JOY FLOWERS CONTI, Chief District Judge.
This is a civil rights action filed by plaintiff John Latour ("Latour") under 42 U.S.C. § 1983. Latour alleges that local law enforcement officials violated his Fourth Amendment rights by (1) recklessly omitting material facts from a search warrant application for his business property to search for suspected illegal synthetic marijuana (the "property-based Fourth Amendment claim") and (2) seizing his person without legal justification pending the application for the search warrant (the "person-based Fourth Amendment claim"). Defendant Joshua Lamancusa ("Lamancusa"), the District Attorney of Lawrence County, Pennsylvania, is the only remaining defendant in this action. He filed a motion for summary judgment under Federal Rule of Civil Procedure 56. (ECF No. 62.) Fully briefed, Lamancusa's motion is ripe for disposition.
The court will grant in part and deny in part Lamancusa's motion for summary judgment. Lamancusa's motion will be granted with respect to Latour's property-based Fourth Amendment claim. Genuine disputes of material fact, however, preclude the entry of summary judgment in favor of Lamancusa on Latour's person-based Fourth Amendment claim. His motion will be denied with respect to that claim.
On November 14, 2013, Latour filed a complaint in this court against the Ellwood City Police Department, police officers David Kingston ("Officer Kingston") and Michael McBride ("Officer McBride"), civilian Stephen McCullar ("McCullar"), and Lamancusa. (ECF No. 1.)
On February 5, 2014, Latour filed an amended complaint replacing the Ellwood City Police Department with the Borough of Ellwood City ("Ellwood City") as a defendant.
On April 7, 2014, Latour voluntarily dismissed McCullar from this action.
On May 28, 2014, the court held a hearing at which it granted motions to dismiss Latour's first amended complaint filed by Ellwood City, Officer Kingston, Officer McBride, and Lamancusa. See (Text Minute Entry, 5/28/2014 (granting the motions to dismiss filed at ECF Nos. 19 and 21 and dismissing Latour's state law claims against all defendants with prejudice).)
On June 10, 2014, Latour filed a second amended complaint. (ECF No. 38.) On June 24, 2014, Lamancusa filed a motion to dismiss Latour's Fourth Amendment § 1983 claims against him. (ECF No. 41.) On August 13, 2014, the court held a hearing at which it denied Lamancusa's motion to dismiss. See (Text Minute Entry, 8/13/2014.) On August 25, 2014, Lamancusa filed an answer and affirmative defenses to Latour's Fourth Amendment § 1983 claims against him. (ECF No. 50.)
On May 4, 2015, the parties filed a stipulation dismissing Ellwood City, Officer Kingston, and Officer McBride from this lawsuit with prejudice (ECF No. 57), and on July 7, 2015, the court entered an order to that effect, leaving Lamancusa as the only defendant remaining in this action. See (ECF No. 60.)
On September 14, 2015, Lamancusa filed this Rule 56 motion for summary judgment, a supporting brief, and a concise statement of material facts with accompanying exhibits. (ECF Nos. 62-65.) On October 14, 2015, Latour filed a brief opposing Lamancusa's motion and a response to his statement of facts. (ECF Nos. 66, 67.) On October 28, 2015, Lamancusa filed a reply brief and responses to Latour's statements of fact. (ECF Nos. 68, 69.) On November 4, 2015, Lamancusa filed a joint concise statement of material facts. (ECF No. 70.)
In general, the chemical makeup of synthetic marijuana varies; certain chemicals used to make it are illegal while others are legal. See (ECF No. 70 ¶ 9.) At all times relevant to this action, offsite laboratory testing was necessary to determine if synthetic marijuana contained illegal chemicals; field-test kits were unavailable, and illegal synthetic marijuana could not be visually distinguished from its legal variety. See (id. ¶¶ 13, 25, 38.)
Latour owned and operated My House Tobacco ("My House") in Ellwood City, Pennsylvania. (Id. ¶ 1.) My House sold tobacco, smoking products, and synthetic marijuana. (Id. ¶¶ 1-2.) The synthetic marijuana at issue in this case— which was recovered by law enforcement officials during a search of My House— was determined to be legal after offsite laboratory testing. See (id. ¶¶ 56, 58.)
On March 17, 2010, the Lawrence County Court of Common Pleas issued a standing order (the "Standing Order"), which provided:
(ECF No. 65-5 (capitalization omitted).)
A Lawrence County district attorney in office prior to Lamancusa filed the "Certification" referenced in the Standing Order. See (ECF No. 70 ¶ 32.) In other words, the Standing Order was "established by at least one" of Lamancusa's "predecessors," and it was "in existence before [Lamancusa] took office." (ECF No. 65-2 at 11.)
