Terrell v. Petrie

• Decision Date: 17 May 1991
• Docket Number: Civ. A. No. 3:90CV00629.
• Citation: 763 F. Supp. 1342
• Parties: Lorenzo C. TERRELL, Plaintiff, v. Jack G. PETRIE, et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

763 F. Supp. 1342

Lorenzo C. TERRELL, Plaintiff, v. Jack G. PETRIE, et al., Defendants.

Civ. A. No. 3:90CV00629.

United States District Court, E.D. Virginia, Richmond Division.

May 17, 1991.

Patrick Nicholas Anderson, Albo & Anderson, Vienna, Va., Timothy Hannapel, Cary P. Sklar, Nat. Treasury Employees Union, Washington, D.C., for plaintiff.

Debra Jean Prillaman, Asst. U.S. Atty., Office of the U.S. Atty., Richmond, Va., for defendants Petrie, Hardesty, Scott and Venini.

MEMORANDUM OPINION

RICHARD L. WILLIAMS, District Judge.

This case involves Lorenzo Terrell's charge that he was unlawfully arrested and searched by IRS agents on March 27, 1990. The arrest was ostensibly based upon a state-issued capias for failure to pay $60 in court costs in 1982. Plaintiff, who works for the IRS claims the arrest was a pretext to search for illegal drugs. Defendants, IRS employees who either conducted the search or were supervisors, have moved to dismiss or for summary judgment on several grounds, including qualified immunity.

For the reasons discussed below, Defendants' motion will be DENIED.

FACTS

The Court views the facts in a light most favorable to Plaintiff. Turner v. Dammon, 848 F.2d 440, 444 (4th Cir.1988). This obligation is heightened by the fact that Plaintiff has thus far been denied discovery, due to Defendants claim of qualified immunity.

Defendant Frank E. Hardesty ("Hardesty") is the Group Manager of the Inspection Service, Internal Security Division, Mid-Atlantic Region, Internal Revenue Service. At some point between 1986 and 1990, Hardesty became suspicious that IRS employee Lorenzo Terrell was selling drugs in the workplace. The source of this suspicion was two confidential "tips." Based upon his suspicion, Hardesty considered performing a "reasonable suspicion" drug test. As a prelude to this test, the Inspector's Office performed a criminal records check on Terrell. This search revealed that Terrell had been charged with possession of marijuana in 1982. It did not state the disposition of the charge. On March 27, 1990, Defendant Douglas Scott ("Scott") contacted the Richmond General District Court and learned that the charge had been dismissed, but that there was an outstanding capias warrant for failure to pay court costs of $60. Scott told the clerk he wanted to pick up the capias for execution, so the clerk prepared a capias warrant dated March 27, 1990, which states that Terrell is to show cause why he should not be punished for failure to pay court costs of $60, plus interest.

Scott took the warrant, and, after discussing the matter with Hardesty, went with Defendant Charles Venini ("Venini") to Terrell's workplace to execute the capias. They interrupted a phone call, showed Terrell their credentials, and took him to a private room. They twice asked Terrell to bring his jacket, although he was not wearing one that day. They closed the door and told Terrell that they had "trouble" from 1982. One of the inspectors stood between Terrell and the door. They produced the warrant. Terrell argued that he had paid the court costs. Defendants demanded proof of payment, which Terrell could not produce. Terrell was not nervous or fidgety.

Defendant Scott asked Terrell to stand so that he could be searched. Venini proceeded to frisk Terrell. According to Terrell, the search was prolonged, lasting at least a minute. Defendant Venini placed his fingers inside the waistband of Terrell's trousers, extensively handled his buttocks, and tugged on Terrell's testicles through his pants during the search. After not discovering anything, most of the motions were repeated. Nothing was found.

Defendants informed Terrell that a Henrico County police officer was on the way to effect the arrest. The Henrico officer arrived, frisked Terrell briefly, and placed Terrell in handcuffs. Despite Terrell's protests, he was escorted through the lobby, in front of numerous employees. He was jailed for about two hours, paid court costs and interest of $90.00, and was released. No further action was taken against him.

Terrell serves as the union steward for his office. Union officials, including Doug Tomlin, president of Chapter 48, were upset by the treatment of Terrell. Mr. Tomlin met with Defendants Jack Petrie and Frank Hardesty to discuss the incident. Hardesty stated that they had "stumbled across the capias by accident," but that in 30 days, Tomlin would change his mind about the propriety of Terrell's arrest. Tomlin took this statement to mean that Terrell would subsequently be exposed on drug charges.

§ 1983 Claim

Defendants claim that Plaintiff has no claim under 42 U.S.C. § 1983, because the Defendants did not act under color of state law. Defendants claim that there must be some conspiracy with state officials; however, neither the statute nor case law supports this proposition. The capias was issued under state law, to enforce the decision of a state court. Defendants effected the search and arrest pursuant to the capias, therefore they were acting under color of state law.

