TANYA S. CHUTKAN, United States District Judge.
In this civil rights action under 42 U.S.C. § 1983, Patrice Pitts and her son Michael Pitts challenge the Metropolitan Police Department's practice of obtaining home search warrants based on nothing more than street arrests for gun possession and an officer's purported "training and experience" regarding the habits and tendencies of gun possessors. Plaintiffs allege that twelve named MPD officers and an unspecified number of "John Doe" MPD officers (collectively, the "MPD Officer Defendants") violated Plaintiffs' constitutional rights when they broke down their front door, ransacked their home, and subjected them to humiliating and invasive searches, including a rectal cavity search of Michael Pitts conducted in full view of
Plaintiffs also bring a Monell claim for municipal liability against the District of Columbia, asserting that the Fourth Amendment violation described in paragraph (i)(a) above was the result of a policy, pattern and custom of such conduct by the MPD, as well as the MPD's failure to properly train and supervise its officers (Count IV).
Defendants move to dismiss Plaintiffs' Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). They argue that the MPD Officer Defendants are entitled to qualified immunity because Plaintiffs have not sufficiently alleged a violation of their clearly established constitutional rights. They also argue that Plaintiffs cannot make out a Monell violation because they cannot point to any predicate constitutional violation.
Upon consideration of Defendants' Motion and the parties' respective submissions, and for the reasons set forth below, Defendants' Motion is hereby
I. FACTUAL BACKGROUND
Plaintiffs, 56-year-old Patrice Pitts and her 37-year-old son Michael Pitts,
Tyrone Pitts Is Arrested On The Sidewalk In Front Of Plaintiffs' Apartment Building
According to Pugh's Affidavit, on March 23, 2013 (three days before the search was
According to the Affidavit, when Tyrone noticed the officers' presence, he attempted to avoid eye contact and appeared unsure of where he wanted to go. (Id.). The officers then "made contact" with Tyrone and asked him "if he had anything illegal on his person. [He] replied `No, you can check,'" and raised both of his arms in the air. (Id.). Pugh then conducted a protective pat-down for weapons and felt a metal object in the front of Tyrone's waistband, which turned out to be a nine-millimeter semi-automatic handgun loaded with eleven rounds of ammunition. (Id.). Tyrone was then arrested for possessing the handgun. (Id. at 4). Record searches subsequently determined that he was not licensed to carry a pistol in the District of Columbia and had not registered any firearms or ammunition in the District. (Id.).
Plaintiffs challenge certain of the Affidavit's assertions regarding Tyrone's arrest. Most notably, they allege that Tyrone did not spontaneously declare to the officers that they could search him for weapons, and that, "[i]n reality, [he] was forcibly stopped on the street by MPD officers and immediately frisked and searched without ever providing consent." (Am. Compl. ¶¶ 43-44).
The MPD Conducts Reconnaissance Of The Apartment Before Seeking The Warrant
According to the Affidavit, after his arrest, Tyrone informed MPD officers that he lived in apartment number two at 3921 4th Street S.E. (Warrant at 4). Later that day, a uniformed MPD officer visited the apartment. (Id.). The officer was met at the door by Patrice, who — apparently unaware that her uncle was already in custody — stated that she was Tyrone's niece, and that Tyrone lived there, but was not home. (Id.).
Plaintiffs allege that, based on this interaction between the MPD officer and Patrice, the MPD Officer Defendants "knew before their invasion into the home that [Patrice] is frail, disabled and barely able to move." (Am. Compl. ¶ 54).
Officer Pugh Applies For The Search Warrant
After Tyrone's arrest and the MPD's reconnaissance of the apartment where the Pitts family lived, Officer Pugh applied for a warrant to search (i) "the entire premise" of the apartment "for the seizure of additional guns, additional ammunition and other gun related items, photographs or paperwork that reflect the possession of firearms, or paperwork reflecting who inhabits the residence," as well as (ii) "any occupants located within the premises." (Warrant at 4).
(Warrant at 2-3).
Plaintiffs allege that "Pugh's claim that police were likely to find the firearms-related
Plaintiffs also allege that Pugh "misled the issuing judge" in applying for the search warrant by failing to inform the judge that (i) many guns in the District "are passed and traded by individuals without documentation or records, and without the person possessing any receipts or accoutrements of legal gun ownership"; (ii) gun possessors in the District "frequently share guns with multiple other residents [of the District] and therefore often possess firearms on the street that they do not actually own"; and (iii) the MPD "trains its officers that gun possessors commonly possess [guns and gun-related items] in a variety of other places that are
The Search Warrant Is Issued
On the basis of the Affidavit, a D.C. Superior Court judge issued a search warrant on March 26, 2013. (Warrant at 1). Despite the fact that Officer Pugh requested a warrant authorizing a search of
The MPD Officer Defendants Execute The Search Warrant
Plaintiffs allege that on the evening of March 26, 2013, the heavily armed MPD Officer Defendants broke down the front door of their apartment to execute the search warrant without first knocking to announce their presence, despite the absent of any exigent circumstances that could have justified their failure to knock and announce, and despite the fact that the door was unlocked. They also allege that the door was permanently damaged by the officers' forcible entry. (Am. Compl. ¶¶ 1, 46-53).
Several officers seized and handcuffed Patrice, who had been lying in bed, "even though she is frail, disabled, and barely able to move," and even though she engaged in no threatening or illegal behavior. (Id. ¶¶ 55, 93). "[D]espite her repeated pleas for the painful metal cuffs to be removed" and the fact that "the house was
Meanwhile, Michael was taken from the kitchen, where he had been cooking dinner, and brought to the living room, where his mother was handcuffed. (Id. ¶ 60). One officer handcuffed him while another pulled down his pants and exposed and probed his genitals and anal cavity in front of his mother and his partner, Abimbola Idris.
Idris had just arrived home from work moments before police burst through the door. (Id. ¶ 67). A male officer asked her if she had any weapons, and she stated that she did not, and that she had just come home from work. (Id. ¶ 68). The officer then patted her down, despite the fact that she was wearing a tight dress and was clearly unarmed. (Id.). She was then handcuffed. (Id. ¶ 69). When she calmly asked why she had been handcuffed, an officer told her that everyone in the house "had" to be handcuffed before then tightening the handcuffs so that they cut into her skin, causing her significant pain and leaving a scar. (Id.). When Idris complained that the handcuffs were hurting her, she was told to shut up. (Id. ¶ 70). When an officer pointed to her briefcase, Idris asked him to be careful with it because it contained a laptop belonging to her employer. (Id. ¶ 71). The officer then "picked up the briefcase and deliberately dropped [it] onto the floor from arm height." (Id.). Idris "asked the officer what she was supposed to tell her employer if the officer had broken her laptop, and the officer told her to tell her employer that she had been in a `bad neighborhood, in a bad house that she shouldn't have been in.'" (Id. ¶ 72).
