United States District Court, W.D. North Carolina, Charlotte Division
C. MULLEN UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Defendant John
Gorrod's Motion for Summary Judgment (Doc. No. 26),
Defendant Michael Wallin's Motion for Summary Judgment
(Doc. No. 27), Defendant Michael Bodenstein's Motion for
Summary Judgment (Doc. No. 30), Plaintiffs' Memorandum of
Law in Opposition (Doc. No. 40), and Defendants filed a joint
Reply brief (Doc. No. 42).
case arises from an encounter between Charlotte Mecklenburg
Police officers (“CMPD”) and the Plaintiffs in
the parking lot of the Rodeway Inn motel located at 3601
Brookshire Blvd in Charlotte. On April 14, 2015, at roughly
10:30 p.m., Mr. Barideaux and Mr. Harris arrived at the
Rodeway Inn located on Brookshire Boulevard. Once parked, Mr.
Darryl Moffett entered the vehicle to let Mr. Barideaux and
Mr. Harris listen and talk about music tracks.
location was previously operated as the Brookshire Inn and
was the subject of a Consent Judgment and Permanent
Injunction entered on February 28, 2011 by the Superior Court
of Mecklenburg County, which found that the property at 3601
Brookshire Boulevard had been maintained and used for the
purpose of nuisance activities, including repeated acts of
violence, prostitution, and acts of illegal possession and
sale of controlled substances by its customers. The effect of
the Consent Judgment was to perpetually enjoin the then-owner
of the property “and all other persons” from
maintaining a public nuisance on the property.
injunction included the implementation of a plan of nuisance
abatement which included, among other things employing an
armed security officer. But, at the time of this incident,
the owner of the Rodeway Inn did not employ an armed security
guard and allowed CMPD officers regular access to the
property and officers patrolled the property at least three
times each day. The Rodeway Inn also maintained conspicuous
signage stating that individuals not registered with the
motel were not allowed on the property.
performed his zone check at the Rodeway Inn, Officer Wallin
observed a dark colored Toyota Camry in the rear parking lot
that was backed into a parking space with the lights on and
the engine running. He drove past the vehicle and observed
three occupants. Officer Wallin parked next to the Camry on
the vehicle's passenger side and got out of his marked
to and as he was approaching the driver's side of the
car, he testified that he noticed the three occupants making
movements in the car and their hands going towards the
floorboards and sides. Officer Wallin testified that he
smelled the odor of marijuana as he approached the vehicle.
He walked around the vehicle and approached the driver's
side front window to talk with the occupants. With the window
down, Officer Wallin testified that he could tell that the
odor of marijuana was coming from inside the car. Plaintiff
Jeramie Barideaux was the driver of the Camry, Plaintiff
Jonathan Harris was the front seat passenger and Darryl
Moffett was in the rear driver's side passenger seat.
Wallin asked the driver for his license and registration and
asked the occupants for their licenses. While at the
driver's window, Officer Wallin requested backup at the
scene because of the odor of marijuana and because he was a
single officer with three vehicle occupants.
Bodenstein heard the radio transmission from Officer Wallin
requesting that another unit assist him at the Rodeway Inn
with an “occupied suspicious vehicle” and
responded to the request for assistance. As Officer
Bodenstein arrived, Officer Wallin walked back to his car to
run the licenses and check for outstanding warrants. He found
that Mr. Moffett has several warrants for his arrest.
Sergeant Gorrod arrived at the scene soon after Officer
Bodenstein. Sergeant Gorrod and Officer Bodenstein both
testified that they smelled marijuana when they approached
Wallin approached Mr. Barideaux and asked him to step out of
the vehicle so he could speak with him. Once he stepped out
of the vehicle, Officer Wallin asked Mr. Barideaux if he had
anything in the car such as drugs, knives, or guns. Mr.
Barideaux said he did not. Officer Wallin asked Mr. Barideaux
for his consent to the search his vehicle. Mr. Barideaux said
there was nothing in the car and did not consent to the
search. Officer Wallin then told Mr. Barideaux that because
he smelled the odor of marijuana, he had probable cause to
search the vehicle. Mr. Barideaux then put his hands up and
allowed Officer Wallin to search his person. Officer Wallin
did not find anything in the search of Mr. Barideaux.
Officer Wallin walked to the front passenger side where Mr.
Harris was seated in the vehicle and where Officer Bodenstein
was standing. He asked Officer Bodenstein whether he smelled
anything and Officer Bodenstein responded in the affirmative.