When federal officials abuse authority given by the state, § 1983 is the proper remedy. See Hampton v. Hanrahan, 600 F.2d 600, 623 (7th Cir.1979), rev'd on other grounds, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980), reh'g denied 448 U.S. 913, 101 S.Ct. 33, 65 L.Ed.2d 1176 (1980); Askew v. Bloemker, 548 F.2d 673, 677 (7th Cir.1976); Kletschka v. Driver, 411 F.2d 436, 448-49 (2d Cir.1969); Behre v. Thomas, 665 F.Supp. 89, 93 (D.N.H.1987), aff'd 843 F.2d 1385 (1st Cir.1988).

Of course, to the extent that the Defendants also acted under color of federal law, Plaintiff has a constitutional claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

FAILURE TO STATE A CONSTITUTIONAL CLAIM

Defendants argue that Plaintiff merely states common law torts, but alleges no constitutional violation. However, a search incident to a pretextual arrest violates the Fourth Amendment (see discussion below). The case law clearly established that such an arrest and search is an "unreasonable search and seizure" in violation of the Fourth Amendment, therefore Terrell has a legitimate constitutional tort claim.

Although Defendants' actions may also have been tortious under the common law, this does not preclude an action under § 1983. Defendants cite Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) in support of their claim. However, Paul specifically distinguished cases such as Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), where the plaintiff alleges an unreasonable search and seizure. Since Monroe v. Pape, § 1983 claims have been the proper means of obtaining relief for violations of the Fourth Amendment. Plaintiff has stated a proper constitutional claim.

QUALIFIED IMMUNITY

This issue is the crux of Defendants' motion to dismiss. The central question is whether Plaintiff can prove a violation of clearly established constitutional rights if allowed to go to trial. Turner v. Dammon, 848 F.2d 440, 444 (4th Cir.1988). In assessing Plaintiff's claim, the Court will look to the "objective reasonableness" of the Defendants' conduct. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). If the Defendants acted reasonably, even if erroneously, they are entitled to qualified immunity.¹

Plaintiff claims Defendants violated three clearly established constitutional rights. They are considered in turn:

1. PRETEXTUAL ARREST

A. Terrell was Seized

First, the Court must consider whether the Defendants arrested Plaintiff Terrell. In determining whether an arrest occurred, the Court must determine "if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565, 572 (1988) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1873, 64 L.Ed.2d 497 (1980)).

Viewing the facts in a light favorable to Terrell, the Court CONCLUDES that a reasonable person would not have felt free to leave. The display of credentials, the escort to a private office, the closed door, the placement of the officers, and the extensive search all indicate that Terrell was not free to leave. Indeed, the Defendants concede that Terrell was "detained" until a police officer arrived. Under these circumstances, a reasonable person would believe he was in custody. Once Terrell was escorted to the private, secure office, he was seized.

B. Pretextual Arrests are Unconstitutional

It is clearly established that an arrest effected as a pretext for an otherwise unlawful search is constitutionally defective. See United States v. Robinson, 414 U.S. 218, 248, 94 S.Ct. 467, 482, 38 L.Ed.2d 427, 448 (1973) (Marshall, J., dissenting); United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 (1932); Warren v. City of Lincoln, 816 F.2d 1254, 1257-59 (8th Cir.1987), modified on rehearing en banc, 864 F.2d 1436 (8th Cir.), cert. denied, 490 U.S. 1091, 109 S.Ct. 2431, 104 L.Ed.2d 988 (1989); United States v. Weaver, 384 F.2d 879, 880 (4th Cir.1967), cert. denied 390 U.S. 983, 88 S.Ct. 1106, 19 L.Ed.2d 1282 (1968) (citing Lefkowitz); United States v. Lee, 308 F.2d 715, 718 (4th Cir.1962), cert. denied 372 U.S. 907, 83 S.Ct. 720, 9 L.Ed.2d 717 (1963) (citing Lefkowitz); Taglavore v. United States, 291 F.2d 262, 265 (9th Cir.1961); Blazak v. Eyman, 339 F.Supp. 40 (D.Ariz.1971); Moss v. Cox, 311 F.Supp. 1245, 1251-52 (E.D.Va.1970). But see United States v. Trigg, 878 F.2d 1037 (7th Cir.1989); United States v. Causey, 818 F.2d 354 (5th Cir. 1987), rev'd en banc, 834 F.2d 1179 (5th Cir.1987). See generally Butterfoss, Solving the Pretext Puzzle: The Importance of Ulterior Motives and Fabrications in the Supreme Court's Fourth Amendment Pretext Doctrine, 79 Ky.L.J. 1 (1991); Note: The Pretext Problem...