ROBERT E. WIER, District Judge.
Lexington Police Department Officers Justin Muravchick and Brian Cobb,
On the evening of June 23, 2016, Officers Muravchick and Cobb, of the LPD, conducted a traffic stop of Gover. DE #25-1 (Gover Depo.), at 21-22. Plaintiff thought the stop was "for an expired registration plate." DE #1, at ¶ 8; see also DE #25-1, at 22 ("Were you aware that your registration was improper? I was. Did you think that was the reason they were pulling you over? I did."). Muravchick confirmed this. DE #27-1 (Muravchick Depo.), at 19, 23. After Gover pulled over, Muravchick approached the driver's window; Cobb stayed behind the truck cab, at the pillar on the passenger side. DE #25-1, at 22-23; see also DE #26-1 (Cobb Depo.), at 18-19. After Gover showed Muravchick his license and insurance, Muravchick started back toward the police car, but "was stopped by Cobb." DE #25-1, at 24. The officers "had a conversation that [Gover] couldn't hear." Id. Cobb stated that, in this conversation, he "advised" Muravchick "to pull Mr. Gover out of the vehicle." DE #26-1, at 23. Muravchick said that Cobb "alert[ed]" him that he (Cobb) thought Gover was "destroying something" and "smashing a substance on the floorboard." DE #27-1, at 36-37. Gover denies using his "foot to attempt to grind anything into the floorboard or mat[.]" DE #28-7 (Gover Affidavit), at ¶ 5.
Following this conversation, according to Gover, Muravchick "turned back around, approached the driver's door, and he asked if it would be okay for them to search my vehicle." DE #25-1, at 25. Gover did not give consent—he "asked what for"—and the situation began to escalate. Id. Gover eventually exited the vehicle, and Cobb "asked what did you do with the cocaine[?]" Id. at 25-26. Plaintiff "had no idea what he was talking about." Id. at 26. While the driver's door was open, Cobb viewed material on the driver's floorboard that he, utilizing his training and experience, suspected to be crack cocaine. DE #26-1, at 25-27.
Muravchick kept Gover "up against the backside of my tail bed," and Cobb began searching the vehicle, lifting the driver's side floor mat. DE #25-1, at 26. Muravchick patted Gover down and "led [him] to a curb directly behind [his] truck for [him] to sit down." Id. at 27. Cobb, according to Gover, kept "searching" his truck—specifically the "the driver's side, the floorboard." Id. During this process, Gover learned the allegation that "Cobb had seen me throw cocaine in the floor and stomp on it." Id. at 28; see also DE #26-1, at 20 (Cobb agreeing that he saw "Gover grinding his heel into the carpet on the floorboard"). Gover could not recall, in deposition, if he had been moving his knee, DE #25-1, at 28, and he later swore (as the Court already partially recounted) that he "never used my foot to attempt to grind anything into the floorboard or mat on my floorboard during any point on the night of my arrest" and that he "never made any movements with my foot that would be interpreted to be grinding anything into the floorboard of my truck." DE #28-7, at ¶¶ 5-6.
Gover eventually learned that Cobb "scraped" material from the floorboard and field-tested it. DE #25-1, at 29-30. Gover "knew" this material actually was "doughnut icing" from doughnuts he purchased "two Sundays prior to the incident" from "Kroger bakery," not cocaine. Id. at 30. Cobb described seeing two different substances in two different locations in the floorboard: "There was a little crushed up white rock and powder right where Mr. Gover's heel was, back away from the gas pedal towards the seat, and then there was also another white substance, powdery, on the floor closer to the gas pedal." DE #26-1, at 25-26. Despite Gover's confidence that the material was doughnut icing, one field test came back positive for cocaine. DE #25-1, at 32. Another field test, though, was negative for controlled substances. DE #26-1, at 29-30.
