Simmons v. Poe

• Citation: 47 F.3d 1370
• Decision Date: 01 March 1995
• Docket Number: 94-1584 and 94-1648,Nos. 94-1583,s. 94-1583
• Parties: James E. SIMMONS, Individually and on behalf of all those he represents, Plaintiff-Appellant, v. Vernon POE, Individually and in his official capacity as a deputy sheriff; L.E. McCann, Individually and in his official capacity as a Special Agent with the Virginia State Police; Carl R. Baker, Superintendent of the Virginia State Police, in his official capacity; M. Wayne Huggins, in his official capacity as Superintendent of the Virginia State Police, Defendants-Appellees, and Virginia State Police; Julian E. Boyer, Individually and in his official capacity as a Magistrate in Powhatan County, Virginia, Defendants. James E. SIMMONS, Individually and on behalf of all those he represents, Plaintiff-Appellee, v. Vernon POE, Individually and in his official capacity as a deputy sheriff, Defendant-Appellant, and L.E. McCann, Individually and in his official capacity as a Special Agent with the Virginia State Police; Virginia State Police; Carl R. Baker, Superintendent of the Virginia State Police, in his official capacity; Julian E. Boyer, Individually and in his official capacity as a Magistrate in Powhatan County, Virginia, Defendants. James E. SIMMONS, Individually and on behalf of all those he represents, Plaintiff-Appellee, v. L.E. McCANN, Individually and in his official capacity as a Special Agent with the Virginia State Police, Defendant-Appellant, and Virginia State Police; Carl R. Baker, Superintendent of the Virginia State Police, in his official capacity; Vernon E. Poe, Individually and in his official capacity as a deputy sheriff; Julian E. Boyer, Individually and in his official capacity as a Magistrate in Powhatan County, Virginia, Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1370

47 F.3d 1370

31 Fed.R.Serv.3d 451

James E. SIMMONS, Individually and on behalf of all those he

represents, Plaintiff-Appellant, v. Vernon POE, Individually and in his official capacity as a

deputy sheriff; L.E. McCann, Individually and in his

official capacity as a Special Agent with the Virginia State

Police; Carl R. Baker, Superintendent of the Virginia State

Police, in his official capacity; M. Wayne Huggins, in his

official capacity as Superintendent of the Virginia State

Police, Defendants-Appellees,

and

Virginia State Police; Julian E. Boyer, Individually and in

his official capacity as a Magistrate in Powhatan

County, Virginia, Defendants.

James E. SIMMONS, Individually and on behalf of all those he

represents, Plaintiff-Appellee, v. Vernon POE, Individually and in his official capacity as a

deputy sheriff, Defendant-Appellant,

and

L.E. McCann, Individually and in his official capacity as a

Special Agent with the Virginia State Police; Virginia

State Police; Carl R. Baker, Superintendent of the Virginia

State Police, in his official capacity; Julian E. Boyer,

Individually and in his official capacity as a Magistrate in

Powhatan County, Virginia, Defendants.

James E. SIMMONS, Individually and on behalf of all those he

represents, Plaintiff-Appellee, v. L.E. McCANN, Individually and in his official capacity as a

Special Agent with the Virginia State Police,

Defendant-Appellant,

and

Virginia State Police; Carl R. Baker, Superintendent of the

Virginia State Police, in his official capacity; Vernon E.

Poe, Individually and in his official capacity as a deputy

sheriff; Julian E. Boyer, Individually and in his official

capacity as a Magistrate in Powhatan County, Virginia, Defendants.

Nos. 94-1583, 94-1584 and 94-1648.

United States Court of Appeals Fourth Circuit.

Argued Dec. 5, 1994.

Decided March 1, 1995.

ARGUED: Gerald Thomas Zerkin, Gerald T. Zerkin & Associates, Richmond, VA, for appellant. Barbara J. Gaden, Asst. Atty. Gen., Richmond, VA, Fred R. Kozak, Maloney, Yeatts & Barr, P.C., Richmond, VA, for appellees. ON BRIEF: Robert Godfrey, Liesl D. Wilke, Melanie A. Hopper, Gerald T. Zerkin & Associates, Richmond, VA, David P. Baugh, Richmond, VA, for appellant. James S. Gilmore, III, Atty. Gen., Gregory E. Lucyk, Sr. Asst. Atty. Gen., Lee Melchor, Asst. Atty. Gen., Richmond, VA, Archer L. Yeatts, III, Maloney, Yeatts & Barr, P.C., Richmond, VA, for appellees.

Before HALL and MURNAGHAN, Circuit Judges, and LAY, Senior Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation.

Affirmed in part and reversed in part by published opinion. Judge MURNAGHAN wrote the opinion, in which Judge HALL and Senior Judge LAY joined.

OPINION

MURNAGHAN, Circuit Judge:

The instant appeal arises from an action by Appellant, James E. Simmons, an African-American resident of Powhatan County, Virginia, in which he alleged several violations of his rights under the Fourth, Thirteenth, and Fourteenth Amendments to the Constitution by the following persons: Vernon E. Poe ("Poe"), a Powhatan County deputy sheriff; Wayne Huggins ("Huggins"), the Superintendent of the Virginia State Police; L.E. McCann ("McCann"), a State Police special agent; and Julian Boyer ("Boyer"), a Magistrate Judge in Powhatan County, Virginia ^*. The alleged violations occurred in connection with Simmons's seizure pursuant to a search warrant as part of a police investigation of the rape of an elderly white woman in Powhatan County. As part of that seizure, blood was taken from Simmons for the purpose of DNA testing, ultimately proving that Simmons was not the rapist.