Lamancusa described the search warrant application process under the Standing Order as follows:
(Id. at 10-11.)
Concerning the input that prosecutors gave police officers in drafting narcotics-related warrant applications under the Standing Order, Lamancusa stated that
(Id. at 12-13.)
Concerning whether he "ever [told]" a police officer whether he "believe[d]" that an affidavit was "sufficient to support probable cause," Lamancusa stated:
(Id. at 13-14.)
On the morning of August 10, 2012, Officer McBride spoke with local resident McCullar on the telephone. (ECF No. 70 ¶ 21.) McCullar stated that his son was in the hospital because he ingested synthetic marijuana that McCullar believed his son purchased from My House. (Id.) Officer McBride responded that he would consult with the district attorney's office because he was not "familiar" with the "ever-changing law" of "synthetic products." (ECF No. 65-4 at 7 ("Some [synthetic marijuana is] legal, some of it is not. It depends on what's in it.").) After speaking with McCullar, Officer McBride called and left a message with the district attorney's office to discuss the legality of synthetic marijuana. (ECF No. 70 ¶¶ 26, 27.)
Later that day, Officer McBride met with McCullar in person. (Id. ¶ 27.) At the meeting, McCullar gave Officer McBride a clear plastic bag that, McCullar claimed, contained synthetic marijuana McCullar purchased from My House. (Id. ¶ 28.) Officer McBride described the contents of the bag as "ground-up . . . brownish-greenish" "vegetable matter" that resembled, but did not smell like, marijuana. (ECF No. 65-4 at 8.)
After meeting with McCullar, Officer McBride called the district attorney's office a second time and spoke with Diane Shaffer ("Shaffer"), an assistant district attorney. (ECF No. 70 ¶ 30.) Officer McBride told Shaffer about his interactions with McCullar. (Id.) In response, Shaffer faxed Officer McBride the "verbiage of the law" vis-à-vis synthetic marijuana. (ECF No. 65-4 at 8.) Shaffer advised Officer McBride to draft a search warrant application for My House based upon McCullar's alleged purchase of synthetic marijuana there. (ECF No. 70 ¶ 31.) She provided Officer McBride "some verbiage" to "use in the search warrant of what to be searched and seized." (Id.; ECF No. 65-4 at 8.) Officer McBride wrote an initial draft of the My House search warrant application and faxed it to Shaffer. (ECF No. 70 ¶ 33.)
Later in the day, Officer McBride again spoke with Shaffer on the telephone about the My House search warrant application. (Id. ¶ 35.) According to Officer McBride, he also spoke with Lamancusa, who instructed him to conduct a "controlled buy" of synthetic marijuana from My House. (Id.) Officer McBride described his discussion with Lamancusa during the call as follows:
(ECF No. 65-4 at 8-9.)
After speaking with Shaffer and Lamancusa, Officer McBride called several other Ellwood City police officers and McCullar to the police station to prepare for the controlled purchase at My House. (Id. at 9.) When the officers and McCullar arrived, Officer McBride met with them in the "operations room," where the officers briefed McCullar on "what [they] wanted him to do" and gave him "the money" to purchase synthetic marijuana from My House. (Id. at 10.) "At some point," Lamancusa arrived at the police station, "looked at" Officer McBride's "paperwork that [he] had at the computer," and confirmed with Officer McBride that they "were going to wait until after . . . the [controlled] buy to finish the search warrant" application. (Id.) Officer McBride spoke with Lamancusa "[b]riefly"; Lamancusa "[knew] that [the officers had] done this before . . . [and] basically just sat there and said, we're going to make a controlled buy." (Id.)
After the briefing, the officers drove to My House to conduct the controlled purchase of synthetic marijuana through McCullar. (Id.) According to Officer McBride, Lamancusa was present for the controlled buy in a police vehicle with officer John Disher ("Officer Disher").
As planned, McCullar purchased synthetic marijuana from Latour at My House and brought it to Officer Disher, who informed the other officers that "he had the product" in his possession. (Id.) After receiving notice from Officer Disher, Officer McBride and several other officers, including Officer Kingston, entered My House, while Officer Disher returned to the police station to "[take] a statement from [McCullar]." (Id. at 11.) After entering My House, Officer McBride spoke with Latour:
(Id.) Officer Kingston stated that Officer McBride once inside My House "was speaking to [Latour] mainly," but Officer Kingston recalled telling Latour that "[they] were going to secure a search warrant for the premises." (ECF No. 65-3 at 4.)
According to Latour, Lamancusa entered My House after the controlled purchase and spoke to him directly:
(ECF No. 65-1 at 7.)
