INDIRA TALWANI, District Judge.
Following a drug and firearms investigation using a confidential informant, Plaintiff Herbert Davis was arrested in his home in Roxbury, Massachusetts. The arresting officer sought a criminal complaint the following day, and Davis was charged with both drug and gun crimes. Davis remained in custody on high bail for four months until a Superior Court judge reviewed the video of the purported firearm transaction—a video which shows a man that is not Davis conducting the transaction—and released him. The Commonwealth subsequently filed a nolle prosequi, dismissing all charges against Davis.
Davis brought this action alleging violations of 42 U.S.C. § 1983 and state law. The case proceeded to trial against Boston Police Officer Stephen McManus. After a nine-day trial, the court denied cross-motions for judgment as a matter of law without prejudice to renewed motions post-trial, and submitted the case to the jury. The jury entered a verdict in favor of McManus on all counts.
Now before the court is Davis's
Drawing all inferences in favor of the Defendant, the facts presented at trial are as follows:
McManus is a detective with the Boston Police Department ("BPD"). In 1995, McManus was assigned to the BPD's Bureau of Investigative Services, Drug Control Unit. [#312-5 at 1]. In 2008 or 2009, McManus was assigned to the FBI Gun and Drug Task Force ("FBI Task Force"). [#291 at 10:20-24]. FBI Special Agent Ryan O'Neil was also assigned to the FBI Task Force.
In April 2010, the FBI Task Force began to use a confidential informant named Darren Sheridan. Sheridan's handler was Special Agent O'Neil. McManus first met Sheridan in April 2010. Over the next few months, McManus interacted with Sheridan seventeen times. [#291 at 28:6-9].
At some point between April and August 2010, Special Agent Teahan was informed that Sheridan had engaged in illegal drug transactions. [#291 at 30:9-17]. Special Agent Teahan thereafter authorized the FBI Task Force to use Sheridan in future operations on a "strict case-by-case basis." McManus learned of Sheridan's limited designation from Agent O'Neil, and was aware at the time of the events at issue here that at least one investigation had been interrupted and one terminated as a result of Sheridan's unauthorized behavior. [#292 at 6:1-4].
On August 27th, Sheridan told FBI Task Force members that an arms trafficker, identified by Sheridan as "Bill," stored firearms and ammunition in a storage unit rented by a woman named Kim Poindexter.
On August 30th, Sheridan told the FBI Task Force members that Davis had acquired firearms from "Bill," and that the firearms were hidden in Davis's home at 11 Harold Park, Apartment 3, in a duffle bag in a bedroom closet. [#312-13]. Sheridan also said that Davis owned and operated a food truck business and that Davis sold crack cocaine in addition to food from his food trucks.
Sheridan identified RMV photos of Kim Poindexter and Davis and officers checked commercial and RMV databases to verify that Davis did live at 11 Harold Park, Apartment 3.
On September 7th, the FBI Task Force attempted a controlled crack cocaine purchase from Davis using Sheridan to conduct the purchase. [#312-14]. Before initiating the operation, the Task Force members searched Sheridan, and the FBI provided him with $50 of buy money, and wired him with a transmitter.
On September 14th, Sheridan met with members of the FBI Task Force, including McManus. [#312-15]. Sheridan stated to them that he had met with Davis twice in the prior week. Sheridan claimed that on September 9th Davis had indicated that he had an AR-15 rifle and crack cocaine for sale. Sheridan claimed further that on September 11th Davis showed Sheridan an AR-15 rifle and told him that the rifle cost $4,300.
On September 16th, McManus applied for a Blood warrant at Suffolk Superior Court to record conversations between Sheridan and Davis.
The Superior Court judge hearing the application found probable cause to believe that Davis was involved in a cocaine distribution organization, and issued the Blood warrant. [#312-8]. The subsequent Court Order and Warrant granting McManus's application was based on the drug allegations and made no finding of probable cause as to the illegal firearm trafficking organization.
Also on September 16th, Task Force members reviewed a text exchange between Sheridan and the 617-XXX-1779 number that Sheridan had represented as Davis's. [#312-16]. Sheridan called 617-XXX-1779 in the presence of Task Force agents.