The officers "then ransacked the home, throwing the family's belongings all around the house." (Id. ¶ 77). They did not find any guns or any of the gun-related items described in the search warrant, nor did they find any drugs or other contraband. (Id. ¶ 77). The officers seized only some of the family's mail, which was never returned to them. (Id. at 17 n.5; Warrant at 1). It took the Pitts family several days to clean their apartment, and the experience left them traumatized, and feeling unsafe in their own home. (Id. ¶ 79).
Plaintiffs' Allegations Regarding The MPD's Pattern, Policy And Practice Of Obtaining Warrants For Home Searches Based On Gun Arrests Outside The Home And Averments Regarding Officer "Training And Experience"
Plaintiffs allege that the MPD "has adopted a pattern, policy, and practice of instructing its officers to obtain and execute search warrants [for] the alleged residences
Plaintiffs claim that in the one-year period surrounding the execution of the search warrant at issue in this case, MPD officers obtained warrants for at least 56 home searches on the basis of having found a firearm on a resident of the home during a street stop and their purported "training and experience" regarding the habits and tendencies of gun possessors, but without presenting any other evidence linking the home to any criminal activity. (Id. ¶ 40). As noted above, Plaintiffs allege that, in the vast majority of instances, these searches found no evidence of gun possession. (Id. ¶¶ 4b, 29-30).
II. LEGAL STANDARD
Motion To Dismiss Under Rule 12(b)(6)
"A Rule 12(b)(6) motion tests the legal sufficiency of a complaint." Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002). In considering a motion to dismiss for failure to state a claim under Rule 12(b)(6), a court must construe the complaint in the light most favorable to the plaintiffs, see id. and "must assume the truth of all well-pleaded allegations." Warren v. District of Columbia, 353 F.3d 36, 39 (D.C.Cir.2004). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal and citation omitted). "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citation omitted). Although a plaintiff may survive a Rule 12(b)(6) motion even where "recovery is very remote and unlikely," the facts alleged in the complaint "must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quotation and citation omitted). Moreover, a pleading must offer more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955).
"Qualified immunity balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). This protection is afforded to government officials regardless of whether their "error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact." Id. (quotation and citations omitted); see also Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) ("Because many situations which confront officers in the course of executing their duties are more
"[W]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the `objective legal reasonableness' of the action, assessed in light of the legal rules that were `clearly established' at the time it was taken." Anderson, 483 U.S. at 639, 107 S.Ct. 3034 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). "Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Doe v. District of Columbia, 796 F.3d 96, 104 (D.C.Cir.2015) (citation and brackets omitted); see also Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (noting that courts "do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate").
Given the nature of the qualified immunity calculus, "if the facts in the record could at least arguably give rise to probable cause," then a defendant is "entitled to qualified immunity." Wesby v. District of Columbia, No. 12-7127, 816 F.3d 96, 100, 2016 WL 482910, at *5 (D.C.Cir. Feb. 8, 2016) (citing Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991); Wardlaw v. Pickett, 1 F.3d 1297, 1304 (D.C.Cir.1993)). Importantly, it is Plaintiffs' "burden to show that the particular right in question — narrowly described to fit the factual pattern confronting the officers — was clearly established." Dukore v. District of Columbia, 799 F.3d 1137, 1145 (D.C.Cir.2015) (citing Reichle v. Howards, ___ U.S. ___, 132 S.Ct. 2088, 2094, 182 L.Ed.2d 985 (2012)).
Defendants move to dismiss on a number of grounds, including that (i) the MPD Officer Defendants are entitled to qualified immunity; (ii) Plaintiffs fail to allege a Monell violation against the District; and (iii) the MPD Officer Defendants were not negligent per se in failing to knock and announce before entering Plaintiffs' apartment to execute the search warrant. The court will address each count of the Amended Complaint in turn, having reordered them to reflect the chronology of relevant events.
The Issuance Of The Warrant Based On Allegedly False Information (Count II) 7
Count II of the Amended Complaint alleges that Pugh's Affidavit "contained
The Supreme Court has explained that an expectation of truthfulness attends all warrant applications:
Franks v. Delaware, 438 U.S. 154, 164-65, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (quotation and citations omitted) (emphasis in original). Given this expectation, the Fourth Amendment is violated where "a false statement knowingly and intentionally, or with reckless disregard for the truth, [is] included by the affiant in the warrant affidavit ... if the allegedly false statement is necessary to the finding of probable cause." Id. at 155-56, 98 S.Ct. 2674.
Here, Pugh's Affidavit stated that his "training and experience" led him to reasonably believe that evidence of Tyrone's gun possession would be found inside the apartment. (Warrant at 2-4). Plaintiffs allege, however, that the overwhelming majority of MPD home searches based on nothing more than street arrests for gun possession and statements regarding an affiant officer's "training and experience"
Based on these statistics, Plaintiffs assert that Pugh was untruthful in his Affidavit because his training and experience could not have led him to reasonably believe that evidence of gun possession would be found in the apartment, and instead led him to believe that such evidence would
Defendants argue that "Plaintiffs' post hoc review of statistical data attempts to quantify probable cause, a practice which the Supreme Court has expressly condemned" (Mot. at 11) (citation omitted), and that "[s]tatistics based on search success rates have relatively limited import to probable cause because errors may abound in the records." (Reply at 4). But Defendants misunderstand the import of Plaintiffs' argument. As noted above, the court construes Plaintiffs as alleging that Pugh's actual "training and experience" is contrary to the "training and experience" to which he averred in the Affidavit. If Plaintiffs are correct — and the court must assume at this stage of the proceedings that they are — then the Affidavit's statements regarding Pugh's "training and experience" were false, or at least misleading. In such a circumstance, the court must determine whether "the allegedly false statement[s were] necessary to the finding of probable cause." Franks, 438 U.S. at 155-56, 98 S.Ct. 2674. In order to do so, the court must excise the allegedly false and misleading statements from the Affidavit and determine de novo whether the "hypothetical, redacted affidavit still established probable cause." United States v. Cardoza, 713 F.3d 656, 659 (D.C.Cir.2013)
In this case, when Pugh's averments regarding his "training and experience" are removed from the Affidavit, all that remains are his averments regarding (i) the circumstances of the initial street stop, search and arrest of Tyrone; (ii) the MPD's reconnaissance of the apartment; and (iii) the MPD's search of its records to determine that Tyrone was not licensed to carry a firearm and had not registered any guns or ammunition. These allegations, taken alone, do not make out probable cause to search the apartment because they fail to meet the so-called "nexus requirement," which requires that there be "reasonable cause to believe that the specific `things' to be searched for and seized are located on the property to which entry is sought." Zurcher v. Stanford Daily, 436 U.S. 547, 556, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978); see also United States v. Lalor, 996 F.2d 1578, 1583 (4th Cir.1993) ("residential searches have been upheld only where some information links the criminal activity to the defendant's residence").