After speaking with Latour in My House, Officer McBride returned to the police station to finish drafting the warrant application:
(ECF No. 65-4 at 11.)
The warrant application was signed by the affiant Officer McBride and described the basis for the requested search warrant in three paragraphs. In relevant part, the first paragraph stated:
(ECF No. 65-6.) The second paragraph stated:
(Id.) Finally, the third paragraph stated:
(Id.)
The warrant application listed the following items "to be searched and seized" from My House:
(Id.)
The warrant application listed the following "violations" of "Title 35, P.S. Section 780-113":
(Id.)
The fill-in box on the warrant application form specifying that it was "Approved by [the] District Attorney" was checked. (Id.)
Officer McBride discussed the process of drafting the warrant application as follows:
(ECF No. 65-4 at 12-14.)
Lamancusa described the role he played in approving the warrant application as follows:
(ECF No. 65-2 at 10.)
While Officer McBride was finalizing the search warrant application at the police station, several other officers, including Officer Kingston, remained at My House with Latour for one and a half to two hours. (ECF No. 67-1 at 99, 101, 105; ECF No. 70 ¶ 88.) Officer Kingston described his interactions with Latour during this time as follows:
(ECF No. 67-1 at 101-03.)
After the search warrant application was finalized, Officer McBride brought it to a magistrate, who approved it. (ECF Nos. 65-4 at 14, 65-6.) Officer McBride returned to My House with the search warrant and began to search the premises with the other officers. (ECF No. 65-4 at 14.) Lamancusa described his actions concerning the search as follows:
(ECF No. 65-2 at 9-10.)
During the search of My House, the police seized, inter alia, products labeled "MJ Burny," "Puffy," "Permagrin," "Primo," "Maeng Da Kratom," "VooDoo," and "Xtreme." (ECF No. 70 ¶ 54.)
Officer McBride submitted the products seized from My House to the Pennsylvania State Bureau of Forensic Services for laboratory analysis. (Id. ¶ 55.) The laboratory analysis concluded that all products seized from My House were legal. (Id. ¶ 56.) Latour's merchandise was returned, and he was not charged with a crime. See (id. ¶ 59.) This suit ensued.
In relevant part, Rule 56 provides that
FED. R. CIV. P. 56(a), (c). After discovery and upon a motion, Rule 56 requires 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. Marten v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
An issue of material fact is in genuine dispute if the evidence is such that a reasonable jury could decide it in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007) ("A genuine issue is present when a reasonable trier of fact, viewing all of the record evidence, could rationally find in favor of the [nonmoving] party in light of his burden of proof." (citing Anderson, 477 U.S. at 248; Celotex Corp., 477 U.S. at 322-23)).
Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
In deciding a Rule 56 summary judgment motion, the court must view the facts in the light most favorable to the nonmoving party and draw all reasonable inferences and resolve all doubts in its favor. Woodside v. Sch. Dist. of Phila. Bd. of Educ., 248 F.3d 129, 130 (3d Cir. 2001). The court must not engage in credibility determinations at the summary judgment stage. Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 643 n.3 (3d Cir. 1998).
Section 1983 provides a cause of action for the deprivation of constitutional rights by persons acting under color of state law. See 42 U.S.C. § 1983. Section 1983 is "not itself a source of substantive rights" but a "method for vindicating federal rights" conferred by the Constitution. Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). To succeed on a § 1983 claim, the plaintiff must prove that the defendant was a person acting under color of state law who caused a deprivation of his or her rights under the Constitution. See, e.g., Siceloff v. Twp. of W. Deer, No. 11-783, 2013 WL 3989427, at *7 (W.D. Pa. Aug. 2, 2013) (citing Anderson v. Davila, 125 F.3d 148, 159 (3d Cir. 1997)).
Latour's § 1983 claims against Lamancusa are based on the Fourth Amendment, which "applies to the States through the Fourteenth Amendment." New Jersey v. T.L.O., 469 U.S. 325, 334 (1985). The Fourth Amendment prohibits "unreasonable" government "searches and seizures" and generally requires a warrant supported by probable cause. U.S. CONST. amend. IV. Lamancusa seeks judgment as a matter of law on Latour's property- and person-based Fourth Amendment claims, i.e., the only claims remaining in this action. In opposing Lamancusa's motion, Latour argues that genuine disputes of material fact exist with respect to whether Lamancusa violated his Fourth Amendment rights by (1) recklessly omitting material facts from, and reviewing and approving, the My House search warrant application and (2) seizing his person without legal justification pending the application for the search warrant. The court addresses each of Latour's Fourth Amendment claims in turn below.