The FBI Task Force organized a controlled cocaine purchase for later that day at 11 Harold Park.
During debriefing following this controlled buy, Sheridan reported that Davis was inside 11 Harold Park with two women, one of whom, Kim Poindexter, ran across the street in order to get the drugs for the buy.
Later that evening, Sheridan called Agent O'Neil and stated that Davis had called Sheridan and "seemed very paranoid."
On September 17th, McManus requested $3,700 from the Suffolk County District Attorney's Office in order to facilitate a controlled buy of the rifle from Davis. Tr. Ex. 49. The request identifies an "ongoing narcotics/firearms investigation by the Boston Police Department and Suffolk County District Attorney's Office" and makes no mention of the FBI Task Force.
On September 22, 2010, McManus applied for a search warrant from Suffolk Superior Court to search for evidence related to cocaine distribution and the sale of firearms at 11 Harold Park, Apartment 3, and on the person or in the possession of Davis or Kim Poindexter. [#312-4]. He asserted that there was probable cause to believe that Davis and Kim Poindexter were engaged in illegal drug distribution and illegal sales of firearms. As with the Blood warrant application, this application stated that McManus was assigned to the Boston Police Department's Bureau of Investigative Services, Drug Control Unit, but made no mention of his position with the FBI Task Force and made no mention of the FBI's limitation on Sheridan's use or that McManus was not Sheridan's handler.
McManus also reported on an exchange of text messages "regarding the purchase of the AR-15, the final of which from DAVIS stated `3700 now I'll get the rest later.' indicating he was willing to accept $3700 up front for the AR-15, and would collect the additional funds later," and that "DAVIS instructed [the confidential witness] to come to the residence."
McManus included in the application that the confidential witness was given both a "transmitter, and a concealed audio/video recording device," and then relayed the details about the drug transaction as described above, including Kim Poindexter's role in procuring the drugs, and the statements concerning the drug buy heard through the audio transmitter.
McManus reported further that the confidential witness had again discussed purchasing the rifle from Davis and that "DAVIS indicated that he still wanted to sell the rifle to [the confidential witness], and instructed [the confidential witness] to contact him" when ready to make the purchase.
The warrant authorized McManus to search Apartment 3 and to search Davis and Kim Poindexter following a controlled buy.
Also on September 22nd, Sheridan placed a call to phone number, 617-XXX-5457, while in the presence of agents. [#312-17]. Sheridan identified the person on the other end of the call as Davis.
On September 23rd, McManus met with other members of the FBI Task Force as well as the Boston Police Department SWAT team to coordinate the controlled buy of drugs and a firearm. [#312-18]. After the meeting, Agent O'Neil wired Sheridan with a camera and an audio device and gave Sheridan $3,700 in buy money and a black duffel bag.
Sheridan entered 11 Harold Park and exited several minutes later.
After Agent O'Neil received the items from Sheridan, the SWAT team entered 11 Harold Park pursuant to the search warrant, followed by McManus. McManus testified that by the time he entered the property, Davis was secured in the front hallway of the building. McManus placed Davis under arrest and searched him, discovering $3,573 on his person.
At some point, Kevin Poindexter, a resident of Apartment 1 on the first floor of 11 Harold Park, left the building. [#292 at 110:23-111:4]. McManus performed a pat frisk of Kevin Poindexter before he left.
Later that day, McManus went to the police station to assist in Davis's booking process. While at the police station, McManus realized that only $600 of the $3,573 found on Davis was marked buy money. McManus then returned to 11 Harold Park to search for the remaining buy money. McManus participated in the ongoing search of Davis's apartment. Davis's wife, Dedrea Poindexter Davis, and Kim Poindexter were present for the search. Two plastic bags of crack, a scale, some plastic baggies and some cash were seized from Apartment 3. McManus did not find any guns, gun paraphernalia or the phones associated with the phone numbers Sheridan had previously called in Apartment 3.
When McManus could not find the remaining $3,100 of buy money in Apartment 3, he went down to the first floor with Agent O'Neil, where they met Tina Howard. Howard lived in Apartment 1 on the first floor of 11 Harold Park with Kevin Poindexter. Howard told McManus and Agent O'Neil that she had no knowledge of any gun or money and that no one was in her apartment that morning.