The court's finding is further supported by Plaintiffs' allegations that Pugh failed to inform the issuing judge of certain facts "in his possession" that would tend to indicate that evidence of gun possession would
In light of the foregoing, the court concludes that Plaintiffs have sufficiently stated a claim that Officer Pugh secured the warrant to search their home with material false statements or omissions, thereby violating the Fourth Amendment. The court will therefore deny Defendants' Motion as to Count II, save for those portions of the count concerning the street search of Tyrone, which are addressed separately below.
The Monell Claim For Municipal Liability (Count IV)
Count IV seeks to hold the District liable for its alleged "pattern, policy, and practice of training its officers to include in search warrant applications statements of `training' and `experience' that are unsubstantiated, vague, self-defeating, contradictory, woefully insufficient to substitute for actual evidence, and materially false and recklessly misleading," including "statements of `training' and `experience' about the habits of `gun possessors' that officers stop on the street as a purported substitute for any actual evidence or police investigation into any evidentiary link to a particular residence." (Am. Compl. ¶ 87). Plaintiffs further allege that "the MPD continues to instruct its officers to predicate search warrant raids on such `training' and `experience'-based statements ... [d]espite having knowledge of the fatal factual and legal flaws in these statements" (id.), and that it has done so at least 56 times "[i]n the one-year period surrounding the execution of the warrant in this case" (id. ¶ 40). Put differently, Plaintiffs allege that the conduct challenged in Count II is part of a pattern, policy or practice that is prevalent throughout the MPD.
"[I]n considering whether a plaintiff has stated a claim for municipal liability, the district court must conduct a two-step inquiry. First, the court must determine whether the complaint states a claim for a predicate constitutional violation. Second ... the court must determine whether the complaint states a claim that a custom or policy of the municipality caused the violation." Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C.Cir.2003) (citing Collins v. City of Harker Heights, 503 U.S. 115, 120, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992)). Defendants' only argument against municipal liability is that Plaintiffs cannot establish the requisite predicate constitutional violation. The court has already held, however, that Plaintiffs' allegations are sufficient to make out a claim against Pugh regarding the manner in which he secured the search warrant. Because Count IV frames the conduct at issue in Count II as part of a pattern, policy or practice of the MPD, Count II's survival ensures that Count IV will survive, as well. The court will therefore deny Defendants' Motion as to Count IV.
The Issuance Of The Warrant Based On Information Derived From The Allegedly Illegal Street Search Of Tyrone Pitts (Counts II and III) 9
In Count III, Plaintiffs allege that the Affidavit "relied on material information
Defendants argue that Plaintiffs lack standing to challenge the street search of Tyrone. They note that evidence obtained in derogation of the Fourth Amendment is regularly admitted against a search subject's co-conspirators and co-defendants who have no personal right of privacy in the places searched or the evidence seized. Plaintiffs contend that they are not asserting Tyrone's rights, but are instead challenging the search of their home on the basis of a warrant that would not have issued if not for the illegal street search of Tyrone:
(Sur-Reply at 6-7).
The Supreme Court has made clear time and again, however, that Fourth Amendment rights "are personal rights which may not be vicariously asserted." Plumhoff v. Rickard, ___ U.S. ___, 134 S.Ct. 2012, 2022, 188 L.Ed.2d 1056 (2014) (quotation, citation and alteration omitted). Because "the Fourth Amendment protects people, not places," Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), an individual has standing to bring a Fourth Amendment challenge only where his or her own constitutional rights have been violated. See, e.g., United States v. Salvucci, 448 U.S. 83, 86-87, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980) (holding that "it is entirely proper to require of one who seeks to challenge the legality of a search" that he establish "that he himself was the victim of an invasion of privacy," and noting that "attempts to vicariously assert violations of the Fourth Amendment rights of others have been repeatedly rejected by" the Supreme Court) (quotations and citations omitted). Thus, when an individual challenges the validity of a search or the introduction of evidence seized during a search, that individual must have a "legitimate expectation of privacy" in the place searched or the items seized. Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).
While Plaintiffs assert a violation of their Fourth Amendment rights with regard to the issuance of the search warrant based on illegally obtained information, that assertion is entirely dependent on a finding that the street search of Tyrone was, in fact, unconstitutional, such that the fruits of that search can be considered "illegally obtained." To be sure, Plaintiffs explicitly allege that the street search was unlawful and unconstitutional, but these allegations amount to legal conclusions, and "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937; see also Browning, 292 F.3d at 242 (noting that, while a court must accept a
The court now turns to the portion of Count II that references Officer Pugh's allegedly false factual statements concerning the search that led to the discovery of the gun in Tyrone's waistband and his subsequent arrest. (Am. Compl. ¶ 83). As noted above, the court is not required to accept as true Plaintiffs' allegations regarding the legality of that search, and Plaintiffs lack standing to actually challenge its legality. The court must, however, accept as true Plaintiffs' purely factual allegation that Tyrone did not consent to the search (id. ¶ 44), which requires it to read Pugh's reference to Tyrone's consent out of the Affidavit and determine whether the "hypothetical, redacted affidavit still established probable cause." Cardoza, 713 F.3d at 659. But given Plaintiffs' lack of standing to challenge the legality of the search and their admission that a gun was, in fact, found in Tyrone's waistband, merely removing reference to Tyrone's consent from the Affidavit without also removing reference to the gun simply does not alter the probable cause calculus. The court therefore concludes that Pugh's allegedly false factual statement regarding Tyrone's consent did not violate Plaintiffs' Fourth Amendment rights because "the allegedly false statement [was not] necessary to the finding of probable cause." Franks, 438 U.S. at 155-56, 98 S.Ct. 2674. Accordingly, the court will also grant Defendants' Motion as to the portion of Count II concerning the street search of Tyrone.