In support of his motion, Lamancusa argues that there is no genuine dispute of material fact about whether he violated Latour's Fourth Amendment rights by recklessly omitting facts necessary to a finding of probable cause from the My House warrant application. The court agrees. It is undisputed that Officer McBride drafted and swore to the warrant application's veracity as the affiant.
While Lamancusa did not draft or swear to the warrant application in this case, the record shows that he reviewed and approved it before Officer McBride submitted it to the magistrate, in accordance with the state court's Standing Order. Lamancusa argues—and the court agrees—that he is entitled to absolute quasi-judicial immunity for this conduct.
Absolute quasi-judicial immunity is a complete bar to a § 1983 damages claim. See Imbler v. Pachtman, 424 U.S. 409, 419 n.13 (1976). The doctrine evolved from the absolute immunity judges historically enjoyed for "`any judicial act done by them within their jurisdiction.'" Mink v. Suthers, 482 F.3d 1244, 1261 (10th Cir. 2007) (quoting Bradley v. Fisher, 80 U.S. 335, 351 (1871)); Imbler, 424 U.S. at 423 n.20 ("It is the functional comparability of their judgments to those of the judge that has resulted in . . . prosecutors being referred to as `quasi-judicial' officers, and their immunities being termed `quasi-judicial' as well."). A prosecutor is entitled to absolute immunity for "those actions that cast him [or her] in the role of an advocate initiating and presenting the government's case." Mink, 482 F.3d at 1262. A prosecutor is not, however, entitled to absolute immunity for "those actions that are investigative or administrative in nature, including the provision of legal advice outside the setting of a prosecution." Id. (citing Imbler, 424 U.S. at 430-31; Burns v. Reed, 500 U.S. 478, 486, 493-94 (1991)).
In this case, Lamancusa is entitled to absolute immunity for fulfilling his judicially delegated duty to review and approve the My House search warrant application, as required by the Standing Order. The court finds Coopshaw v. Figurski persuasive on this point. No. 06-13246, 2008 WL 324103 (E.D. Mich. Feb. 6, 2008).
In Coopshaw, police officers searched the plaintiffs' home with a search warrant unsupported by probable cause. Id. at *1. The plaintiffs alleged Fourth Amendment § 1983 claims against the prosecutor because he "reviewed and approved" the search warrant application before the police officers submitted it to a judge. Id. The prosecutor asserted absolute immunity on grounds that he reviewed and approved the warrant application "[p]ursuant to [a] local district court policy" requiring "law enforcement officers seeking a search warrant [to] first have the body of the warrant reviewed by the prosecuting attorney." Id. at *1, *7 (internal quotation marks omitted). The district court concluded that the prosecutor was entitled to absolute immunity "for fulfilling his judicially-delegated duty to review and to approve the search warrant." Id. at *7. In so holding, the court explained that
Id. at *10-11.
In this case, there is no genuine dispute that the Standing Order issued by the Lawrence County Court of Common Pleas required Lamancusa to review and approve the My House search warrant application. The Standing Order provided that search warrants involving suspected drug-law violations "shall not hereafter be issued by any officer unless the search warrant application had the approval of an attorney for the Commonwealth." (ECF No. 65-5 (capitalization omitted).) The record establishes that Lamancusa adhered to the Standing Order in reviewing and approving the My House search warrant application. See, e.g., (ECF No. 65-2 at 10.) In effect, therefore, the Standing Order "commandeer[ed]" Lamancusa "to assist" the local magistrate "to perform a judicial function," i.e., "determining whether a warrant should issue" for Latour's business property. Coopshaw, 2008 WL 324103, at *11. Because the state court "drafted" Lamancusa "to aid in its probable cause determination pursuant to a standing . . . court policy," Lamancusa "is shielded by quasi-judicial immunity for that act." Id.; cf. Mikhail v. Kahn, 572 F. App'x 68, 71 (3d Cir. 2014) ("Individuals charged with the duty of carrying out facially valid court orders enjoy quasi-judicial absolute immunity from liability for damages in a suit challenging conduct prescribed by that order." (citing Gallas v. Supreme Court of Pa., 211 F.3d 760, 772-73 (3d Cir. 2000))).
Latour argues that the state court did not commandeer Lamancusa to review and approve the warrant application because Lamancusa's predecessor "elected" to file the certification leading to the Standing Order's issuance under Pennsylvania Rule of Criminal Procedure 202. (ECF No. 66 at 4-5 (emphasis in original).) Latour argues that Rule 202 "provides an option for district attorneys—not [Pennsylvania] courts—to require" prosecutorial approval of warrant applications. (ECF No. 70 ¶ 32.) In response, Lamancusa argues that "there is no genuine dispute that there was a state court order in place," i.e., the Standing Order, "requiring [prosecutorial] review" of warrant applications in cases involving drug-law violations. (ECF No. 69 at 2.) For the reasons that follow, the court agrees with Lamancusa.
