Walsingham v. Dockery

• Decision Date: 21 February 1996
• Docket Number: No. 95-893,95-893
• Citation: 671 So.2d 166
• Parties: 21 Fla. L. Weekly D502 Major Ronald WALSINGHAM, individually, and Robert V. Kriegel, individually, Petitioners, v. Denzel DOCKERY; Ruth Dockery; Vortex Spring, Inc., a Florida corporation, and Vortex Innerspace Products, Inc., a Florida corporation, Respondents.
• Court: Florida District Court of Appeals

Page 166

671 So.2d 166

21 Fla. L. Weekly D502

Major Ronald WALSINGHAM, individually, and Robert V. Kriegel, individually, Petitioners, v. Denzel DOCKERY; Ruth Dockery; Vortex Spring, Inc., a Florida corporation, and Vortex Innerspace Products, Inc., a Florida corporation, Respondents.

No. 95-893.

District Court of Appeal of Florida First District.

Feb. 21, 1996.

Rehearing Denied April 24, 1996.

Petition for Writ of Certiorari--Original Jurisdiction.

Cynthia S. Tunnicliff, Davisson F. Dunlap, Jr. and Darren A. Schwartz of Pennington & Haben, P.A., Tallahassee, for Petitioners.

David K. Miller of Broad and Cassel, Tallahassee, for Respondents.

JOANOS, Judges.

By petition for a writ of common law certiorari, petitioners seek review of a circuit court order denying their motion for summary judgment with respect to section 1983 claims asserted against them in their individual capacities. Petitioners maintain they are entitled to qualified immunity from suit on plaintiffs'/respondents' claims that they were responsible for an unreasonable search and unlawful arrest. We agree, and reverse the denial of petitioners' motion for summary judgment with respect to the section 1983 claims asserted against them in their individual capacities.

The basic facts are not in dispute. Respondents Denzel and Ruth Dockery own and reside at Vortex Springs in Holmes County, Florida. The property includes 290 acres on which is situated a restaurant, the Dockery residence, the home and office of Joe Van Wagoner, a campground, and a dive shop/welding shop area. Respondent Vortex Spring, Inc. (Vortex) is a natural spring attraction. Petitioner Walsingham is an officer of the Florida Game and Freshwater Fish Commission (GFC), in command of the Northwest Region, and was in charge of the criminal investigation which gave rise to this action. During the relevant time period, petitioner Kriegel was the official in charge of the Northwest Florida District of the Department of Environmental Regulation (DER), and was the DER supervisor involved in DER's investigation and participation in GFC's investigation of respondents.

In February 1990, Jack Boos, former employee of Vortex, reported to GFC that Mr. Dockery and several Vortex employees participated in dumping chemicals in the burn pits on Vortex property. On February 5, 1990, GFC officers Scott Runkle and Jempsey Owen interviewed Mr. Boos. Mr. Boos told officers he previously had been employed at Vortex for four years. He terminated his employment in November 1989, because he believed unsafe conditions were posed by virtue of the use and storage of numerous chemicals on the property. Although Mr. Boos did not know the names of all the chemicals in use at Vortex, he listed defoliants, herbicides, pesticides, methyl ethyl ketone, formaldehyde, hydrochloric and sulfuric acids, and xylene, most of which came from military bases. Mr. Boos told Officers Runkle and Owen that the chemicals were disposed of in trash pits located between Otter Creek and the spring on Mr. Dockery's property. Generally, chemicals in old containers were thrown into the trash pit until there was a general build-up of debris from the campsites and shop, at which time all of the trash, including the chemicals, would be burned. Mr. Boos also said there were four or five other burn pits on the property that had been covered with fresh fill dirt. In addition, Mr. Boos described a pipe at the camping area for motor home/travel trailer use, through which raw sewage was permitted to flow into Otter Creek.

Officers Runkle and Owen drove to Vortex Springs, where an employee permitted them to enter. The officers observed an active burn pit on fire and exuding black smoke, together with cranes, backhoes, and numerous chemical drums stretching for 75 to 100 yards up and down the creek. Many of the chemical containers were leaking fluid onto the ground. The officers also observed two signs above the spring near the camping area, which read: "Dump Station" and "Not potable water," and a pipe running out of the ground.

On February 6, 1990, the day after his initial interview with Mr. Boos, Lieutenant Runkle contacted the Atlanta office of the Environmental Protection Agency (EPA) and asked for advice and assistance with the case. EPA suggested that he contact the DER Hazardous Waste Section and proceed from there. Lieutenant Runkle did not think Mr. Boos' initial statements constituted probable cause to conduct a search of the Vortex premises, although he felt the statements reflected an honest concern.