After the positive field test, according to Plaintiff, "they continued to search my truck," while Gover remained on the curb, not yet under arrest. DE #25-1, at 32-33. "They" continued to search "for an extended period of time." Id. at 33. Muravchick confirmed that he searched the truck "after [Gover] was under arrest or at some point during the arrest[.]" DE #27-1, at 32-34. After the search(es) concluded, Muravchick arrested Gover. DE #25-1, at 33.
Based on these occurrences, Kentucky levied several criminal charges against Gover, to wit, no/expired registration plate, tampering with physical evidence, and possession of controlled substance (cocaine) 1st offense. See DE #24-4, at 1. Gover posted bond and was released the next day, June 24, 2016. See id. at 1-2; DE #25-1, at 42 (Gover confirming he was "in custody for 22 hours").
The Commonwealth eventually dismissed all charges without prejudice,
A court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A reviewing court must construe the evidence and draw all reasonable inferences from the underlying facts in favor of the nonmoving party. Matsushita Elec., 106 S. Ct. at 1356; Lindsay v. Yates, 578 F.3d 407, 414 (6th Cir. 2009). Additionally, the court may not "weigh the evidence and determine the truth of the matter" at the summary judgment stage. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2511 (1986).
The burden of establishing the absence of a genuine dispute of material fact initially rests with the moving party. Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2553 (1986) (requiring the moving party to set forth "the basis for its motion, and identify[] those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate an absence of a genuine issue of material fact"); Lindsay, 578 F.3d at 414 ("The party moving for summary judgment bears the initial burden of showing that there is no material issue in dispute."). If the moving party meets its burden, the burden then shifts to the nonmoving party to produce "specific facts" showing a "genuine issue" for trial. Celotex Corp., 106. S. Ct. at 2253; Bass v. Robinson, 167 F.3d 1041, 1044 (6th Cir. 1999). However, "Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 106 S. Ct. at 2552; see also id. at 2557 (Brennan, J., dissenting) ("If the burden of persuasion at trial would be on the non-moving party, the party moving for summary judgment may satisfy Rule 56's burden of production in either of two ways. First, the moving party may submit affirmative evidence that negates an essential element of the nonmoving party's claim. Second, the moving party may demonstrate to the Court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim." (emphasis in original)).
A fact is "material" if the underlying substantive law identifies the fact as critical. Anderson, 106 S. Ct. at 2510. Thus, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. A "genuine" issue exists if "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Id. at 2511; Matsushita Elec., 106 S. Ct. at 1356 ("Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'") (citation omitted). Such evidence must be suitable for admission into evidence at trial. Salt Lick Bancorp v. FDIC, 187 F. App'x 428, 444-45 (6th Cir. 2006).
Defendants primarily argue that qualified immunity protects them from Gover's claims. See DE #24, at 7-16. "[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 102 S.Ct. 2727, 2738 (1982); see also, e.g., Robertson v. Lucas, 753 F.3d 606, 610 (6th Cir. 2014) (affirming grant of qualified immunity to state and federal law enforcement officers); Barnes v. Wright, 449 F.3d 709, 711 (6th Cir. 2006) (reversing the denial of qualified immunity to law enforcement officers in a § 1983 suit).
"Since the defendant officers have raised the qualified immunity defense, plaintiff bears the burden of showing that defendants are not entitled to qualified immunity." Johnson v. Moseley, 790 F.3d 649, 653 (6th Cir. 2015). In the summary judgment context, the Court "view[s] all evidence, and draw[s] all reasonable inferences, in the light most favorable to the nonmoving party," Gover. Kent v. Oakland Cnty., 810 F.3d 384, 390 (6th Cir. 2016) (internal alteration removed).