The Pennsylvania Supreme Court promulgates the Pennsylvania Rules of Criminal Procedure. Commonwealth v. Lockridge, 810 A.2d 1191, 1194 & n.5 (Pa. 2002) (citing PA. CONST. art. V, § 10(c)); id. at 1195 ("[T]he [Pennsylvania constitution's] grant to [the Pennsylvania Supreme] Court of rule-making authority is exclusive." (citing In re 42 Pa. C.S. § 1703, 394 A.2d 444, 449 (Pa. 1978))). Through Rule 202, the Pennsylvania Supreme Court requires Pennsylvania common pleas courts to provide district attorneys the option to elect to approve search warrant applications before they are submitted by law enforcement to a neutral magistrate. That rule provides that
PA. R. CRIM. P. 202(a). To exercise the option Rule 202 provides, district attorneys
PA. R. CRIM. P. 202(b). Once a certification is filed with the common pleas court, Rule 202 requires the state court to "thereupon promulgate a local rule . . . setting forth the circumstances specified in the certification." Id.
In this case, the Lawrence County Court of Common Pleas issued the Standing Order "upon review of the . . . Certification" filed by one of Lamancusa's predecessors "pursuant to [Rule] 202." (ECF No. 65-5.) Contrary to Latour's assertions, therefore, the state court—not the district attorney's office— "promulgate[d] [the] local rule" (i.e., the Standing Order) requiring district-attorney approval of drug-related warrant applications before their submission by law enforcement, in accordance with Rule 202. See PA. R. CRIM. P. 202(b); (ECF No. 65-5.) "A court order is a court order," United States v. Albrecht, No. 80-1590, 1985 WL 2400, at *6 (N.D. Ill. Aug. 23, 1985), and there is no genuine dispute that the Standing Order required Lamancusa to review and approve the My House warrant application before its submission to a neutral magistrate. Nothing in the records shows that Lamancusa had "discretion to refuse to follow" the Standing Order in this case, as Latour submits.
Finally, Latour argues that Lamancusa's approval of the My House warrant application was discretionary because he had the power to withdraw the Standing Order at any time under Rule 202. (ECF No. 66 at 4-5.) The court disagrees. First, Latour mischaracterizes Rule 202. That rule reposes in the state courts alone the power to withdraw their own local rules, including the Standing Order. In relevant part, a comment to a related Pennsylvania Rule of Criminal Procedure cited in Rule 202 states that
PA. R. CRIM. P. 507 cmt.
In support of his motion, Lamancusa argues that there is no genuine dispute of material fact that he did not detain Latour without lawful justification in My House pending the approval of the search warrant application. The court disagrees. First, if Latour's testimony is found credible, a reasonable jury could find that Lamancusa ordered Latour "seized" under the Fourth Amendment. Second, accepting Latour's account that Lamancusa ordered him seized, a reasonable jury could find that Lamancusa did not have probable cause to do so. Summary judgment cannot be granted on this claim because there are credibility issues a jury must resolve. These conclusions are explained in detail below.
To bring a successful Fourth Amendment false-arrest claim under § 1983, the plaintiff must prove by a preponderance of the evidence that (1) a seizure occurred, (2) without probable cause. See Brown v. Makofka, ___ F. App'x ___, No. 15-1537, 2016 WL 1056064, at *3 (3d Cir. Mar. 17, 2016) (citing Groman v. Twp. of Manalapan, 47 F.3d 628, 634 (3d Cir. 1995)); Brockington v. City of Phila., 354 F.Supp.2d 563, 568 (E.D. Pa. 2005) ("An `arrest without probable cause is a constitutional violation actionable under [§] 1983.'" (quoting Patzig v. O'Neil, 577 F.2d 841, 848 (3d Cir. 1978))).
Under the Fourth Amendment, "[a] seizure of the person . . . occurs when, `taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he [or she] was not at liberty to ignore the police presence and go about his [or her] business.'" Kaupp v. Texas, 538 U.S. 626, 629-30 (2003) (quoting Florida v. Bostick, 501 U.S. 429, 437 (1991)); see Brendlin v. California, 551 U.S. 249, 255 (2007) (same). "`[E]xamples of circumstances that might indicate a seizure, even where the person did not attempt to leave,' includ[e] `the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.'" Kaupp, 538 U.S. at 629-30 (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980) (plurality opinion)); see California v. Hodari D., 499 U.S. 621, 626 (1991) ("[A seizure] requires either physical force. . . or, where that is absent, submission to the assertion of authority." (emphasis in original)).
