United States District Court, E.D. North Carolina, Northern Division
C. DEVER III Chief United States District Judge.
1, 2015, Line Oshea Brooks ("Line") and April
Gladney Brooks ("April") filed a complaint against
Dare County Sheriff J.D. Doughtie and Dare County Deputy
Sheriff Kevin Duprey in their individual and official
capacities, the Ohio Casualty Insurance Company
("OCIC") and Liberty Mutual Group, Inc., as
sureties, and John Doe 1 Surety Company and John Doe 2 Surety
Company [D.E. 1]. The complaint alleged a state-law claim for
intentional infliction of emotional distress, a
statutory-bond claim, and federal claims under 42 U.S.C.
§ 1983. See id ¶¶ 102-176. On September 14,
2015, the parties filed a joint stipulation of dismissal of
all sureties other than OCIC [D.E. 26]. On October 31, 2016,
defendants moved for summary judgment [D.E. 36]. Plaintiffs
responded in opposition [D.E. 47-49], and defendants replied
[D.E. 50]. As explained below, the court grants
defendants' motion for summary judgment.
complaint arises out of a traffic stop and detention that
occurred in February 2014. On February 13, 2014,
"[p]laintiffs were traveling eastbound on Virginia Dare
Hwy, driving a silver 2008 Mercedes Benz CLS 550, when the[y]
experienced a tire malfunction on the rear driver side."
Compl. [D.E. 1] ¶ 13; see L. Brooks Dep. 25-26 [D.E.
39-8] 9-10. Line was driving, and slowed down to 25 miles per
hour and activated the flashers. See Compl. ¶¶
13-14. SBI Special Agent R. Jason Godfrey passed
plaintiffs' car while driving on the same road, "and
because traffic usually runs at about 70 mph or more, ... was
concerned about the safety of this situation." Godfrey
Aff. [D.E. 39-5] ¶ 4. Godfrey "slowed down to allow
the vehicle to pass... so that [he] could read the license
plate, " and "checked the license plate number in
an official law enforcement database." Id.; cf,
L. Brooks Dep. 34-37 [D.E. 39-8] 12. Godfrey learned that the
car was registered to a man much younger than Line (and later
learned that the car's registered owner was Line's
son). Godfrey Aff. ¶ 4. Godfrey then "traveled past
the vehicle and turned into a rest stop at the end of the
bridge near Manteo to further observe the vehicle and the
occupants once the vehicle was off the bridge."
Id.; cf. Compl. ¶¶ 16-17
(alleging that Godfrey pulled ahead of plaintiffs' car
and "veered off the road onto what appeared to be a
wooded area, " only to again pull up to and around
plaintiffs' car and turn left at an intersection).
Although plaintiffs' car had a flat tire, plaintiffs
drove past a rest stop and a gas station. Godfrey Aff.
"then called Deputy Shaun Barrera, who [Godfrey] knew
was on duty as a patrol officer for the Dare County Sheriffs
Office, and informed him that a motorist with a flat tire in
a silver Mercedes might need help between the bridge and Nags
Head." Godfrey Aff. ¶ 4; see Barrera Aff. [D.E.
39-4] ¶ 4. Barrera "pulled up behind Plaintiff and
initiated a traffic stop on Plaintiff, illuminating blue
lights. Plaintiff responded to the lights by pulling into a
parking lot and stopping his car." Compl. ¶¶
18-19; see Barrera Aff. ¶ 4; L. Brooks Dep. 41 [D.E.
39-8] 13; A. Brooks Dep. 25-26 [D.E. 39-9] 8-9. Barrera
identified himself to Line. Line responded that he was
"a retired Rocky Mount Police Officer trying to make it
to a store where his wife could use a restroom, and informed
Barrera that he had a firearm in his vehicle." Compl.
¶¶ 20-21; see Barrera Aff. ¶ 4; L. Brooks Dep.
42 [D.E. 39-8] 14. Barrera quickly ended the traffic stop,
but when Line got back on the road, "his tire collapsed,
forcing him to pull into the parking lot of [a restaurant],
just down the street from a store." Compl. ¶ 24;
see Barrera Aff. ¶ 4 ("The entire stop lasted less
than three minutes."); A. Brooks Dep. 28 [D.E. 39-9]
called Godfrey back "and let him know that everything
was fine and that the man was a retired police officer and
did not need help." Barrera Aff. ¶ 4; see Godfrey
Aff. ¶ 6. Godfrey, however, "became more
curious" and called another SBI agent, Albert Ray
Summerlin to "ask Agent Summerlin if he knew of
someone who was a retired Rocky Mount Police officer and
matched the physical description of the driver." Godfrey
Aff. ¶ 6; see Summerlin Aff. [D.E. 39-6] ¶ 6. In
2013, Summerlin had interviewed a prisoner who
"positively identified Mr. Brooks by photograph"
and "said that Mr. Brooks was a former police officer in
Rocky Mount, drove a silver Mercedes, and was involved in the
drug trade and the racing business." Summerlin Aff.
