Williams v. Garrett

• Decision Date: 04 October 1989
• Docket Number: Civ. A. No. 88-0003-C.
• Citation: 722 F. Supp. 254
• Parties: Barry and Karen WILLIAMS, Plaintiffs, v. Wayne GARRETT, et al., Defendants.
• Court: U.S. District Court — Western District of Virginia

722 F. Supp. 254

Barry and Karen WILLIAMS, Plaintiffs, v. Wayne GARRETT, et al., Defendants.

Civ. A. No. 88-0003-C.

United States District Court, W.D. Virginia, Charlottesville Division.

October 4, 1989.

J. Lloyd Snook, III, Charlottesville, Va., for plaintiffs.

Gregory E. Lucyk, Asst. Atty. Gen., Com. of Va., Major Jeffrey R. Allen, Virginia Dept. of Military Affairs, Staff Judge Advocate, VAAG-JA, Richmond, Va., Sue Keener, Com. of Va., and the Adjutant Gen., Dept. of Military Affairs, Office of Risk Management, Richmond, Va., for defendants.

Mark A. Dombroff, John K. Henderson, Jr., Katten, Muchin, Zavis & Dombroff, Washington, D.C., for Holden, Skeen, McEwen and Vance.

MEMORANDUM OPINION

MICHAEL, District Judge.

Plaintiffs in this case allege that law enforcement officers participating in an aerial and ground search of their property violated their federal constitutional rights as well as their rights under state law. Plaintiffs also allege that the searches, pursuant to a state marijuana eradication program, resulted in tortious injuries under state law. This action is brought under 42 U.S.C. § 1983 and the court has jurisdiction pursuant to 28 U.S.C. § 1343(3) and (4). Defendants have moved for summary judgment under Fed.R.Civ.P. 56 on the basis of qualified immunity. The issues were briefed by both sides and the parties were heard at oral argument on June 27, 1989. The case is now ripe for decision.

As a preliminary matter, this court cannot ignore the magnitude nor the social costs of the drug problem currently facing the United States. However, neither can this court ignore the pressures which the flood of drug cases passing through this nation's courts have exerted on basic constitutional rights. In an effort to combat drug traffic more and more courts have performed a balancing test, either explicitly or implicitly, and have decided that the perceived benefit to the fight against drugs of a restriction on rights outweighs the costs of such a restriction to civil liberties. This is particularly true in the area of qualified immunity. At each turn the restriction undoubtedly seems a small one, perhaps easily overlooked, but this court is mindful of a warning by Thomas Jefferson — a man who was an integral part of both the formation of this nation and of the constitution — "A society that will trade a little liberty for a little order will deserve neither and will lose both."

Nonetheless, this court must apply the law as it can be perceived from the statutory and case law applicable to the facts here.

I

The plaintiffs in this case are husband and wife; they reside in a rural portion of Fluvanna County, Virginia. The second amended complaint originally named sixteen defendants. However, at the June 27 hearing, plaintiffs' new counsel agreed to dismiss seven of the defendants and proceed against the remaining nine. They are as follows: Wayne Garrett, Deputy Assistant Director, Bureau of Criminal Investigations, Virginia State Police ("VSP"); Colonel James Holden, Chief of Aviation Operations, Virginia Army National Guard ("VANG"); Ray Turner, Special Agent, VSP; Lawrence Davis, Special Agent, VSP; Trooper William H. Reid, VSP; Trooper Latane Harper, VSP; Chief Warrant Officer Leon Skeen, VANG; David McEwen, VANG; and Brian Vance, VANG. All of the defendants are sued solely in their individual capacity.

The second amended complaint contains six counts. Counts I and II allege that the warrantless searches of the plaintiffs' property violated their rights under the Fourth Amendment (Count I) and Va.Code § 19.2-59 (Count II). Counts III, IV and V all arise from the actions of defendant Reid ordering the plaintiffs not to move. Count III alleges that this order constituted an arrest without probable cause and a deprivation of liberty without due process; Count IV alleges that the order was an unreasonable seizure in violation of the Fourth Amendment; and Count V alleges that the order amounted to the torts of false arrest and false imprisonment under state law. Finally, Count VI alleges that the actions of the defendants constituted trespass under state law.

II

Since the case is before the court on a motion for summary judgment the court must interpret factual disputes in favor of the nonmoving party; the following factual description is therefore based largely upon the facts as alleged by the plaintiffs. Since the case hinges on geographical details and questions of reasonableness, the recitation of facts is somewhat complex.