To evaluate the qualified immunity question, courts engage in a two-part inquiry: "First, taken in the light most favorable to the party asserting the injury, do the facts alleged show that the [official]'s conduct violated a constitutional right? Second, is the right clearly established?" Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006); see also Pearson v. Callahan, 129 S.Ct. 808, 818 (2009) (holding that courts may address the two questions in either order). The right must be "so clearly established in a particularized sense that a reasonable officer confronted with the same situation would have known that his conduct violated that right." Moseley, 790 F.3d at 653. The Court must avoid "a high level of generality" in assessing the clarity of the right or misconduct. Mullenix v. Luna, 136 S.Ct. 305, 308 (2015) (per curiam) ("The dispositive question is whether the violative nature of particular conduct is clearly established. . . . This inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition." (internal quotation marks omitted) (citing Brosseau v. Haugen, 125 S.Ct. 596 (2004))). "Clearly established means that, at the time of the officer's conduct, the law was sufficiently clear that every reasonable official would understand that what he is doing is unlawful. In other words, existing law must have placed the constitutionality of the officer's conduct beyond debate. This demanding standard protects all but the plainly incompetent or those who knowingly violate the law." Dist. of Columbia v. Wesby, 138 S.Ct. 577, 589 (2018) (internal quotation marks and citations removed).
Gover tells the Court that all the claims in this case "are predicated on a violation of the Fourth Amendment." DE #28, at 8. The Court evaluates each Count in turn.
Wrongful Arrest—"An arresting agent is entitled to qualified immunity if he or she could reasonably (even if erroneously) have believed that the arrest was lawful, in light of clearly established law and the information possessed at the time by the arresting agent." Kennedy v. City of Villa Hills, 635 F.3d 210, 214 (6th Cir. 2011) (internal quotation marks and alteration removed). "Thus, even if a factual dispute exists about the objective reasonableness of the officer's actions, a court should grant the officer qualified immunity if, viewing the facts favorably to the plaintiff, an officer reasonably could have believed that the arrest was lawful." Id. The Circuit has elaborated:
Fridley v. Horrighs, 291 F.3d 867, 872 (6th Cir. 2002). The probable cause determination generally requires a common sense, totality of the circumstances assessment of the basis for a seizure or search. See, e.g., United States v. Torres-Ramos, 536 F.3d 542, 554-55 (6th Cir. 2008). The standard requires "more than mere suspicion" but not "evidence to establish a prima facie case . . . much less evidence sufficient to establish guilt beyond a reasonable doubt." United States v. Strickland, 144 F.3d 412, 416 (6th Cir. 1998). Importantly, the probable cause standard is objective. "Subjective intentions play no role in probable cause Fourth Amendment analysis." Schneider v. Franklin Cnty., 288 F. App'x 247, 251 (6th Cir. 2008) (citing Whren v. United States, 116 S.Ct. 1769, 1773-74 (1996)). The Court eschews hyper-technicality and commonsensically probes and considers the evidence.
A key issue is, thus, whether Defendants had probable cause to suspect Gover of criminality. Viewing the facts in the light most favorable to Plaintiff, Defendants had— and reasonably could have believed that they had—probable cause to arrest Gover based on, at a minimum, the expired registration plate.
"Before the owner of a motor vehicle . . . may operate it or permit its operation upon a highway, the owner shall apply for registration[.]" KRS 186.020(1). This registration, though, ultimately "expir[es] . . . as provided by KRS 186A.035[.]" See KRS 186.020(5). A different subsection—KRS 186.170(1)—particularly regulates vehicle registration plates, outlawing, inter alia, any person "operat[ing] a motor vehicle unless the insignia [of current registration] is affixed upon it." Kentucky, per this statutory amalgamation, thus criminalizes, in common parlance, "operating a motor vehicle with no/expired registration plates[.]" See, e.g., Piercy v. Commonwealth, 303 S.W.3d 492, 496-97 (Ky. Ct. App. 2010) ("In the instant case, it appears that Piercy was illegally driving a vehicle with expired tags, or at the very least, that he was about to drive a vehicle with expired tags, and was thus about to commit a crime." (treating KRS 186.170 as the definitional statute)); Bennett v. Commonwealth, No. 2009-CA-349-MR, 2010 WL 3604096, at *2-4 (Ky. Ct. App. Sept. 17, 2010) (affirming such a conviction).