On October 21, 1993, Simmons filed an amended complaint in the United States District Court for the Eastern District of Virginia alleging: (1) that the Appellees violated 42 U.S.C. Sec. 1985(3) by conspiring to cause his seizure and the removal of his blood pursuant to an illegal search warrant, in derogation of his rights under the Fourth, Thirteenth and Fourteenth Amendments; (2) that the Appellees violated 42 U.S.C. Secs. 1983 and 1985(3) by using and conspiring to use a racist behavioral profile to effect the investigation, search and seizure, and arrest of African-American males; and (3) that Appellees Poe and McCann violated 42 U.S.C. Sec. 1983 by deliberately omitting material exculpatory information from the search warrant application and affidavit. By an order dated February 3, 1994, the District Court denied Simmons's motion for partial summary judgment, and granted the Appellees' motions for summary judgment as to the claims against the Superintendent and as to the section 1985(3) conspiracy claim. Additionally, the District Court granted Magistrate Boyer's motion to dismiss, denied Simmons's request for class certification, and denied Poe's and McCann's claims of entitlement to qualified immunity.

On March 2, 1994, Simmons filed a renewed motion for partial summary judgment as to the section 1983 claims. Before that motion was denied, however, Poe and McCann filed notices of appeal from the District Court's denial of their claims of entitlement to protection under the doctrine of qualified immunity. Simmons subsequently filed a motion to certify the appeal as frivolous, upon which Poe and McCann voluntarily withdrew their appeal, preserving their right to appeal the qualified immunity issue at a later time. The District Court then entered its final order, dated April 11, 1994, granting to Appellees summary judgment as to the remaining claims.

Simmons filed a timely notice of appeal on May 29, 1994. Appellees Poe and McCann also timely noted their cross-appeals on the issue of qualified immunity.

Factual Background

On January 25, 1992, at approximately 1:00 a.m., an elderly white woman was raped in her home in Powhatan County, Virginia. The crime was investigated by members of the Powhatan County Sheriff's Office, led by Appellee, Deputy Sheriff Vernon E. Poe. The victim provided the following physical description of her attacker to investigators: the attacker was male, medium height and build (5'8" to 5'10"), with a "mild" voice and a "northern" accent, and wearing a ski mask, leather gloves, and dark clothing.

During the initial investigation of the rape, the investigators determined that the attacker had entered the victim's home through a window in the kitchen. Police dogs led the deputies to the nearby home of a white male, Eric Land. Appellee Poe considered both Eric Land and his brother, Mark, to be possible suspects, but initially dismissed Mark as "much too tall" to be a potential suspect. Eric was also initially dropped from consideration because his mother and brother provided him with an alibi.

On January 27, 1992, Deputy Sheriff Poe consulted with Appellee, Special Agent Larry E. McCann of the Virginia State Police, to assist him in the investigation because of McCann's training in the field of behavioral profiling, or criminal investigative analysis. In particular, McCann produces profiles, or "composites of the major personality and behavioral characteristics of [an] unknown offender," by examining crime scenes and victimology. The profile is then used by law enforcement officials in their investigation of a subject offense.

Poe related to McCann the circumstances of the rape and the evidence uncovered by investigators relating to the attacker's method of entry into the victim's house. Poe additionally gave McCann the victim's description and her attacker's height and build. Moreover, Poe told McCann that although the victim had initially indicated to investigators that she thought her attacker was white from his accent, she was unable conclusively to identify the race of her attacker because he wore a mask and gloves during the rape. McCann was also told that a dog had tracked to Eric Land's house, but that both Eric and his brother had been eliminated as suspects at that point. McCann did not visit the crime scene and did not personally review any of the evidence developed by Powhatan County investigators. All of the information which McCann considered was provided to him secondhand by Poe.

McCann, analyzing the information given to him by Poe, told Poe that the attacker "probably" had the following characteristics: (1) young black male (age 16 to early 20s) or a "severely screwed up" white male, (2) lives with older female and possibly sisters, (3) lives close to the victim, (4) selects victims by peeping, (5) has been in minor trouble with police previously, (6) walks or rides a bike, (7) is meek, quiet, shy, retiring, (8) is often out at night, and (9) has had prior contact with the victim, perhaps as a laborer for the victim. Following that initial conference with McCann, Poe spoke to the neighbors and family of the victim, in an effort to identify "anyone that had contact with her out of the normal personal scope of contact...." As a result of this inquiry, Poe developed a list of fifteen to twenty names of potential suspects. The list was compiled by looking primarily for men who had some contact with the victim, met the general physical description provided by the victim, had a "northern" accent, and lived in the general area.

Poe's investigation of the potential suspects occurred in no particular order. As the investigation progressed, three or four suspects consented to giving blood samples, which eliminated them from further investigation. Another potential suspect--a white male--died shortly after the investigation began. Appellant Simmons was eventually added to Poe's list of potential suspects.

In the course of his investigation, Poe consulted with McCann several times. On February 6, 1992, Poe asked McCann to contact authorities at the F.B.I., where McCann had received his training, and consult with them about McCann's analysis. Accordingly, McCann contacted Steve Mardigan at the F.B.I. Academy in Quantico, Virginia. Mardigan informed McCann that the F.B.I. did not handle single...