Warren v. City of Lincoln, Neb.

• Decision Date: 17 April 1987
• Docket Number: No. 86-1434,86-1434
• Citation: 816 F.2d 1254
• Parties: Jackson WARREN, Appellant, v. CITY OF LINCOLN, NEBRASKA; James Breen; Sandra L. Myers and David M. Beggs, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1254

816 F.2d 1254

Jackson WARREN, Appellant, v. CITY OF LINCOLN, NEBRASKA; James Breen; Sandra L. Myers and David M. Beggs, Appellees.

No. 86-1434.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 17, 1986.

Decided April 17, 1987.

Dorothy Walker, Lincoln, Neb., for appellant.

Richard D. Sievers, Lincoln, Neb., for appellees.

Before HEANEY and WOLLMAN, Circuit Judges, and LARSON, ^* Senior District Judge.

HEANEY, Circuit Judge.

Jackson Warren, a Lincoln, Nebraska, college student, appeals from the district court's judgment dismissing the 42 U.S.C. Sec. 1983 action he had filed against the City of Lincoln and three Lincoln police officers following an adverse jury verdict. For the reasons set forth below, we reverse and remand.

I. BACKGROUND.

At 4:30 a.m. on April 13, 1985, several Lincoln City police officers were investigating an attempted burglary in southwest Lincoln. Officer Sandra Myers was on duty in that area when she heard Officer Alexander state, over the police radio, that his dog was tracking a suspect in the vicinity of 15th and C Streets. Myers decided to drive towards that intersection. As she did, she heard Officer Lafevre say that he was going to investigate a parked vehicle on 19th and C Street. She immediately went west on C Street to assist him. Myers and Lafevre arrived at the parked car at about the same time. Jackson Warren was sitting in it.

As the officers converged upon the area, Warren attempted to leave. Officer Alexander and his police dog approached Warren and requested that he pull over, park his vehicle, and remain inside. The officer in charge directed Myers to question Warren.

Myers testified that she approached Warren in his car and asked him for identification, for vehicle ownership information, and for a detailed summary of his evening activities. Warren answered all questions.

After the initial questioning, Myers went back to her vehicle to conduct a warrant check. She called the police dispatcher and provided the dispatcher with Warren's name, race, sex, and date of birth. She was told Warren had a confirmed warrant for his arrest for speeding and failing to appear on the citation. Myers then arrested Warren, conducted a pat-down search, and put him in the backseat of her vehicle. Myers drove Warren to the jail complex.

At the jail, Myers turned Warren over to Detective James Breen who was investigating recent sex-related burglaries in the southwest area of the City. Myers testified that she turned him over to Breen because she believed Breen could connect Warren to these burglaries.

Breen detained Warren and questioned him extensively on his personal background. At the outset of the questioning, Warren asked Breen whether he was under arrest and why he was being questioned. Breen told Warren that he was being detained and questioned because he was a suspect in the reported burglary attempt. Warren was not given a Miranda warning. Warren asked to speak with a lawyer and Breen informed him that he did not have a right to a lawyer because he was not formally accused of any crime. Warren then asked to make a telephone call. This request was also denied. Breen grilled Warren with respect to his whereabouts that evening, his explanation for the guard dog tracking to his car, and his sexual history. When the interrogation ended, he was fingerprinted, handprinted, and photographed by Sergeant David Beggs. Warren was released at 6:30 a.m. after posting bond on the traffic warrant.

Thereafter, Warren filed this section 1983 action against the City and Officer Myers, Sergeant Beggs, and Detective Breen. The complaint alleged that the police officers, pursuant to police department policy, violated Warren's constitutional rights by arresting him without probable cause on April 13, 1985, taking him to the police department, falsely imprisoning him, subjecting him to harassing, crude, and lengthy interrogation without granting his request for counsel, fingerprinting him, and photographing him numerous times. The complaint further alleged Warren suffered severe emotional distress, mental pain, and psychological damage as a result of the intentional acts of the defendants and sought $100,000 in damages from each of the individual officers and from the City. After a three-day trial, the jury returned a verdict in favor of the defendants. The trial court denied Warren's post-trial motions challenging the verdict; this appeal followed.