This criminal offense, under Kentucky law, is "a violation." KRS 186.990(1). A "violation" in the Commonwealth is "an offense, other than a traffic infraction, for which a sentence to a fine only can be imposed." KRS 500.080(17); see also KRS 431.060(3) ("Offenses punishable by a fine only or by any other penalty not cited herein, whether in combination with a fine or not, are violations."). An "offense," in turn, and in relevant part, is "conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state[.]" KRS 500.080(11). "Pursuant to Kentucky statute, an officer may not arrest for a mere violation." United States v. Sullivan, No. 3:09-CR-28, 2010 WL 1688784, at *4 n.2 (W.D. Ky. Apr. 26, 2010); see generally KRS 431.005. The Kentucky Court of Appeals has explicitly labeled operating a motor vehicle with an expired registration plate criminal conduct—"a crime." Piercy, 303 S.W.3d at 496-97.
While Kentucky chooses to preclude arrests for alleged "violations," that policy decision does not define or modify what the Fourth Amendment permits. See Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir. 1995) ("Plainly, Raisor cannot be liable under § 1983 unless he violated one of Pyles' federal constitutional rights. Pyles' rights under Kentucky law, including her right as an alleged misdemeanant to be arrested only when the misdemeanor is committed in the presence of the arresting officer, are not grounded in the federal Constitution and will not support a § 1983 claim."). "While the states are, of course, free to enact laws that are more protective of individual rights than the United States Constitution, a mere violation of such a state law will not establish a proper claim under § 1983." Id. at 1215-16 ("In sum, Raisor's alleged violation of Kentucky law is not actionable under § 1983.").
The Fourth Amendment, in contrast to Kentucky law, permits arrest "for even a very minor offense." Sullivan, 2010 WL 1688784, at *4. Plainly stated: "If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender." Atwater v. City of Lago Vista, 121 S.Ct. 1536, 1557 (2001); see also, e.g., Vidal v. Lexington Fayette Urban Cnty. Gov't, No. 5:13-117-DCR, 2014 WL 4418113, at *5 (E.D. Ky. Sept. 8, 2014) (concluding that the Fourth Amendment permits arrest for violation of a noise ordinance). The Fourth Amendment, quite simply, does not "forbid[] a warrantless arrest for a minor criminal offense," even those "punishable only by a fine," such as the Kentucky violation at issue here. See Atwater, 121 S. Ct. at 1541; accord Virginia v. Moore, 128 S.Ct. 1598, 1607 (2008) ("We conclude that warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution, and that while States are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment's protections."); Reid v. Henry Cnty., Ga., 568 F. App'x 745, 748-49 (11th Cir. 2014) ("The existence of a traffic violation can provide an officer with arguable probable cause to make an arrest, even though the offense is minor or normally punishable by a monetary citation, and even if the officer had no knowledge of that violation at the time. . . . As long as probable cause existed to arrest the suspect for any offense, the arrest and detention are valid even if probable cause was lacking as to some offenses, or even all announced charges.") (citing Atwater, with other citations omitted).
Applying these principles makes resolving Gover's wrongful arrest claim easy, considering the expired registration plate charge alone. Whether Defendants acted validly under Kentucky law (again, considering that one charge, in isolation), they undoubtedly had probable cause to believe Gover had committed the registration-related violation, as Plaintiff himself admitted. DE ##27-1, at 19-23 (Muravchick confirming that LINK/NCIC, available through his cruiser computer system (the "MDC, mobile data computer," utilizing a program called "Aegis"), reported Gover's "registration [a]s expired" and gave "a hit"—i.e., it provided "the vehicle registration [and] the vehicle owner's information");
Unconstitutional Pretrial Detention—The prior conclusion also resolves Gover's unconstitutional detention claim. "[D]etention without probable cause is an actionable Fourth Amendment injury under § 1983." Gregory v. City of Louisville, 444 F.3d 725, 749 (6th Cir. 2006). As recounted above, Defendants had probable cause to believe that Gover had committed a criminal offense (the expired registration plate violation), thus permitting (again, under the Fourth Amendment) his arrest and detention. As the Court previously mentioned, Gover was detained less than a day. See DE #25-1, at 42. Probable cause defeats this claim, and Muravchick and Cobb had it.