While McManus and Agent O'Neil were present in Apartment 1, Kevin Poindexter returned to 11 Harold Park. Kevin Poindexter spoke to Howard and then told McManus and Agent O'Neil that Sheridan and Sheridan's wife, "Short," were in Apartment 1 that morning.
On September 24, 2010, McManus filed an application for a criminal complaint for drug crimes (distribution of a Class B substance, distribution of a Class B substance within a school zone, possession with intent to distribute a Class B substance, conspiracy to violate drug laws, and possession with intent to distribute within a school zone) and gun crimes (illegal sale of a large capacity firearm, illegal sale of a large capacity feeding device, possession of a firearm with obliterated serial number, receiving a firearm with an obliterated serial number, unlawful possession of ammunition, possession of a firearm while committing a felony), all related to the events of the day before. [#312-11 at 7]. The accompanying narrative, prepared by McManus, stated that the cooperating witness was equipped with electronic surveillance equipment and supplied with $3,700 of photocopied buy money.
The narrative further stated that Davis was arrested while in possession of $3,573, $600 of which was recorded buy money, and that crack cocaine was seized from Apartment 3 which Dedrea Poindexter-Davis claimed was hers. The narrative reported further that "Davis was found in possession of $3,573, which was seized and returned to the Suffolk Coun[ty] District Attorney's Office."
McManus also filed on the same day an application for a criminal complaint for distribution of a Class B substance and Distribution of a Class B substance within a school zone relating to the September 16 controlled buy. [#312-10]. The application was supported by an incident report, prepared on September 24 at McManus's direction by Boston Police Officer Stephen Murphy. This report stated that McManus (along with other officers) conducted a drug investigation at Harold Park, Apartment 3, and that the investigators "conducted a purchase of three plastic bags of crack cocaine" from Davis "with the assistance of a cooperating witness (CW) who made the actual buy." The report stated further that the CW "paid suspect Davis $640.00 USC in funds . . . and in return, was handed the three P/B's of crack cocaine by Herbert Davis." [#312-3].
At least in part as a result of these serious charges, Davis was held on bail. [#302 at 9:7-11:5; #312-2].
At some point, Assistant District Attorney Brian Fahy contacted McManus requesting a copy of the electronic surveillance video. [#292 at 112:23-113:2]. McManus testified that he retrieved the video that same day from the FBI and gave it to Attorney Fahy.
A motion for judgment as a matter of law may only be granted "when, after examining the evidence of record and drawing all inferences in favor of the nonmoving party, the record reveals no sufficient evidentiary basis for the verdict."
This standard is "especially exacting where, as here, the moving party bears the burden of proof on the issue in question."
"A district court's power to grant a motion for a new trial is much broader than its power to grant a [judgment as a matter of law]."
To prevail on a 42 U.S.C. § 1983 claim, Davis needed to establish at trial that McManus, acting under color of law, deprived him of his constitutional rights.
Probable cause to arrest exists "when police officers, relying on reasonably trustworthy facts and circumstances, have information upon which a reasonably prudent person would believe the suspect had committed or was committing a crime."
Here, whether weighing the evidence in the light most favorable to McManus and crediting McManus's testimony or independently weighing the evidence, there was probable cause to arrest Davis. McManus had obtained information provided to him by an informant, Sheridan, and had viewed text exchanges and listened to phone calls purportedly between Sheridan and Davis or members of Davis's family regarding drug and firearm transactions. On September 16, McManus observed Sheridan enter 11 Harold Park with $1,000 of buy money and exit with cocaine and $320 of buy money. Then on September 22, members of the Task Force observed Sheridan enter 11 Harold Park with $3,700 of buy money and exit 11 Harold Park with a firearm and drugs. Sheridan reported that Davis was present for the first transaction, and directly involved in the second. Sheridan was equipped with recording equipment on both occasions, which suggested that he would not be fabricating the events that he knew were being recorded. McManus searched Davis pursuant to the previously obtained search warrant and found $3,573 on him. These facts are sufficient to lead an ordinarily prudent officer to conclude that Davis had committed a crime and to arrest him immediately after the alleged transaction.