Shortly after the initial Boos interview, Major Walsingham of GFC contacted Mr. Kriegel of DER, to secure DER's technical assistance in determining whether hazardous waste had been disposed of on the Vortex property. A few days later, Sergeant Owen contacted State Attorney Allen Register, to advise that he and Lieutenant Runkle were investigating Vortex Springs property concerning potential illegal disposal of hazardous waste, raw sewage, and illegal dredge and fill. As the investigation continued, Officers Runkle and Owen periodically reported to State Attorney Register and James Knight, a GFC attorney, in addition to seeking technical assistance from DER personnel.

On February 14, 1990, GFC officers Runkle and Owen met at the state attorney's office with State Attorney Register, GFC attorney Knight, Major Walsingham, and Jack Boos, where the state attorney interviewed Mr. Boos. During that interview, Mr. Boos stated that formaldehyde had been dumped in the burn pits. In a later sworn deposition, Mr. Boos confirmed that he told the state attorney formaldehyde was being put in the burn pits at Vortex. Mr. Boos explained he was concerned about the numerous chemicals stored on Vortex property, the putrid smell, and the fact that deteriorated chemical containers were dumped into the burn pits and into the water. He called GFC, because he concluded the game wardens would be able to stop these activities.

On February 14, 1990, GFC officers interviewed Ron Dragula, another former employee of Vortex. ¹ Mr. Dragula told officers that--

methaketone was there, I saw formaldehyde the formaldehyde containers were all plastic bottles, they were kind of sunbaked, cracking and leaking[.] Acetone in little plain brown military type cans, you know what I am saying, there were all rusted out and leaking. Hydrochloric acid, sulfuric acid and muriatic acid were all in glass jugs and plastic jugs and stored out in the front where anybody could get to them.

On February 15, 1990, Officers Runkle and Owen obtained a sworn statement from Mr. Davis, who has been an employee at Vortex Springs since 1980. Mr. Davis told officers that present on the property were such chemicals as ether in gallon containers, weed killers, paint remover, trichloroethene, mercury, denatured alcohol, and methylethylketone. Mr. Dockery bought many of these materials at military sales. Mr. Davis told the officers that many of the containers were labeled "Hazardous Chemicals." According to Mr. Davis, any chemicals that could not be used were poured into a 55-gallon drum and burned, and the drum was then squashed and buried in the dump on Vortex property. Mr. Davis confirmed the existence of at least five dumps, all located between two creeks.

Mr. Van Wagoner, manager of Vortex and a 17-year employee, also gave a sworn statement on February 15, 1990. He listed such chemicals as sulfuric acid, hydrochloric acid, ether, mercury, Naptha, and trichloromethane as present on the Vortex Springs property. Mr. Van Wagoner invited the officers to walk around the property. In a later deposition, Mr. Van Wagoner said some of the 55-gallon containers at the dump site still had chemicals in them, but he did not know what chemicals were there.

Lieutenant Runkle said he did not accept Mr. Van Wagoner's offer to walk around the property, because it was made so late in the day that the two officers would have been unable to obtain sufficient manpower to conduct a thorough search at that time. Lieutenant Runkle further stated that in a consent search, the property owner could limit the extent of the search or curtail it at any time. The officer was concerned that evidence would be moved or covered over with fill dirt. He noted that Mr. Dockery had a tremendous amount of equipment that could be used for dredging and filling.

In an affidavit, State Attorney Register stated he had worked with Officer Owen on several prior occasions. Sergeant Owen contacted the state attorney during the first two weeks of February 1990, about a hazardous waste investigation he was conducting at Vortex Springs. Mr. Register confirmed that he personally interviewed Mr. Boos before February 16, 1990, ² and found his testimony concerning the dumping of hazardous chemicals in burn pits on the Dockery property to be credible. Mr. Register suggested that GFC officers attempt to verify Mr. Boos' statements by interviewing additional witnesses and obtaining additional information and documentation. ³ Mr. Register drafted the affidavit and search warrant for presentation to a circuit judge, and accompanied attorney Knight and Lieutenant Runkle to the judge's office. The judge read the affidavit, placed Lieutenant Runkle under oath, and inquired as to the staleness of the information in the affidavit. Upon being advised that the activity described in the affidavit was ongoing in nature, the judge again reviewed the affidavit, then issued the warrant.

During execution of the search warrant, GFC received an anonymous tip that Mr. Dockery's employees would attempt to remove a drum of chemicals located in the woods. Major Walsingham instructed Lieutenant Runkle to post another officer on the scene through the week-end, and to advise that officer concerning the tip. Later, Mr. and Mrs. Dockery approached officers posted in the pit area and stated they needed to remove a barrel of detergent in the woods. Lieutenant...