The MPD Officer Defendants' Reliance On The Warrant (Count I) 10
Plaintiffs allege in Count I of their Amended Complaint that Pugh's Affidavit "utterly failed to provide any particularized facts linking the home to any criminal activity, let alone to establish probable cause that the list of specific [gun-related] items sought" by the warrant would be found there, and that the warrant was therefore "so plainly lacking in probable cause that no reasonable officer could have relied on it in good faith." (Am. Compl. ¶ 81). Consequently, Plaintiffs contend that the MPD Officer Defendants violated their constitutional rights by relying on the facially insufficient warrant in executing the search of their home. (Id.).
As discussed above, the court finds that Plaintiffs sufficiently allege that
The question then becomes whether the other MPD Officer Defendants were entitled to rely on the warrant. The court notes at the outset that it is "incumbent on the officer executing a search warrant to ensure the search is lawfully authorized." Groh, 540 U.S. at 563, 124 S.Ct. 1284. At the same time, courts "have recognized that it is inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude that probable cause is present, and ... that in such cases those officials — like other officials who act in ways they reasonably believe to be lawful — should not be held personally liable." Anderson, 483 U.S. at 641, 107 S.Ct. 3034. For this reason, "the protection of qualified immunity is available if `a reasonable officer could have believed that [his or her actions were] lawful, in light of clearly established law and the information the officers possessed.'" Youngbey v. March, 676 F.3d 1114, 1117 (D.C.Cir.2012) (quoting Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)).
In order for the police to have probable cause to conduct a residential search, a search warrant must fulfill the so-called "nexus requirement," which requires that there be "reasonable cause to believe that the specific `things' to be searched for and seized are located on the property to which entry is sought." Zurcher, 436 U.S. at 556, 98 S.Ct. 1970; see also United States v. Savoy, 889 F.Supp.2d 78, 88 (D.D.C.2012) ("[P]robable cause requires not only a fair probability of criminal activity but also a nexus between that activity and the place to be searched. In other words, it requires `a fair probability that contraband or evidence of a crime will be found
In United States v. Thomas, 989 F.2d 1252 (D.C.Cir.1993), the appellant sold drugs to two undercover police officers. The police then obtained a warrant to search his home. Id. at 1253-54. The appellant argued that the fruits of the search should have been suppressed because the affidavit in support of the warrant "was inadequate" insofar as "it offered no facts indicating that criminal activity occurred at the house." Id. at 1253. Indeed, the affidavit's only nexus to the appellant's residence was the affiant officer's generalized averment that, based on his "experience investigating narcotics trafficking,... drug dealers frequently keep business records, narcotics, proceeds from sales, and firearms in their houses." Id. at 1254.
The Court rejected the appellant's argument, however, finding that "substantial evidence supported a finding of probable
Thomas concerned essentially the same question that is now before this court, except in the context of drug distribution rather than gun possession. While Defendants rely heavily on Thomas, Plaintiffs address it only once in their three briefs, arguing in a footnote that "this drug-culture precedent is simply not applicable to cases in which a single gun is found on a person in a single incident," and claiming that it relied on the "deeply flawed factual assumption" that drug dealers keep evidence of their drug distribution in their homes. (Opp'n at 14 n.4). But while the context may have been different and the Court's "factual assumption" may have been "flawed," Thomas's clear holding — that generalized averments as to "training and experience" can fulfill the nexus requirement so long as "there is a reasonable basis to infer from the nature of the illegal activity observed [away from a residence] that relevant evidence will be found in the residence" — nevertheless presents a profound problem for Plaintiff's qualified immunity argument, in which they bear the burden. 989 F.2d at 1255
In an attempt to carry their burden, Plaintiffs point repeatedly to United States v. Hopkins, 128 F.Supp.2d 1 (D.D.C.2000), decided seven years after Thomas. In Hopkins, the defendant was arrested on the street for carrying a handgun without a license. Several days later, a police investigator obtained a search warrant for the defendant's residence, averring that the defendant "may have at his home address... additional guns, ammunition, gun care and cleaning materials, receipts for guns and related gun materials, reloading equipment, holsters and accessories." 128 F.Supp.2d at 3. The investigator "seem[ed]
The court took issue with the affidavit's references to the investigator's narcotics-related training and experience in support of a search warrant for evidence of gun possession. It reviewed the affidavit anew after excising the "superfluous information" regarding narcotics and found that probable cause did not exist because, with the drug references removed, the affidavit merely stated that (i) the defendant had two gun arrests (one in close proximity to his home less than 72 hours earlier), and (ii) the investigator had "participated in over 150 arrests and warrants for narcotics violations, but some unknown number of arrests for firearms and weapons violations." Id. The court found that the affidavit failed to satisfy the nexus requirement because, with the references to the investigator's "training and experience" excised, the inference to be drawn "amounted to the following: suspects who are arrested for gun violations twice in fifteen months have illegal guns and related accessories in their home." Id. In the court's view, this was "not enough to support a finding of probable cause." Id.
The court in Hopkins also found that while "the world of drugs has its own unique culture, ... [o]utside the distinctive drug culture ... behavior is much less uniform and inferences are correspondingly tougher to draw." Id. at 5-6. It then specifically addressed how drug trafficking culture differs from gun possession culture:
Id. at 7-8 (emphasis added).
The court then turned to the question of whether the Leon "good faith" exception
Id. at 9-10 (emphasis added).
Based on Thomas, its progeny in this Circuit, and the district court's reasoning in Hopkins, the court finds it to be a close question whether Pugh's averments as to his "training and experience" sufficed to establish probable cause for the other MPD Officer Defendants to believe that evidence of Tyrone's gun possession was likely to be found in Plaintiffs' home. In light of the four considerations set forth below, however, the court finds that it is at least arguable that the non-affiant MPD Officer Defendants could have reasonably believed that the warrant at issue in this case was supported by probable cause. Given the posture of this case, the court need go no further than that to conclude that the non-affiant MPD Officer Defendants are entitled to qualified immunity. See Wesby, 816 F.3d at 100, 2016 WL 482910, at *5 ("if the facts in the record could at least arguably give rise to probable cause, the defendants would be entitled to qualified immunity") (citing Hunter, 502 U.S. at 227, 112 S.Ct. 534; Wardlaw, 1 F.3d at 1304).
First, and most importantly, the D.C. Circuit has made clear that "observations of illegal activity occurring away from [a] suspect's residence can support a finding of probable cause to issue a search warrant for the residence." Thomas, 989 F.2d at 1255 (punctuation marks omitted). Officer Pugh's averments as to his "training and experience" essentially mirror the averments that passed constitutional muster in Thomas and its progeny, save for the fact that the predicate charge here was gun possession instead of drug distribution. But if generalized averments as to an officer's "training and experience" regarding the habits and tendencies of drug dealers can provide a reasonable basis to infer that evidence of drug distribution will be found in an alleged drug dealer's residence, then it stands to reason that substantially similar averments as to an officer's "training and experience" regarding the habits and tendencies of gun possessors should provide a reasonable basis to infer that evidence of gun possession will be found in an alleged gun owner's residence.