Generally, a "neutral magistrate's determination that probable cause exists for the individual's arrest is an intervening act that could disrupt any argument that the defendant officer had caused the continued unlawful seizure."
When a plaintiff can "demonstrate that law enforcement officers were responsible for his continued, unreasonable pretrial detention, the plaintiff has stated a constitutional injury that may be vindicated through a § 1983 action."
In determining whether the criminal complaint pursuant to which Plaintiff was detained was supported by probable cause, the court begins with the allegations set forth in the application for the complaint.
As an initial matter, regardless of the omitted or misrepresented information discussed below, there was probable cause that drug and gun crimes were committed
McManus supported the application for the criminal complaint for the September 16 distribution of a Class B substance and distribution of a Class B substance within a school zone, [#312-10], with an incident report, [#312-3], prepared at McManus's direction. [#292 at 74:8-16]. This report stated that McManus (along with other officers) conducted a drug investigation at Harold Park, Apartment 3, and that the investigators "conducted a purchase of three plastic bags of crack cocaine" from Davis "with the assistance of a cooperating witness (CW) who made the actual buy." The report stated further that the CW "paid suspect Davis $640.00 USC in funds . . . and in return, was handed the three P/B's of crack cocaine by Herbert Davis." [#312-3]. This statement was false—even by Sheridan's account, Sheridan did not pay Davis and Davis never handed him any drugs. [#312-16; #292 at 8:16-19]. The false statement was material to the magistrate's determination of probable cause, as the false statement is the only information in the application for the criminal complaint that ties Davis to the September 16 crime.
The application for the criminal complaint relating to the September 23 transaction, prepared by McManus, stated that Davis had $600 of buy money on him when he was searched by McManus immediately after the buy, and that crack cocaine was obtained from a bedroom in Davis's apartment. Neither of these facts are in dispute. The crack cocaine in the apartment along with the $600 of buy money found on Davis's person immediately after the transaction were sufficient facts to provide probable cause as to the September 23 drug transaction, and the issues regarding McManus's reliance on Sheridan discussed below are not material to the September 23 drug charges. But Davis was held on high bail because of the firearm, and accordingly, the critical determination is whether there was probable cause to charge Davis with the firearms transaction.
There was no evidence tying Davis to the firearms other than Sheridan's testimony. McManus's narrative, however, obfuscated this fact. The application reported that the cooperating witness "was observed by surveillance entering 11 Harold [Park] Apt #3." [#312-11 at 7]. This statement was false; while the cooperating witness was observed entering the multi-unit building, he was not observed entering Apartment 3 where Davis resided. [#292 at 103:24-104:10]. The application also stated that the investigation was "armed with a Blood warrant" and that the cooperating witness was "equipped with electronic surveillance equipment." McManus omitted the facts that the surveillance equipment was not working and that despite the Blood warrant requiring the return of the tape, the tape was not in the custody of any of the officers listed in the application and had not been returned to the court. The application also referenced a "recorded call" setting up the purchase of the gun, but did not mention that the recording device had "malfunctioned" and there was no recording of this part of the conversation.
The application stated further that the cooperating witness was provided $3,700 for the buy, and that when Davis was searched, he was in possession of $3,573, $600 of which was recorded buy money. The application went on to say that the $3,573 was "returned to the Suffolk Count[y] District Attorney's Office." The application omitted the fact that not just $600 but all of the buy money had been recorded, and therefore the approximately $3,000 that was "returned" to the DA's Office was not buy money. The evidence regarding the $600 of buy money also does not give rise to probable cause that Davis was involved in the firearm sale, where Sheridan had told the officers he paid $700 for the drugs and the prior drug buy for the same amount of drugs was for approximately $640. By contrast, the gun was priced at $3,000.