In this case, the record reflects a genuine dispute of material fact about whether Lamancusa ordered Latour "seized"—a point Lamancusa appears to concede in his motion. See (ECF No. 63 at 1 ("[T]here is a dispute [about] whether [Latour] was detained . . . at [Lamancusa's] direction. . . .").)
According to Latour, Lamancusa entered My House with several other officers directly after the controlled purchase and ordered that Latour be detained pending the application for the search warrant. (ECF No. 65-1 at 7 ("[Lamancusa said,] this is a head shop, everything in here is illegal. He said, pack it up, and, basically speaking, Mr. Latour is to be retained [sic] until we get a search warrant, and if he gives you a hard time, put him in cuffs. . . ."
In contrast, Lamancusa, Officer McBride, and Officer Kingston denied Latour's allegation that "Lamancusa instructed the . . . officers to detain Latour inside My House until he returned with a search warrant." (ECF Nos. 50 ¶ 101, 51 ¶ 101 (denying Latour's allegation at ECF No. 38 ¶ 101).) Lamancusa stated it would have been "extraordinary" for him to be present for the controlled purchase. (ECF No. 65-2 at 6-7.) Officer McBride "believed" Lamancusa returned to the police station directly after the controlled purchase and did not recall Lamancusa speaking to Latour. (ECF No. 65-4 at 11.)
Viewing the record in Latour's favor, the court concludes that a reasonable jury could find that Lamancusa's alleged conduct "`would have communicated to a reasonable person'" in Latour's position "`that he was not at liberty to ignore the police presence and go about his business.'" Kaupp, 538 U.S. at 629-30 (quoting Bostick, 501 U.S. at 437). Several officers entered My House after the controlled purchase. (ECF No. 67-1 at 101-03); Kaupp, 538 U.S. at 629-30 (observing that "`the threatening presence of several officers'" may indicate a seizure (quoting Mendenhall, 446 U.S. at 554)). After entering My House, Lamancusa allegedly stated: "everything in here is illegal"; Latour "[is] to be retained [sic] until we get a search warrant"; and "if [Latour] gives you [i.e., the police officers] a hard time, put him in cuffs." (ECF No. 65-1 at 7); Kaupp, 538 U.S. at 629-30 (observing that "`the use of language . . . indicating that compliance with the . . . request might be compelled'" is evidence of a seizure (quoting Mendenhall, 446 U.S. at 554)). After hearing these statements, Latour did not move from the behind the counter or attempt to leave My House for one and a half to two hours. (ECF No. 67-1 at 101-03; ECF No. 70 ¶ 88); cf. Hodari D., 499 U.S. at 626 (observing that where physical force is absent, the "submission to the assertion of [police] authority" is evidence of a seizure (emphasis in original)). If Latour's testimony is found credible, a reasonable jury could find that Lamancusa ordered Latour's "seizure" under the Fourth Amendment, creating a genuine dispute of material fact for trial.
A seizure "`without probable cause
Accepting Latour's account that Lamancusa ordered him "seized," the record in this case reflects a genuine dispute of material fact about whether Lamancusa had probable cause to do so. Latour adduced evidence from which a reasonable jury could conclude that Lamancusa ordered Latour's seizure notwithstanding that he knew (1) offsite laboratory testing was required to determine if Latour's synthetic marijuana was illegal and (2) the two samples of Latour's synthetic marijuana in the officers' possession had not yet been tested.
(ECF No. 65-4 at 12-14 (emphasis added)); see (ECF No. 65-2 at 13 (Lamancusa stating, "[U]nfortunately at the time, synthetic marijuana, there were no test kits available. . . .").) While Lamancusa did not require evidence sufficient to prove "beyond a reasonable doubt" that Latour possessed and sold illegal synthetic marijuana to order his seizure, he required "more than [a] mere suspicion" of illegal activity to do so. Orsatti, 71 F.3d at 482-83. Under the unique circumstances of this case, it is undisputed that only offsite laboratory testing could confirm or dispel the "mere suspicion" that Latour's synthetic marijuana was illegal.
For the reasons explained in this opinion, the court will grant in part and deny in part Lamancusa's Rule 56 motion for summary judgment. (ECF No. 62.) Lamancusa's motion will be granted with respect to Latour's property-based Fourth Amendment claim. Genuine disputes of material fact, however, preclude the entry of summary judgment for Lamancusa on Latour's person-based Fourth Amendment claim. His motion will be denied with respect to that claim.
An appropriate order follows.
(ECF No. 65-2 at 5-6.)
(ECF No. 65-2 at 6-7.)
