Walker v. Johnson

• Citation: 446 F.Supp.3d 88
• Decision Date: 18 March 2020
• Docket Number: Civil Action No. 7:18CV00519
• Parties: Derrike Ethan WALKER, Plaintiff, v. Landon Kyle JOHNSON, et al., Defendants.
• Court: U.S. District Court — Western District of Virginia

446 F.Supp.3d 88

Derrike Ethan WALKER, Plaintiff,

v.Landon Kyle JOHNSON, et al., Defendants.

Civil Action No. 7:18CV00519

United States District Court, W.D. Virginia, ROANOKE DIVISION.

Signed March 18, 2020

Carrol Mullen Ching, Daniel Jacob Martin, John Palmer Fishwick, Jr., Fishwick & Associates, PLC, Melvin L. Hill, Melvin L. Hill, PC, Monica Lynn Mroz, Strelka Law Office, Roanoke, VA, for Plaintiff.

Christopher Stanislaw Dadak, Jeremy Ethridge Carroll, Jim H. Guynn, Jr., Guynn & Waddell, PC, Salem, VA, for Defendants.

MEMORANDUM OPINION

Glen E. Conrad, Senior United States District Judge

Derrike Ethan Walker filed this action under 42 U.S.C. § 1983 and Virginia law against Landon Kyle Johnson, Chadwick Wayne Custer, and other unknown defendants. Johnson and Custer have moved for summary judgment. The motion has been fully briefed, and the court heard oral argument on the motion on March 10, 2020. For the reasons set forth below, the motion will be granted in part and denied in part.

Factual Background

The following facts are either undisputed or presented in the light most favorable to Walker. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor [when ruling on a motion for summary judgment].").

The events giving rise to this action were set in motion by a vehicle stop on the morning of April 29, 2016, at a gas station in Botetourt County, Virginia. At that time, Johnson and Custer worked for the Botetourt County Sheriff's Office ("BCSO") as narcotics investigators. Johnson and Custer, along with one other officer, David Dillow, were the sole members of the narcotics department. Johnson Dep. 33, ECF No. 44-3.

The stop involved two vehicles, one of which was driven by Walker. The other vehicle was driven by Kyle Bushong. The record contains conflicting information regarding what led to the stop in the first instance. According to a written narrative prepared by Johnson after the stop, Johnson decided to follow Bushong's vehicle to the gas station after "the driver and the passenger began to turn and look back at [Johnson's] vehicle multiple times." Pl.'s Ex. 2, ECF No. 44-2. During his deposition, however, Johnson testified that he "saw a gentleman and it looked like he was rolling something in the front seat, so [Johnson] followed that vehicle." Johnson Dep. 44.

Custer, who was traveling nearby in a separate patrol vehicle, also followed Bushong's vehicle to the gas station. According to a written narrative prepared by Custer after the stop, he and Johnson "watched a white male exit a red in color Chevrolet and approach a green in color Subaru Outback which was parked on the Northern most part of the parking lot." Pl.'s Ex. 6, ECF No. 44-6. "The white male later identified as ... Bushong handed the white male in the driver seat of the Subaru Outback later identified as ... Walker a sum of money."¹ Id. After observing the exchange of money, Johnson and Custer approached the vehicles and identified themselves as law enforcement officers. Id.; see also Pl.'s Ex. 2. At that point, Johnson and Custer confirmed that Walker was driving the Subaru Outback and that he was accompanied in his vehicle by Logan Perdue. Pl.'s Exs. 2 & 6. Custer knew Perdue from previous encounters, and Johnson claimed to be aware that both Perdue and Walker may be involved in illegal drug activity.² Pl.'s Exs. 2 & 6. Custer reported that "Perdue had numerous track marks on his arms and seemed lethargic," and that Custer "could also smell the odor of burnt marijuana coming from [Walker's] vehicle." Pl.'s Ex. 6. When Custer advised Walker and Perdue that the officers were there to speak with them regarding "suspicious activity which looked like [a] drug transaction," Walker informed the officers that he had just collected rent money from Bushong. Id.

Johnson decided to call Cody Noakes, a canine handler with the BCSO, for assistance. Pl.'s Ex. 2. Noakes arrived shortly thereafter with a drug-detection dog. According to the written narrative that Noakes prepared following the stop, Johnson and Custer asked Noakes to have the dog perform an external sniff of both vehicles. Pl.'s Ex. 9, ECF No. 44-9. The dog alerted to the presence of drugs in Bushong's vehicle and it was searched by the officers. Id. However, the officers only found a glass device that had been used to smoke marijuana. Id. The dog also alerted to the presence of drugs in Walker's vehicle. Id. The officers searched Walker's vehicle and located two "bags of suspected methamphetamine." Id.; see also Pl.'s Ex. 8, ECF No. 44-8. Additionally, a clear bag containing what appeared to be cocaine was found in Walker's back pocket. Pl.'s Exs. 2 & 8; see also Walker Dep. 33, 63 (acknowledging that drugs were located in his car and in his pocket).