And even if the different predicate crimes warranted different probable cause determinations because of the "unique culture" of drug trafficking, it is difficult to
Second, while there is ample D.C. Circuit precedent finding that "training and experience"-based warrants can establish probable cause to search the homes of suspected drug traffickers, Hopkins is the only in-Circuit case of which the court is aware that applies those principles to the gun possession context. And while the court in Hopkins found that there was no probable cause, the applicability of that holding to this case is cast into doubt by the fact that the Hopkins affiant's averments regarding his "training and experience" were read out of the warrant application because of what was essentially a scrivener's error. The fact that the court rejected a warrant application from which all references to "training and experience" had been excised would therefore appear to have little bearing on the question of whether the Affidavit at issue in this case established probable cause, or at least came close enough that the non-affiant MPD Officer Defendants would still be protected by qualified immunity.
Third, the court in Hopkins strongly indicated that the result would have been different had the affidavit stated that gun possessors "usually possess a collection of attachments and paraphernalia, and that these attachments are usually kept at that owners' residence." 128 F.Supp.2d at 8. Plaintiffs do not address this important caveat, and they ignore the fact that the Affidavit at issue here — probably not by coincidence — contains exactly the kind of averments that were explicitly flagged as missing in Hopkins. (Warrant at 2-3). This important distinction between Hopkins and the instant case significantly undermines Plaintiffs' claim that "[i]f the warrant application in Hopkins fell far short of providing probable cause, the warrant application in this case was worse." (Opp'n at 11) (quotation omitted).
Fourth, despite the lack of any averments regarding gun-related "training and experience," the court in Hopkins nevertheless found that the assumption that "one who has a past of carrying guns, and has just recently carried a gun near his home is likely to have gun paraphernalia in his home ... was not illogical." 128 F.Supp.2d at 10. Accordingly, it concluded that the officers executing the warrant had not "acted in an entirely unreasonable manner" and were, in fact, "acting in good faith," such that the good faith exception would apply. Id. Given that finding, it is difficult to see how Plaintiffs can rely on Hopkins to argue that the non-affiant MPD Officer Defendants were "plainly incompetent" or "knowingly violat[ed] the law" here, such that they would not be entitled to qualified immunity. See Malley, 475 U.S. at 341, 106 S.Ct. 1092.
Indeed, Plaintiffs' allegations, if true, indicate that the use of "training and experience"-based warrants by the MPD has run amok. For example, Plaintiffs allege that, in the one-year period surrounding the execution of the search warrant at issue in this case, MPD officers obtained warrants to search at least 56 homes on the basis of having found firearms on a resident of the home during a street stop and their "training and experience," but without presenting any other evidence linking the home to any criminal activity, and that the vast majority of these searches turned up no evidence of gun possession. (Id. ¶¶ 4b, 29-30, 40). Plaintiffs also allege that MPD officers use averments as to their "training and experience" to take entirely contradictory positions in different search warrant applications. For instance, Plaintiffs allege that MPD officers have averred
In short, Plaintiffs allege that MPD officers use averments regarding their "training and experience" as a talismanic invocation to convert street arrests into home searches. Such conduct, in the court's view, makes a mockery of the nexus requirement, and of the concept of probable cause, more generally. However, Thomas and its progeny remain the applicable precedent by which the court is bound. Those cases, as well as the aforementioned distinctions between the instant case and Hopkins, and the heavy burden for overcoming qualified immunity, constrain the court in its analysis of whether the non-affiant MPD Officer Defendants were entitled to rely on the warrant at issue here. Accordingly, the court will grant Defendants' Motion to dismiss Count I as to the non-affiant MPD Officer Defendants.
The Manner In Which The Search Was Conducted (Counts V, VI & VII)
Plaintiffs allege that the manner in which the search of their home was conducted
i. The Failure To Knock And Announce (Fourth Amendment) (Count V)
The Fourth Amendment "incorporates the common-law requirement that police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry." Richards v. Wisconsin, 520 U.S. 385, 387, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997) (citation omitted); see also Hudson v. Michigan, 547 U.S. 586, 589, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006) (describing the common law principle as "ancient"). This rule protects against personal injury that may result from violence by a surprised resident and the destruction of property caused by the forced entry, and it preserves "those elements of privacy and dignity that can be destroyed by a sudden entrance." Hudson, 547 U.S. at 594, 126 S.Ct. 2159 (citations omitted). "These interests are not inconsequential." Richards, 520 U.S. at 393 n. 5, 117 S.Ct. 1416.
The knock-and-announce requirement is not inviolate, however. The Supreme Court has recognized that it can "give way `under circumstances presenting a threat of physical violence,' or `where police officers have reason to believe that evidence would likely be destroyed if advance notice were given.'" Id. at 391, 117 S.Ct. 1416 (quoting Wilson v. Arkansas, 514 U.S. 927, 936, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995)). Thus, "[i]n order to justify a `no-knock' entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence." Id. at 394, 117 S.Ct. 1416.
Defendants argue that the MPD Officer Defendants' no-knock entry into Plaintiffs' apartment was justified by five factors, all of which fall under the umbrella of the "officer safety" exception to the knock and announce requirement: (i) there had been reports of an individual armed with a gun frequenting the area; (ii) a resident of the apartment had been found in possession of a gun; (iii) the area had large amounts of street robberies involving guns; (iv) Officer Pugh's stated belief that firearms were likely inside the apartment; and (v) Officer Pugh's stated belief that ammunition was likely inside the apartment. (Mot. at 14-15; Reply at 6-8). The court finds Defendants' argument unavailing.
First and foremost, Tyrone — the resident of the apartment who had been found in possession of the gun, and who was by all indications the armed individual who had reportedly been frequenting the area —
Moreover, Defendants' claim that concern for officer safety justified the no-knock entry is belied by the fact that,
In fact, this case closely resembles Gould v. Davis, 165 F.3d 265 (4th Cir. 1998), discussed by Plaintiffs in their supplemental brief. (Pls.' Supplemental Br. at 6). In Gould, police officers obtained a no-knock warrant for a father's house after his son had been arrested as a suspect in a series of robberies. See 165 F.3d at 267. The warrant was based on the son's getaway driver's statement to police "that after some of the robberies he drove [the son] to his father's house," where the son "frequently stayed." Id. at 267-68. "The officers believed that the seriousness of the crime of which [the son] was accused, and the fact that the officers sought to recover two handguns, justified a departure from the `knock and announce' requirement in executing a warrant at [the father's] home," despite the fact that the son was already in custody. Id. at 268. A magistrate judge agreed and, with a no-knock warrant in hand, "the officers smashed the front door of [the father's] home by means of a battering ram and forcibly entered with their weapons drawn without first knocking or otherwise announcing their presence." Id.