Officer Wallin asked Mr. Harris to step out of the vehicle
and asked Mr. Harris if he had anything on him. Mr. Harris
said that he had a knife and raised his hands. Officer Wallin
removed the knife and placed it on the hood of the vehicle
and then he conducted a person search of Mr. Harris just like
he conducted on Mr. Barideaux. Officer Wallin did not find
anything else on Mr. Harris.
his search of Mr. Harris, Officer Wallin saw that Sergeant
Gorrod had placed marijuana on the roof the car. Officer
Wallin learned that Mr. Moffett gave a baggie containing
approximately seven (7) grams of marijuana to Sergeant
Gorrod. Officer Wallin got Mr. Moffett out of the vehicle and
searched him, finding a small baggie with a white powdered
substance. Mr. Moffett told the officers that the bag's
content was Molly (i.e. methylenedioxymethamphetamine).
Officer Wallin placed Mr. Moffett in handcuffs while he
completed the search. Officer Wallin then placed Mr. Moffett
in the back seat of his patrol vehicle and activated his
digital mobile video recording (“DMVR”).
Wallin returned to the Plaintiffs' vehicle and started
searching it, starting in the back seat where Mr. Moffett was
sitting. Officer Wallin found a small digital scale in
between the seats on a little hump between the floor boards
and found marijuana that had been broken up all over the
floorboard. After searching the vehicle, Officer Wallin
talked to Mr. Moffett. The DMVR audio from Officer
Wallin's vehicle shows that after Mr. Moffett was advised
of his rights, he acknowledged that he had the marijuana in a
ball; that he began breaking it up when Officer Wallin
arrived; and that's why there was marijuana on the floor
of the car. (Wallin DMVR, 23:27:04-23:27:19, 23:36:20). Mr.
Moffett also acknowledged that the scale and Molly were his,
and that he had given Officer Wallin the wrong name when he
was asked for his identification. Id.
point, after the drugs and scale were discovered, Mr.
Barideaux and Mr. Harris were standing in front of Officer
Bodenstein's vehicle. Officer Wallin asked Officer
Bodenstein and Sergeant Gorrod to conduct secondary searches
of Mr. Barideaux and Mr. Harris.
Bodenstein searched Mr. Harris and Sergeant Gorrod searched
Mr. Barideaux. This search included a search of Mr.
Harris' groin area. Officer Bodenstein noticed during his
search that Harris was clenching his buttocks. He reported to
Officer Wallin that Mr. Harris appeared to be clenching his
buttocks as if trying to conceal something. Mr. Harris stated
that he does not do drugs and wouldn't hide anything in
his buttocks. No illegal items were found during this search.
Officers Bodenstein and Wallin discussed doing a visual body
cavity search of Mr. Harris to determine if he was hiding
narcotics in his buttocks. Sergeant Gorrod, acting as the
supervisor, approved the decision to conduct the visual body
cavity search of Mr. Harris. Officer Wallin told Mr. Harris
that the officers wanted to conduct a visual body cavity
search of him in the privacy of one of the motel rooms. He
told Mr. Harris that the cavity search would be conducted
either in the motel room or downtown. Mr. Harris in response
stated “you're not going to find nothing. Okay,
let's go.” Officer Wallin asked Britney Gibert, who
had been staying at the Rodeway Inn with Mr. Moffett, whether
she would allow them to use room 119 for the further search
of Mr. Harris. Ms. Gibert handed the key to Officer Wallin,
who used the key to access her hotel room to conduct the
visual body cavity search of Mr. Harris.
in the bathroom, Harris lowered his pants and underpants,
bent over at the waist and spread his buttocks apart. Neither
Officer Wallin nor Officer Bodenstein touched Mr. Harris and
no contraband was found. The search lasted two minutes or
less. They walked back outside and Officer Wallin asked Mr.
Harris and Mr. Barideaux for their drivers licenses again so
he could write down their information. Officer Wallin
returned their licenses and told them they could leave.
have filed fourteen claims in connection to the searches of
their person by Officer Wallin, Officer Bodenstein, and
Sergeant Gorrod (hereinafter collectively referred to as
“the defendant officers”) on the evening of April
14, 2015. Plaintiffs have put forth five claims under 42
U.S.C. § 1983 and seven tort claims under North Carolina
law against the defendant officers, including intentional
infliction of emotional distress, ...