In this case, Latour points to parts of the record suggesting that the affiant—i.e., Officer McBride, not Lamancusa—recklessly omitted material facts from the My House warrant application. See (ECF No. 66 at 10-12.) Problematically for Latour, however, it is undisputed that Officer McBride—not Lamancusa—drafted the affidavit of probable cause and swore to its veracity as the affiant. Because Lamancusa was not the affiant in this case, it is unclear whether Latour's "reckless omission"-based Fourth Amendment claim against Lamancusa is viable under Franks and the decisions following it. Because the parties did not brief this issue, the court declines to rule on it at this stage. In any event, Lamancusa's motion for summary judgment with respect to Latour's property-based Fourth Amendment claim will be granted because Lamancusa is entitled to quasi-judicial immunity, as explained in § V.A.1 of this opinion.
In Burns, the United States Supreme Court held that "advising the police in the investigative phase of a criminal case is [not] so `intimately associated with the judicial phase of the criminal process,' . . . that it qualifies for absolute immunity." 500 U.S. at 493 (quoting Imbler, 424 U.S. at 430); Buckley v. Fitzsimmons, 509 U.S. 259, 274 (1993) ("A prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested."). Unlike this case, however, Reed and Buckley did not involve a state-court order requiring a prosecutor to review and approve an affidavit of probable cause.
Applying Burns and Buckley, the United States Courts of Appeals for the Tenth and Ninth Circuits held that qualified—not absolute—immunity extends to a prosecutor's provision of legal advice to law enforcement officers before the establishment of probable cause. Mink, 482 F.3d at 1262 ("Absolute immunity . . . does not extend to those actions that are investigative or administrative in nature, including the provision of legal advice outside the setting of a prosecution."); KRL v. Moore, 384 F.3d 1105, 1114 (9th Cir. 2004) ("[B]ecause probable cause had not been established, . . . the prosecutors did not serve as advocates in reviewing and approving the investigatory search warrant."). Like Reed and Buckley, however, Mink and KRL did not involve a state-court order requiring a prosecutor to review and approve an affidavit of probable cause, like this case does.
KRL is distinguishable from this case without difficulty. There, prosecutors reviewed and approved a search warrant on their own without a court order or government directive of any kind. 384 F.3d at 1108-10.
Mink merits further discussion. There, a Colorado statute "allowed" law enforcement officers to "submit [a warrant] affidavit to the office of the district attorney for legal review." 482 F.3d at 1249 (citing COLO. REV. STAT. § 20-1-106.1)) (emphasis added). That statute required district attorneys to "`render . . . legal advice to peace officers, upon the request of such officers or of the court, pertaining to the preparation and review of [warrant] affidavits. . . .'" Id. at 1263 (quoting § 20-1-106.1)) (emphasis added). At the request of the detective — not of the state court—the prosecutor in Mink reviewed and approved the warrant affidavit in issue. Id. at 1249. The court of appeals rejected the prosecutor's argument that the statute entitled her to absolute immunity. Id. at 1263 ("[A] state statute . . . cannot create [absolute] immunity from a federal civil rights claim where the functional analysis suggests otherwise. . . . [W]e look to what the attorney did—she provided legal advice—and not to what state law requires." (emphasis added)).
Mink's analysis does not apply to this case. The state statute in Mink enacted by the legislature requiring district attorneys to review and approve warrant affidavits at the request of law enforcement officers is different from the Standing Order in this case issued by the state trial court (under a procedural rule promulgated by the state high court) requiring district attorneys to review and approve all drug-related warrant affidavits. Unlike an official act in accordance with a state statute, an official act "`pursuant to a valid state court order'" is entitled to quasi-judicial immunity "`because the act of enforcing or executing a court order is intrinsically associated with a judicial proceeding.'" Coopshaw, 2008 WL 324103, at *10-11 (quoting Cooper, 203 F.3d at 948); cf. Mikhail, 572 F. App'x at 71; McArdle v. Tronetti, 961 F.2d 1083, 1085 (3d Cir. 1992) (absolute immunity applied to a prison physician who prepared an inmate evaluation at a judge's request because he was "functioning as an arm of the court" and "[a]s such, he was an integral part of the judicial process"). For these reasons, Mink is distinguishable from this case, and Lamancusa is entitled to absolute immunity for reviewing and approving the My House warrant application, in accordance with the Standing Order.
Lamancusa argues that Latour's account of his interaction with Lamancusa in My House is "not corroborated by any other witness or evidence of record." (ECF No. 63 at 11-12.) This is irrelevant: The court "do[es] not engage in credibility determinations at the summary judgment stage." Dow Chem. Canada, Inc. v. HRD Corp., 587 F. App'x 741, 746 (3d Cir. 2014) (quoting Simpson, 142 F.3d at 643 n.3).