The Fourth Circuit held that "it would have been `sufficiently clear' and `apparent' to a reasonable officer ... that failure to knock and announce prior to entering [the father's] home could only be justified by a fear for officer safety or a fear that the evidence sought in the warrant could be easily destroyed." Id. at 271. The defendant officers provided "two reasons why they believed they would be in peril in a search of [the father's] home: 1) the crime for which [the son] was being investigated was armed robbery and the search warrant listed two handguns among the items to be seized, and 2) the criminal history of [the father's] children warranted an inference that [the father] might shoot the officers if they knocked and announced their presence before entering." Id. The Court rejected both arguments.
First, the Court found that the mere fact that guns were sought was insufficient to justify the failure to knock and announce because, if the officers were correct, the knock and announce requirement "would never apply in the search of anyone's home who legally owned a firearm." Id. at 272. The Court held that "no reasonable officer could have believed" this to be the law, pointing out that "a reasonable officer would have known that guns do not fire themselves, and that a justifiable fear for an officer's safety must include a belief, not simply that a gun may be located within a home, but that someone inside the home might be willing to use it." Id.
The Court also declined to accept the officers' reasoning that the father might have been willing to use any guns that might have been inside the home if the officers had knocked and announced their
The court agrees with the Fourth Circuit's analysis, and concludes that no reasonable officer could have believed that the no-knock entry here was justified by concerns for officer safety given that (i) the MPD Officer Defendants knew that Tyrone was already in custody at the time of the search; (ii) an MPD officer had visited the apartment in uniform three days earlier and was met by a frail, disabled woman who willingly answered questions; (iii) the MPD Officer Defendants had no reason to believe that Plaintiffs or anyone else inside the apartment had any violent or criminal propensities; and (iv) the MPD Officer Defendants could not reasonably impute Tyrone's criminal propensities to those with whom he lived. Given the facts and circumstances of this case, the MPD Officer Defendants were not justified in executing the search warrant without first knocking and announcing their presence. The court will therefore deny Defendants' Motion as to Count V.
ii. The Failure To Knock And Announce (Negligence Per Se) (Count VI)
Count VI of the Amended Complaint frames the MPD Officer Defendants' failure to knock and announce as "negligence per se." (Am. Compl. ¶¶ 90-91). Defendants claim that Plaintiffs appear to be "relying on D.C. Code § 23-524, which provides that all search warrants must be executed in compliance with 18 U.S.C. § 3109," which, in turn, imposes a knock-and-announce requirement. (Mot. at 18) (citing D.C. Code § 23-524(a)). Defendants argue that section 3109 "cannot support negligence per se because it is merely a codification of the common law," and "[w]here a statute merely clarifies or defines the duty of care, it does not alter the common law of negligence." (Id.) (citing Perkinson v. Gilbert/Robinson, Inc., 821 F.2d 686, 692 (D.C.Cir.1987)).
Plaintiffs appear to abandon their negligence per se argument in a footnote to their opposition brief, where they state that, "[r]egardless of whether the [MPD Officer] Defendants were negligent per se or merely negligent, the critical inquiry, as Defendants concede, is whether their conduct was `reasonable,'" and that "the failure to knock and announce in this case was not reasonable." (Opp'n at 34 n.17). Citing Plaintiffs' apparent abandonment of their negligence per se argument, Defendants urge the court to treat it as conceded. (Reply at 1 n.1). Based on the aforementioned footnote and the fact that Plaintiffs do not return to their negligence per se argument in their sur-reply or supplemental brief, the court agrees that Plaintiffs have conceded this argument. The court will therefore grant Defendants' Motion as to Count VI, and dismiss it as conceded. See Baptist Mem'l Hosp.-Golden Triangle v. Leavitt, 536 F.Supp.2d 25, 40 (D.D.C. 2008), aff'd sub nom. Baptist Mem'l Hosp.-Golden Triangle v. Sebelius, 566 F.3d 226
iii. The Cavity Search Of Michael Pitts (Fourth Amendment) (Count VII)
Plaintiffs allege that the MPD Officer Defendants pulled down Michael's pants, probed his genitals, and subjected him to a humiliating and degrading anal cavity search in front of his mother and partner. (Am. Compl. ¶¶ 1, 61). Plaintiffs argue that the cavity search was patently unreasonable because, among other things, (i) there was no indication that Michael was secreting any of the gun-related items sought in the warrant inside his anal cavity while he was cooking dinner for his family (Opp'n at 35-36); (ii) the search warrant granted authority to search the apartment, but did not grant authority to search its occupants, despite Officer Pugh having requested such authority in the warrant application (id. at 36); and (iii) Michael's mere presence in the apartment at the time of the search was insufficient to create probable cause to conduct such an invasive search. (Pls.' Supplemental Br. at 6-7).
Defendants contend that the cavity search was reasonable because it was conducted inside the apartment, "which was a private location," and was "intended to find concealed evidence and prevent risks to officer safety." (Mot. at 16). Defendants also attempt to extend the "search incident to arrest" doctrine to the cavity search, even though no one was actually arrested. (Id. at 15).
The court will dispense with Defendants' last argument first. Defendants' attempt to expand the "search incident to arrest" doctrine to encompass cavity searches of individuals who were not actually arrested is unsupported by any legal authority, and the court declines to sanction such an expansion.
Additionally, Defendants do not argue that the MPD Officer Defendants had probable cause to believe that Michael — who was not named as a suspect in the warrant application — had committed any crime or possessed any contraband at the time of the cavity search, and there is nothing in the record that would have given rise to such probable cause. Moreover, although Pugh had sought permission to search the apartment as well as its occupants, the warrant only permitted the officers to search the premises. Accordingly, the cavity search cannot be supported by the probable cause determination made by the magistrate judge in issuing the warrant, which applied only to the apartment and not its occupants, or by any probable cause determination that may have been made by the MPD Officer Defendants during the execution of the search warrant, at least given the facts presently before the court. See Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) ("[A] person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.... Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be.").