McManus included Sheridan's statements inculpating Davis: that the person who answered the recorded call finalizing the arrangements for the gun transaction was Davis; that Sheridan met with Davis in Apartment 3; that Davis had offered the gun for $3,000; and that Sheridan paid Davis $3,700 ($3,000 for the gun and $700 for half an ounce of crack cocaine). At the same time, he omitted all information that would allow the magistrate to independently evaluate Sheridan's credibility, making no mention that: (1) at the time of Davis's arrest, Sheridan was only authorized for FBI use on a case-by-case basis due to previous misconduct; (2) Sheridan had withheld the fact that he was related to Deirdre Poindexter-Davis, Kim Poindexter, and Kevin Poindexter, and the officers only learned of the familial relationship from Kevin Poindexter; (3) Sheridan had withheld the fact that he visited 11 Harold Park socially; (4) $3,000 of the buy money was missing; (5) Sheridan had given the officers the same number for both Kim Poindexter and Davis; and (6) no efforts had been made to verify the phone numbers given for Davis.
In sum, the application submitted to the magistrate tied Davis to the gun allegations only by false statements (that the cooperating witness was surveilled going into Davis's apartment); misleading statements (that $3,573 found on Davis was "returned" to the District Attorney and that a surveillance video and recorded call relating to the transaction existed); and Sheridan's statements with no information to allow the magistrate to independently evaluate Sheridan's reliability. Due to these omissions and misrepresentations, the magistrate was required "to make his probable cause decision on the basis of a tainted submission."
To establish causation, Davis needed to show more, however, than material falsehoods, misrepresentations, or omissions. Instead, "the plaintiff must demonstrate that the actions or statements of law enforcement officers amounted to deliberate falsehood or . . . reckless disregard for the truth."
On a motion for a new trial, the court may independently weigh the evidence and consider the credibility of the witnesses who testified. The court notes here that McManus prepared the affidavit concerning the September 23 events and directed the drafting of the report concerning the September 16 drug purchase after learning that $3,100 of the buy money that McManus had personally obtained from District Attorney was missing. The court finds substantial questions as to Defendant's credibility that bear on the issue of whether the misstatements in the material submitted to the magistrate were made deliberately, recklessly, or merely negligently.
The first question concerns the arrest of Davis's wife, Dedrea Poindexter Davis. McManus wrote in the application for Davis's criminal complaint that Dedrea Poindexter Davis asserted that the crack cocaine found in Apartment 3 was hers and that she was arrested for that reason. [#312-11]. The FBI report written by Agent O'Neil recorded that Kim Poindexter claimed ownership of the crack. [#312-19]. McManus's assertion that Dedrea Poindexter Davis, rather than Kim Poindexter, claimed ownership is undermined not only by the FBI report, but also by the fact that in advance of the search, McManus's own search warrant affidavit specifically asserted that there was probable cause to believe that Kim Poindexter (not Dedrea Poindexter Davis) was engaged in illegal drug distribution. [#312-4].
The second question concerns McManus's failure to return the video to the Superior Court that had issued the Blood warrant. Common sense suggests that given the missing $3,100, the video was promptly viewed—if not by McManus then by other officers who may have relayed to McManus what was (and was not) on the tape. Nevertheless, McManus maintains that he was surprised to learn months later that Davis was not on the video. He offers no explanation for his failure to comply with the court order.
The third question concerns the differences in the FBI reports and McManus's affidavit regarding the statements from Kevin Poindexter. McManus's investigation was conducted as part of a Joint Task Force with the FBI. McManus relied on information from the other agents where that information supported his complaint. He also contends that he was present when Special Agent Ryan spoke with Kevin Poindexter. Yet his affidavit omits an important piece of information which was included in the FBI report. The FBI stated that Kevin Poindexter asserted that Sheridan was carrying a black duffle bag when he came by Apartment 1 that morning. The FBI had given Sheridan a black duffle bag prior to the start of the operation, and there was no reason that Kevin Poindexter would have known that. Thus, Kevin Poindexter's statement placed Sheridan in Apartment 1 during the controlled buy, contradicting McManus's assertion that Sheridan met with Davis only in Apartment 3.
"[T]he district court has the power and duty to order a new trial whenever, in its judgment, the action is required in order to prevent injustice."
Accordingly, Plaintiff's
IT IS SO ORDERED.