Under Terry, law enforcement officials can "stop and briefly detain a person for investigative purposes if the [official] has a reasonable suspicion supported by articulable facts that criminal activity `may be afoot,' even if the officer lacks probable cause." United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry, 392 U.S. at 30). "The Terry stop is a . . . minimal intrusion, simply allowing the officer to briefly investigate further." Illinois v. Wardlow, 528 U.S. 119, 126 (2000). Terry does not apply to this case for two reasons.
First, there was no "stop" to which Terry might apply in this case. The court is unaware of, and Lamancusa fails to point to, any decision in which Terry applied outside the context of law enforcement officials stopping a person (1) on foot or (2) in that person's vehicle, on the basis of reasonable suspicion of criminal activity. Terry itself involved a police officer stopping and frisking individuals on the street after observing them engage in suspicious activity. Terry, 392 U.S. at 4-8; see Rodriguez v. United States, 135 S.Ct. 1609 (2015) (applying Terry to a traffic encounter). It is, therefore, doubtful that Terry applies to the circumstances of this case, in which a prosecutor allegedly entered a person's business uninvited and ordered him detained by police officers pending the approval (or, possibly, the disapproval) of a search warrant application. Extending Terry to these circumstances, where no investigative "stop" occurred, would eviscerate Terry's purpose as a narrow exception to the Fourth Amendment's general requirement of probable cause for a government seizure.
Second, even if a "stop" occurred in this case under Terry, it was not "brief." Wardlow, 528 U.S. at 126. Latour was detained in My House while McBride pursued a search warrant for one and a half to two hours. (ECF No. 70 ¶ 88). A one-and-a-half to two-hour encounter with law enforcement officials is not "brief" under Terry. See United States v. Place, 462 U.S. 696, 709 (1983) (holding luggage over ninety minutes was a prolonged seizure that exceeded the limits of an investigative stop under Terry); Mawson v. Pittston Police Dep't, 145 F.Supp.3d 363, 378 (M.D. Pa. 2015) ("[A]n hour long detention . . . is not a brief, momentary seizure." (emphasis in original)). For these reasons, this case does not fall within the Terry-stop framework. Probable cause is the appropriate standard, not reasonable suspicion.
The court need not—and therefore declines to—address whether Lamancusa is entitled to qualified immunity from Latour's property-based Fourth Amendment claim, for which Lamancusa is entitled to summary judgment on other grounds. See supra, § V.A.
It is unclear whether Lamancusa seeks qualified immunity with respect to Latour's person-based Fourth Amendment claim and, if so, on what grounds. In his motion, he does not distinguish the claims for which he seeks qualified immunity, asserting broadly and without citation that "[t]he precedent at the time did not require that laboratory analysis occur pre-seizure." (ECF No. 62 ¶¶ 10-11.) Qualified immunity from Latour's person-based (or property-based) claim is not requested in Lamancusa's proposed order. See (ECF No. 62-1.) Similarly, in his supporting brief, Lamancusa discusses qualified immunity from Latour's property-based claim in detail but devotes only one conclusory sentence to qualified immunity from Latour's person-based claim. (ECF No. 63 at 17 ("By the same token, even if reasonable minds could differ as to [Latour's] . . . allegation that he was detained, detaining him under the circumstances would not be so unreasonable as to fall outside of the protections of qualified immunity." (emphasis added)).) In his brief, Lamancusa cites only to authorities addressing qualified immunity for officials submitting search warrant applications to seize property. (ECF No. 63 at 14-17 (citing, for example, United States v. Riley, No. 12-478, 2014 WL 537013 (D. Nev. Feb. 7, 2014) (denying a motion in a criminal action for a Franks hearing to challenge the affiants' statements and omissions in a search warrant affidavit for "`fake pot'"), and United States v. Stephens, No. 14-1, 2014 WL 4955713 (W.D. Va. Oct. 1, 2014) (denying a motion to suppress evidence in a criminal action in which the defendants were charged with "trafficking in controlled substance analogues" and argued that the search warrant affidavits were not supported by probable cause)).)
Lamancusa does not explain, and the court cannot discern from his filings, why and in what manner, if any, authorities dealing with police officers seeking search warrants for property apply "[b]y the same token" to this case, which involves a prosecutor allegedly ordering the warrantless seizure of an individual while police officers pursue a search warrant. In the absence of an explicit request for qualified immunity with respect to this claim and sufficient briefing on the issue, the court declines to rule at this time on whether Lamancusa is entitled to qualified immunity from Latour's person-based Fourth Amendment claim under § 1983.