The court also finds Defendants' assertion that the officers searched Michael's anal cavity "to find concealed evidence" to be ludicrous on its face. It is clear beyond cavil that "search[es] must be limited to the areas where the object of that infraction could be concealed." Safford
The court also finds no support for the contention that the cavity search was conducted to "prevent risks to officer safety." (Mot. at 16). For the reasons discussed below, in the section of this Memorandum Opinion relating to the handcuffing of Plaintiffs during the pendency of the search at issue in this case, it is clear that, as a general matter, a search warrant for a private home carries with it the authority to detain the home's occupants during the search. The question of whether the police may search people who they have detained during a premises search out of concern for police safety is far from settled, however. See, e.g., Germany v. United States, 984 A.2d 1217, 1227 (D.C.2009) (analyzing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny as pointing "toward a recognition that an individual's apparent association with a residence that police have been authorized to search for weapons is a circumstance that, along with the rest of the totality of circumstances, may provide a reasonable articulable basis for police to frisk the individual for weapons when they find him on the premises when they arrive to execute the search warrant"). But while frisking Michael or patting him down during the pendency of the home search at issue here may have passed constitutional muster, the facts as alleged by Plaintiffs indicate that the cavity search was far from the kind of protective search that could have been justified by concerns for officer safety. It is simply unreasonable to believe that concerns for officer safety could have warranted a search of Michael's anal cavity, especially since he was already handcuffed when the cavity search was conducted, rendering any theoretical weapons that he may have been secreting in his anal cavity presumptively out of his reach, and considering the MPD Officer Defendants' failure to knock and announce.
The court also considers the privacy and dignity interests implicated by the alleged cavity search. In United States v. Cameron, 538 F.2d 254, 258 (9th Cir.1976), the Ninth Circuit explained that a person subjected to a cavity search is "faced with the real prospect that the most intimate portions of his anatomy will be invaded and that he will suffer resulting pain or even physical harm." The Court held that for such searches "to comport with the reasonableness standard of the fourth amendment, [they] must be conducted with regard for the subject's privacy and be designed to minimize emotional and physical trauma." Id. It further clarified that "[i]n a situation thus laden with the potential for fear and anxiety, a reasonable
Similarly, in Evans v. Stephens, 407 F.3d 1272 (11th Cir.2005), the Eleventh Circuit denied qualified immunity to officers who had conducted strip searches in an abusive manner, including, among other things, by conducting them in places capable of heightening the subject's fear, using unnecessary force, threatening and ridiculing the search subjects, and penetrating the subjects with foreign objects in view of each other. The Court found that the constitutional "violation was obvious":
Id. at 1283.
It is also clear that strip and/or cavity searches must also be conducted in private. See, e.g., Campbell v. Miller, 499 F.3d 711 (7th Cir.2007) (strip search for drugs including visual anal examination conducted in back yard in view of other homes was unreasonable in its execution); Del Raine v. Williford, 32 F.3d 1024 (7th Cir.1994) (digital rectal search of an inmate conducted outside a private examination room cognizable under Fourth Amendment); Polk v. Montgomery County, Md., 782 F.2d 1196, 1201 (4th Cir.1986) (fact that visual body cavity inspection of pretrial detainee may have been performed in the presence of other detainees is especially relevant in determining validity of the search); Hill v. Bogans, 735 F.2d 391 (10th Cir.1984) (impermissible for jail to allow routine strip searches in public area of persons detained for minor traffic offenses); Iskander v. Village of Forest Park, 690 F.2d 126, 129 (7th Cir.1982) (strip searches conducted in public view are per se unreasonable); Logan v. Shealy, 660 F.2d 1007, 1014 (4th Cir.1981) (court invalidated strip search of detainee in police holding cell with broken or open window blinds, finding "[a]s a matter of law, no police officer in this day and time could reasonably believe that conducting a strip search in an area exposed to the general view of persons known to be in the vicinity — whether or not any actually viewed the search — is ... constitutionally valid").
Simply put, the cavity search alleged in this case appears to have been designed to
The court therefore finds that the MPD Officer Defendants could not have reasonably believed that, under the facts and
iv. The Extended Search For Drugs (Fourth Amendment) (Count VII)
Plaintiffs' allege that the MPD Officer Defendants conducted an unlawful search of the Pitts home and its occupants for drugs despite the fact that the warrant authorized only a premises search for "firearms and related accessories." (Am. Compl. ¶ 93). Plaintiffs also allege that "Defendants repeatedly shouted at [Michael] that they knew that he had drugs in the home and numerous times demanded that he show them where they could find drugs in his apartment" (id. ¶ 66), and that they "threatened Michael ... that, if he did not tell them where the drugs were, his partner would go to jail" (id. ¶ 73).
The Supreme Court has made clear that courts must evaluate officers' conduct under the Fourth Amendment objectively, not subjectively. See Horton, 496 U.S. at 138, 110 S.Ct. 2301 ("[E]venhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer."); see also Whren v. United States, 517 U.S. 806, 814, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) ("[T]he Fourth Amendment's concern with `reasonableness' allows certain actions to be taken in certain circumstances,
The Supreme Court has held, however, that "the reasonableness of a search's scope depends only on whether it is limited to the area that is capable of concealing the object of the search." Redding, 557 U.S. at 388-89, 129 S.Ct. 2633 (citing Wyoming v. Houghton, 526 U.S. 295, 307, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999) (police officers "may inspect passengers' belongings found in the car that are capable of concealing the object of the search"); Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) ("The scope of a search is generally defined by its expressed object."); United States v. Ross, 456 U.S. 798, 820, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) ("A lawful search ... generally extends to the entire area in which the object of the search may be found.")); cf. United States v. Johns, 469 U.S. 478, 487, 105 S.Ct. 881, 83 L.Ed.2d 890 (1985) (search found reasonable because "there is no plausible argument that the object of the search could not have been concealed in the packages"). "In keeping with this longstanding rule, ... the search must be limited to the areas where the object of that infraction could be concealed." Id. (citing Horton, 496 U.S. at 141, 110 S.Ct. 2301 ("Police with a warrant for a rifle may search only places where rifles might be") (quotation omitted); Ross, 456 U.S. at 824, 102 S.Ct. 2157 ("[P]robable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase")). Accordingly, the question before the court is not simply whether the MPD Officer Defendants were also looking for drugs while executing the search warrant, as such a question would go only to the officers' subjective state of mind. Rather, the question is whether the MPD Officer Defendants searched for drugs
Plaintiffs allege that the MPD Officer Defendants would not have searched inside Michael's anal cavity nor put their hands into the food that he had been preparing had they not been searching for drugs. (Am. Compl. ¶ 93) ("The MPD [O]fficer[Defendants] raiding the home unlawfully searched the home and its occupants — including a humiliating and unjustified strip search of Mr. Pitts's genitals and anal cavity and a search of the hot food that he had just prepared for the family — for drugs even though the warrant explicitly authorized only a search for firearms and related accessories."). This allegation is supported by common sense — while no objectively reasonable police officer could expect to find guns or gun paraphernalia in Michael's anal cavity or the dinner he was preparing for his family because of the size and nature of such items, an officer could at least conceivably expect to find drugs there. Because Plaintiffs have pleaded facts sufficient to establish that the MPD Officer Defendants expanded the physical scope of their search to encompass locations within the apartment where they would not have reasonably expected to find the gun-related items described in the warrant, but where they could have at least conceivably expected to find drugs, the court will deny Defendants' Motion as to Count VII insofar as it relates to the alleged search for drugs.