After searching Walker's vehicle and his person, Johnson and Custer allegedly told Walker that they had been "watching" him, his family, and their house. Walker Dep. 44. Walker and his wife, Olivia Brown ("Olivia"), were expecting their second child, and Walker feared that he would lose his family if he went to jail. Id. at 46. Johnson and Custer agreed to "help" Walker if he would work for them as a confidential informant. Id.

On May 4, 2016, Walker signed a cooperation agreement with the BCSO. Pl.'s Ex. 13, ECF No. 44-13. Walker agreed to work as a confidential informant in hopes that the officers "would keep their promise of no charges" arising from the stop at the gas station. Walker Dep. 73. The cooperation agreement expressly provided that "any cooperation given to the Botetourt County Sheriff's Office [would] be brought to the attention of the Botetourt County Commonwealth's Attorney's Office." Pl.'s Ex. 13. Walker was "handled" as a confidential informant by Custer. Pl.'s Ex. 30, ECF No. 44-30.

On May 4 and 5, 2016, Walker engaged in undercover drug transactions with an individual under investigation by the BCSO, who was subsequently charged and arrested. See Pl.'s Ex. 14, ECF No. 44-14; Pl.'s Ex. 15, ECF No. 44-15. Although Walker's cooperation proved beneficial to the BCSO, his stint as a confidential informant was short-lived. On May 11, 2016, Walker's probation officer in Montgomery County, Virginia, Carlie Cutright, advised Custer that Walker was no longer permitted to work as a confidential informant since he "had admitted on that date that he used [drugs] ... while doing a transaction as a confidential informant." Cutright Dep. 17–18, ECF No. 44-17.

On July 21, 2016, Walker reported to Cutright's office and tested positive for controlled substances. Id. at 16. That same day, he was taken into custody for violating the terms of his probation in Montgomery County. Id. at 17.

On July 25, 2016, a prosecution report prepared by Custer was sent to the Botetourt County Commonwealth's Attorney pertaining to the April 29, 2016 stop. Pl.'s Ex. 9, ECF No. 44-9; Pl.'s Ex. 51, ECF No. 44-51. The report accused Walker of possessing with intent to distribute a Schedule I or II controlled substance. Pl.'s Ex. 9. The prosecution report was accompanied by an incident report prepared by Custer, and confidential supplements drafted by Custer, Johnson, and Noakes. Id. Although prosecution reports in drug cases are typically prepared after the BCSO receives the results of laboratory testing, the results in Walker's case did not come back until September 2, 2016, after the prosecution report had already been submitted.³ See Dillow Dep. 15, ECF No. 44-22 (affirming that a certificate of analysis is "typically part of the prosecution report"); see also Pl.'s Ex. 24, ECF No. 44-24. The prosecution report made no mention of the assistance that Walker had provided while working as a confidential informant.

On July 28, 2016, while Walker was still incarcerated, Johnson and Custer arranged for a confidential informant to purchase marijuana from Olivia at the house where she, Walker, and their young daughter resided. Pl.'s Ex. 20, ECF No. 44-20. The controlled purchase was monitored through the use of a digital recorder and audio-visual equipment. Id. According to a written report prepared following the transaction, the controlled purchase was made in front the couple's child. Id. Olivia retrieved the marijuana from a safe in the basement, and used a set of digital scales to weigh the amount requested by the confidential informant. Id. After the confidential informant paid for the marijuana, Olivia advised him "that if he needed more to [j]ust stop by." Id. (internal quotation marks omitted). Johnson and Custer knew at the time of the controlled purchase that Walker was in jail. Johnson Dep. 99.

Later that evening, Johnson applied for and obtained a warrant to search Walker and Olivia's house for marijuana and associated items. Pl.'s Ex. 19, ECF No. 44-19. The search warrant was executed that same night by Johnson, Custer, and other law enforcement officers. The officers found $1,100.00 in currency, marijuana and other substances, two sets of digital scales, and other drug paraphernalia. Id.

On August 1, 2016, a grand jury in the Circuit Court of Botetourt County returned an indictment against Walker based on the evidence seized during the vehicle stop. Defs.' Ex. 5, ECF No. 34-5. The indictment alleged that, on or about April 29, 2016, Walker "did unlawfully and feloniously manufacture, sell, give, distribute, or possess with the intent to manufacture, sell, give or distribute a controlled substance, listed as a Schedule I or II controlled substance," in violation of Virginia Code § 18.2-248. Id. According to the indictment, Custer was the only witness who testified before the grand jury. Id.

On August 2, 2016, Johnson and Custer conducted a recorded interview of Walker. Defs.' Ex. 6, ECF No. 34-6. During the interview, they discussed what was found during the search of Walker and Olivia's house. Johnson emphasized...