Malicious Prosecution—"To succeed on a malicious-prosecution claim under § 1983 when the claim is premised on a violation of the Fourth Amendment, a plaintiff must prove the following: First, the plaintiff must show that a criminal prosecution was initiated against the plaintiff and that the defendant made, influenced, or participated in the decision to prosecute. Second, because a § 1983 claim is premised on the violation of a constitutional right, the plaintiff must show that there was a lack of probable cause for the criminal prosecution. Third, the plaintiff must show that, as a consequence of a legal proceeding, the plaintiff suffered a deprivation of liberty, as understood in our Fourth Amendment jurisprudence, apart from the initial seizure. Fourth, the criminal proceeding must have been resolved in the plaintiff's favor." Sykes v. Anderson, 625 F.3d 294, 308-09 (6th Cir. 2010) (internal quotation marks, citations, and footnote removed).
For essentially the same reasons discussed, this claim fails on, at a minimum, prong two. Gover does not "show that there was a lack of probable cause for the criminal prosecution." Id. To the contrary, for all the reasons previously discussed, there was probable cause (at a minimum) to believe he committed the registration violation.
Unconstitutional Search—An unconstitutional search can validly undergird a § 1983 claim. See, e.g., Smith v. Thornburg, 136 F.3d 1070, 1074-76 (6th Cir. 1998); Thomas v. Plummer, 489 F. App'x 116, 120 & n.5 (6th Cir. 2012) (countenancing a "Fourth Amendment illegal-search claim"); Pullin v. City of Canton, 133 F.Supp.2d 1045, 1053 & n.7 (N.D. Ohio 2001). "To maintain" such a claim, Gover "must show: (1) that [the] search did, indeed, violate the Fourth Amendment; and (2) that, as of [the date of the search], th[e] violation was so clear that any reasonable officer would have understood that []he should not have done what [the officer(s)] did." Thomas, 489 F. App'x at 120. Even if, though, a search was, in fact, invalid under the Fourth Amendment, qualified immunity protects "officers' reasonable mistake[s] of fact." Smith, 136 F.3d at 1076; see also id. at 1091 (Clay, J., dissenting) (reasoning that the question becomes, assuming Plaintiff establishes "for purposes of summary judgment, that the search was conducted without probable cause, . . . whether Defendants reasonably could have thought they possessed probable cause to search Plaintiff's vehicle").
Unlike the first three Counts, this claim requires a broader examination of the litigants' interactions on June 23, 2016. Probable cause of a plate violation, alone, may not have justified a warrantless search of the vehicle.
The first issue is the search
The question is, thus, whether viewing the floorboard substances
Cobb's multiple years of training and experience told him the substances he saw were consistent with cocaine. Specifically, Cobb saw "a little crushed up white rock and powder right where Mr. Gover's heel was, back away from the gas pedal towards the seat," as well as "another white substance, powdery, on the floor closer to the gas pedal." DE #26-1, at 25-26. Cobb emphasized that he saw "little rocks," like "clumps of the suspected substance." Id. at 26. "[I]t was a white rock-like substance . . . with some powder residue around it[.]" Id. "[B]ased on my experience and training," Cobb thought "it was crack cocaine." Id. This was due to "the rock," the "off-white color of the substance," and "the texture." Id. at 27. Muravchick (already through two academies and with years in the field) corroborated this description and the opinion, DE #27-1, at 42 ("It was a white rock-like substance with powder residue around the rock-like substance."), agreeing that the material, applying his own training and experience, "resembled what I have seen in the past as crack cocaine." Id.