v. Handcuffing Plaintiffs Without Justification (Fourth Amendment) (Count VII)
Plaintiffs claim that the MPD Officer Defendants violated their Fourth Amendment rights by handcuffing them during the search despite the fact that the officers had no reason to believe that they had committed any crime or posed any threat, and despite the fact that Patrice is frail and disabled. (Am. Compl. ¶ 93).
In Michigan v. Summers, 452 U.S. 692, 693, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), police officers encountered Summers descending the front steps of his home as they arrived to execute a search warrant for drugs. The officers detained him while they searched the premises. Id. After finding drugs in the house and determining that Summers owned the house, the officers arrested and searched him, finding heroin in his coat pocket. Id. Summers moved to suppress the heroin as the product of an unlawful seizure, but the Supreme Court upheld the detention and search, finding that "a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted." Id. at 705, 101 S.Ct. 2587. The Court recognized that although "no special danger to the police is suggested by the evidence in this record, the execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence." Id. at 702, 101 S.Ct. 2587. The Court reasoned that because "a neutral magistrate rather than an officer in the field ... made the critical determination that the police should be given a special authorization to thrust themselves into the privacy of the home," the "connection of an occupant to that home gives the police officer an easily identifiable and certain basis for determining that suspicion of criminal activity justifies a detention of that occupant." Id. at 703-04, 101 S.Ct. 2587.
The Court found that the detention was lawful, explaining that Summers had established "that officers executing a search warrant for contraband have the authority to detain the occupants of the premises while a proper search is conducted ... because the character of the additional intrusion caused by detention is slight and because the justifications for detention are substantial" — namely, "preventing flight in the event that incriminating evidence is found; minimizing the risk of harm to the officers; and facilitating the orderly completion of the search." Id. at 98, 125 S.Ct. 1465 (citation and quotations omitted). In no uncertain terms, the Court described "[a]n officer's authority to detain incident to a search" as "categorical," in that "it does not depend on the quantum of proof justifying detention or the extent of the intrusion to be imposed by the seizure." Id. (citation and quotation omitted). It therefore concluded that "Mena's detention for the duration of the search was reasonable under Summers" simply because there was a warrant to search the address where she was an occupant. Id.; see also Bailey v. United States, ___ U.S. ___, 133 S.Ct. 1031, 1041-43, 185 L.Ed.2d 19 (2013) ("Summers recognized that a rule permitting the detention of occupants on the premises during the execution of a search warrant, even absent individualized suspicion, was reasonable and necessary in light of the law enforcement interests in conducting a safe and efficient search.... Detentions incident to the execution of a search warrant are reasonable under the Fourth Amendment because the limited intrusion on personal liberty is outweighed by the special law enforcement interests at stake.").
Additionally, the Court found that the officers' "use of force in the form of handcuffs to effectuate Mena's detention" was reasonable and lawful for the same reason that the detention was reasonable and lawful — "because the governmental interests outweigh the marginal intrusion." 544 U.S. at 99, 125 S.Ct. 1465 (citation omitted). While noting that Summers "stressed that the risk of harm to officers and occupants is minimized if the officers routinely exercise unquestioned command of the situation," the Court acknowledged that handcuffing an individual "who was already being lawfully detained during a search of the house was undoubtedly a separate intrusion in addition to detention." Id. at 99, 125 S.Ct. 1465 (citations and quotations omitted). The Court concluded, however, that "this was no ordinary search":
More recently, in United States v. Brinson-Scott, 714 F.3d 616 (D.C.Cir.2013), police officers executed a search warrant at the home of an individual who had been arrested for gun possession. That individual's brother was the sole occupant of the home at the time of the search. See 714 F.3d at 619. The officers handcuffed him, ordered him to sit in the living room, and told him that he was not under arrest, but was being detained to ensure the officers' safety during the search. See id. The D.C. Circuit, citing Summers and Mena, found that the detention was "undoubtedly lawful under the Fourth Amendment." Id. at 621.
Although the facts in this case are in some ways different from those in Mena and Brinson-Scott, they are sufficiently similar for the court to find that the MPD Defendants' actions in handcuffing and detaining the occupants of the Pitts home did not violate the Fourth Amendment, particularly given that the need to ensure the officers' safety was heightened in light of the fact that they were searching for guns and gun-related accessories. See Mena 544 U.S. at 100, 125 S.Ct. 1465. The court therefore finds that Plaintiffs have not pleaded sufficient facts to establish that the MPD Officer Defendants violated the Fourth Amendment by handcuffing them during their execution of the search warrant, and will grant Defendants' Motion as to Count VII insofar as it relates to the handcuffing.
vi. The Overall Conduct Of The Search (Fifth Amendment) (Count VII)
Plaintiffs allege that the conduct of the search shocks the conscience and violates the Fifth Amendment, and that the Due Process Clause protects citizens from the police conduct alleged here. It is well-settled, however, that "[w]here a particular Amendment `provides an explicit textual source of constitutional protection' against a particular sort of government behavior, `that Amendment, not the more generalized notion of `substantive due process,' must be the guide for analyzing [a party's] claims." Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). Because the Fourth Amendment governs the search at issue in this case, any constitutional harm arising from the search is governed exclusively by the Fourth Amendment. See Elkins v. District of Columbia, 690 F.3d 554, 562 (D.C.Cir.2012) (holding that plaintiff could not "use the search of her home or the seizure of documents as grounds for a claim under the Fifth Amendment" because "[t]he remedy for any harm to [plaintiff] from the search of her home is governed by the Fourth Amendment"). The court will therefore grant Defendants' Motion as to the Fifth Amendment claim in Count VII, and dismiss that claim as a matter of law.
For the reasons set forth above, Defendants' Motion to Dismiss is hereby
The court hereby
An appropriate Order accompanies this Memorandum Opinion.