTorrent, both of which are software used to access the BitTorrent network. (Doc. 87 at 6; Doc. 87-2 at 3-4, 15-16.) Barry also located over 275 .torrent files with names consistent with child pornography. (Doc. 87-2 at 3-4, 16.) A .torrent file contains metadata about files and folders to be distributed but does not contain the content to bedistributed. (Id. at 16.) Barry also located a folder identical to one downloaded by the TPD undercover computer in the recycle bin of a hard drive seized from Alex's residence, though the actual contents of the folders were no longer present on the drive. (Id.) Barry did not locate the content of any...
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