The Williams' home is located in the mostly rural, southern portion of Fluvanna County, Virginia. The property is part of an old farm complex; the house and a boxwood hedge adjacent to it are approximately 150 years old. The property is located on a bend in State Route 640 and the house is visible from the road; two driveways connect the house and outbuildings with the highway. The main driveway comes straight off of SR640 before the bend, and the second joins the highway after the bend and connects with a garage adjacent to the house. The house is at the end of the main driveway. On the right as one approaches the house, and parallel to the main driveway, is a boxwood hedge which averages nine feet in height. A stand of trees is located to the left of the main driveway. Thus the trees, the main driveway, and the boxwood hedge are all perpendicular to the front of the house.

Behind the house and slightly to the right is a shed; behind that is the garage serviced by the second driveway. The hedge, the house, the shed and the garage form a rough line. To the right of this line, in 1986, was an open area that was, for the most part, cleared of trees and mowed. About 115 feet from the hedge and house the cleared land ended and forest began. The forested land was also owned by the plaintiffs. In the cleared area stood several trees, a cottage and a "nursery area" containing potted houseplants. The nursery is about fifty feet from the house in the direction of SR640 and the cottage is another twenty feet beyond that. A track leads from behind the garage away from the house and ends in the woods. At the end of the track was an abandoned school bus. In 1986 plaintiffs operated an automobile repair business and an elder care facility on their property.

During 1986 the Commonwealth of Virginia operated a Marijuana Eradication Program ("MEP") under the auspices of the VSP, which also included VANG and local law enforcement personnel. For two weeks during the summer the MEP conducted helicopter surveys of rural parts of the state in the hopes of discovering signs of marijuana cultivation. On the afternoon of July 15, 1986, a helicopter and ground crew were assigned to Fluvanna County. At some point during the afternoon a spotter on the helicopter called out a possible sighting of marijuana.

The helicopter descended and circled the location and Jackie Gillespie, a local deputy who is not a party to this suit, confirmed the sighting of what he claimed looked like marijuana. This conclusion was based on three factors: "the distinctive, bright green color of the plants ... the fact that it appeared the grower was trying to hide the plants behind the shed,¹ and because the plants were located outside the curtilage."² The helicopter passed low enough on its search for the downdraft from the rotors to pull portions of the tin roof off of the cottage. At some point after making the observation, the helicopter moved to a location over the woods near the abandoned school bus. Plaintiffs estimated the trees in this area to be fifty to sixty feet tall and therefore the helicopter's altitude to be seventy-five feet or close enough for the downdraft to damage tree branches.

On the basis of Gillespie's observation, the ground crew, waiting at a nearby staging area, was called in. No warrant was obtained before the search commenced. Approximately sixteen people proceeded to the Williams' property; however, not all of them entered onto the property. Some were disoriented and never arrived, and others remained out on the highway without entering the property. The first car up the main driveway contained defendants Reid and Harper. Both men got out of the vehicle; Harper, following instructions radioed from the helicopter, made his way through the boxwood hedge; Reid, armed with an automatic weapon, remained near the car. When approached by the plaintiffs some minutes after his arrival, Reid told them "stay right where you are — don't move." Harper, meanwhile, continued his search beyond the boxwood hedge. After searching for several minutes he was unable to find any contraband and returned to his car where he observed Reid and the Williams. Uncontradicted testimony shows that the only plants on the property were roses, white pine seedlings and other houseplants.

The only other persons who actually entered upon the property were Davis and Turner. Davis pulled in at the foot of the main driveway and parked. As he got out he saw Harper coming out of the hedge and heard him say that there was no marijuana. Turner, who had parked on SR640, also came up the main driveway as Harper exited the hedge. According to Davis, Turner and he spoke for a moment on the driveway. In his affidavit Turner does not mention Davis at all and indicates that he spoke only with Harper. In any event, Turner did no more than walk on the driveway. After Harper determined that the sighting was erroneous, all those officers present returned to their vehicles and left the premises.

For ease of analysis the nine defendants in this case can be divided into four groups; each group will be discussed separately as different legal and factual elements determine the outcome. The first group consists of defendants Turner and Davis. Defendants Garrett and Holden, the two administrative officials, constitute the second group. The crew of the helicopter, defendants Skeen, McEwen and Vance, along with Harper, the trooper who...