The issues on appeal are: 1) whether the trial court erred in instructing the jury that Warren had been arrested for a traffic violation when there was evidence that in fact he had been arrested as a suspect in an attempted burglary; 2) whether the trial court erred in instructing the jury as to the law of custodial arrest and interrogation; 3) whether the trial court misinstructed the jury on the law of qualified immunity; and 4) whether the trial court erred in dismissing, at the close of the appellant's case-in-chief, the complaint as to the City of Lincoln and Officer Myers. We agree that the court erred in instructing the jury and in dismissing the City and the arresting officer, and remand for a new trial.

II. ANALYSIS.

A. The Arrest and Detention.

The first issue is whether the trial court's "Due Process of Law" instruction ¹ was correct. In that instruction, the court told the jury that Jackson Warren "was arrested for speeding and failing to appear in court in connection with the charge of speeding" and that "the officers could properly detain Warren beyond that time necessary to process him with respect to that offense if they had reasonable grounds to believe that such action was necessary in order to carry out legitimate investigative functions."

Warren's challenge to this instruction is two-fold: 1) it erroneously advised the jury that Warren was arrested for failing to appear on a traffic warrant instead of submitting the issue of the reason for the arrest to the jury; and 2) it inaccurately defined the terms under which the police could lawfully detain Warren. ² We find the instruction faulty on both grounds.

1. Pretextual Arrest.

First, the record is replete with evidence from which the jury could have determined that the arrest of Warren on the traffic offense was but a pretext to get him into custody for questioning regarding the attempted burglary and sex-related burglaries then under investigation by the Lincoln police department. The jury instruction therefore should have provided the jury the opportunity to make the determination. An arrest ostensibly for one purpose but in reality for the primary purpose of furthering an ulterior goal is unreasonable under the fourth and fourteenth amendments. United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 (1932); Taglavore v. United States, 291 F.2d 262, 265 (9th Cir.1961); Missouri v. Blair, 691 S.W.2d 259 (Mo.1985) (en banc), cert. dismissed, --- U.S. ----, 107 S.Ct. 1596, 94 L.Ed.2d 678 (1987). But cf. United States v. Hawkins, 811 F.2d 210 (3d Cir.1987) (fact that pretext given for arrest does not render invalid an otherwise constitutional search).

In Lefkowitz, prohibition agents attempted to justify their ransacking of a room and seizure of personal papers while executing an arrest warrant as a search incident to an arrest. The search and seizure were held unconstitutional because "[a]n arrest may not be used as a pretext to search for evidence." 285 U.S. at 467, 52 S.Ct. at 424.

In Taglavore, the police, suspecting Taglavore of possessing marijuana cigarettes, attempted to execute an arrest warrant for two minor traffic violations in order to search for drugs incident to that arrest. After an altercation, police seized marijuana from Taglavore, and he was subsequently tried and convicted. On appeal, the Court reversed and remanded, reasoning that the police used the traffic warrant as an excuse to search the appellant for marijuana cigarettes and held that "[w]here the arrest is only a sham or a front being used as an excuse for making a search, the arrest itself and the ensuing search are illegal." 291 F.2d at 265. The facts which contributed to the characterization of the attempted arrest on the traffic warrant as pretextual included 1) routine police procedures for traffic offenses were not followed because traffic offenders were not normally taken into custody; and 2) one of the officers testified, "It was assumed that [appellant] had marijuana cigarettes in his possession. We were going to search him for the cigarettes." The Court noted:

The violation of a constitutional right by a subterfuge cannot be justified, and the circumstances of this case leave no other inference than that this is what was done with the traffic arrest warrant here. Were the use of misdemeanor arrest warrants as a pretext for searching people suspected of felonies to be permitted, a mockery could be made of the Fourth Amendment and its guarantees. The courts must be vigilant to detect and prevent such a misuse of legal processes.

291 F.2d at 266.

Lefkowitz and Taglavore present situations where an arrest warrant is executed to justify an otherwise unlawful search as a search incident to that arrest. Nonetheless, we find the reasoning of both cases applicable in the context of an arrest warrant executed for the purpose of justifying detention and interrogation for another crime under investigation.

Applying the law to the facts of this case, we believe the actions of the police in arresting Warren may have violated the fourth amendment. The jury could well have found that Warren's arrest was improperly motivated, undertaken not in furtherance of constitutionally permissible law enforcement but for the purpose of gathering evidence of unrelated crimes for which the officers did not have probable cause to arrest Warren. The jury should have been so instructed.

It is undisputed that the police initially stopped Warren because they had reasonable...