Officers continued to search Plaintiff's truck after conducting two cocaine field tests—one of which returned a positive hit, and one of which came back negative.
Clearly, a positive field test alone would only bolster officers' preexisting probable cause. See, e.g., Green v. Webster, 359 F. App'x 249, 251 (2d Cir. 2010) ("A reasonably trustworthy field test that returns a `positive' result for the presence of cocaine is a sufficient basis for probable cause.");
The co-existence of a negative field test neither alters this result nor meaningfully calls into question the enduring probable cause, in this scenario. Factually, here, the negative field test was easily explainable. Remember, the officers described two distinct areas in the driver's floorboard containing suspected crack: one near the pedals, and one toward the seat (where Gover's heel would have been). See, e.g., DE #26-1, at 25-26. The seat-area suspected crack, per Cobb, included the "rock," while the pedal-area suspected crack was solely "powdery." See id. Muravchick corroborated this. DE #27-1, at 41-42 (Q: "[W]ere both the areas connected with some residue or powder or were they two separate areas? A: Two separate areas."). Thus, the officers quite reasonably could have concluded (faced with conflicting field test results) that the two substances were distinct, but that one of them was, in fact, coke. Regardless, when one field test came back positive, "a negative test would not have eliminated probable cause. An . . . officer is not required to resolve disputed factual issues" in a probable cause milieu. Hines v. Port Auth. of N.Y. & N.J., No. 94 CIV. 5109 NRB, 2000 WL 420555, at *7 n.4 (S.D.N.Y. Apr. 18, 2000);
Finally, to the extent Gover challenges Muravchick's post-arrest search of his (Gover's) person,
Per this discussion, the officers' actions in this scenario were constitutionally valid (and certainly, at a minimum, in the qualified immunity context, not clearly invalid). Accordingly, Muravchick and Cobb have immunity from Gover's claims.
For these reasons, the Court
The Court, thus, also rejects the argument that a jury could believe that both field tests "turned up negative[.]" Id. at 10. The case proof does not support—indeed flatly forecloses—such rank speculation. See, e.g., Gillham v. Tenn. Valley Auth., 488 F. App'x 80, 85-86 (6th Cir. 2012) ("To survive summary judgment . . . [a] party may not rest on speculation or a `mere possibility' of a factual dispute."); Rand v. CF Indus., Inc., 42 F.3d 1139, 1146-47 (7th Cir. 1994) (explaining that a party "cannot avoid summary judgment merely by asserting that [witnesses] are lying"); Mitchell v. Toledo Hosp., 964 F.2d 577, 584 (6th Cir. 1992) ("It is now quite well-established that, in order to withstand a motion for summary judgment, the party opposing the motion must present `affirmative evidence' to support his/her position[.]"). "The mere fact that the laboratory test returned a contrary result does not raise an inference that [the officers] w[ere] lying when [they] said [the] test[] came out positive[.] . . . [Gover]'s allegations amount to speculation, and mere speculation will not overcome a motion for summary judgment." Lamping v. Walraven, 30 F. App'x 577, 580 (6th Cir. 2002).
Additionally, whether the officers' "actions may have violated [LPD]'s policies" does not defeat qualified immunity; "the issue is whether [the officers] violated the Constitution, not whether [they] should be disciplined by the local police force." Smith v. Freland, 954 F.2d 343, 347 (6th Cir. 1992). Simply put, here, internal police "policies do not determine constitutional law." Id. at 348; see also, e.g., Cooper v. Cnty. of Washtenaw, 222 F. App'x 459, 470 (6th Cir. 2007); Bradley v. City of Ferndale, 148 F. App'x 499, 508 (6th Cir. 2005).