¶ 5 & Ex. A [D.E. 39-6] 11-12 (DEA interview
report). Summerlin also was aware of another 2013 interview
with a federal prisoner in which "the prisoner said that
Line Books [sic] had sold him 16 to 18 kilos of cocaine since
2006." Summerlin Aff. ¶ 7. Summerlin called the
Rocky Mount Police Department and spoke with a captain
"who told [Summerlin] that Brooks had retired from the
department on medical disability and that police there
believed he was involved in drug trafficking."
Id. ¶ 6. Summerlin "reported this
information immediately to Special Agent Godfrey." Id;
see Godfrey Aff. ¶ 6; cf. Duprey Aff., Ex. A
[D.E. 39-1] 7 (incident report indicating that Duprey spoke
to Summerlin, who "advised [Duprey] that there were
debriefs on Line Brooks that tied him into dealing large
amounts of cocaine"); Pis.' Ex. 1 [D.E.49-1] 3
(same). Godfrey "immediately called Captain Kevin
Duprey, the chief narcotics investigator for the Dare County
Sheriffs Office, and told him all this information."
Godfrey Aff. ¶ 6; see Duprey Aff. [D.E. 39-1] ¶ 4
& Ex. A [D.E. 39-1] 7; Pis.' Ex. 1 [D.E. 49-1] 3.
Line walked with April to the nearby store and then returned
to their car. Compl. ¶ 25; see A. Brooks Dep. 38 [D.E.
39-9] 12. While sitting in their car with the engine running,
a Nags Head police officer pulled into the parking lot behind
them, activated his blue lights, demanded to see Line's
license and registration, placed a phone call, then returned
Line's license and registration to him and left. See
Compl. ¶¶ 27-33; L. Brooks Dep. 47-49 [D.E. 39-8]
15; A. Brooks Dep. 38-40 [D.E. 39-9] 12; Pls.' Ex. 6
[D.E. 49-6] (event report).
Duprey was on patrol searching for plaintiffs, located them
in the restaurant parking lot, and began to observe them.
Compare Compl. ¶ 26; L. Brooks Dep. 50 [D.E.
39-8] 16 with Henderson Aff. ¶ 5 ("Duprey
had been observing Mr. and Mrs. Brooks in the parking lot for
several minutes when we pulled up."); Duprey Aff., Ex. A
[D.E. 39-1] 7; Pis.' Ex. 1 [D.E. 49-1] 3. At some point,
an individual named Marshall Gallop arrived to assist
plaintiffs with their flat tire in response to a phone call
Line had placed to Gallop's brother Mike.
Compare Compl. ¶ 36; L. Brooks Dep. 26-29,
52-55 [D.E. 39-8] 10, 16-17; A. Brooks Dep. 40-41 [D.E. 39-9]
12; Gallop Aff. [D.E. 49-10] 2, wito Duprey Aff., Ex. A [D.E.
39-1] 7; Pis.' Ex. 1 [D.E. 49-1] 3; Henderson Aff. ¶
5.. Marshall Gallop was familiar to several officers on the
scene, including Captain Duprey, based on his criminal record
for drug trafficking, and Mike Gallop "was fired from a
law enforcement agency amid rumors that he too was involved
in the illegal drug trade." Duprey Aff. ¶ 4 &
Ex. A [D.E. 39-1] 7; Pis.' Ex. 1 [D.E. 49-1] 3; see
Henderson Aff. ¶ 7.
Duprey contacted Barrera and asked him to come to the
restaurant parking lot with Barrera's K9 police dog.
Barrera Aff. ¶ 5; see Duprey Aff., Ex. A [D.E. 39-1] 7,
17; Pis.' Ex. 1 [D.E. 49-1 ] 3; Godfrey Aff. ¶ 7.
Several officers arrived on the scene, including Henderson,
Barrera, and Godfrey. See Compl. ¶¶ 40-41;
Henderson Aff. ¶¶ 4-5; Godfrey Aff. ¶ 7;
Duprey Aff., Ex. A [D.E. 39-1] 11. Although a tow truck had
arrived to tow plaintiffs' vehicle, Captain Duprey
informed plaintiffs that he intended to run a K9 dog around
plaintiffs' vehicle. See Compl. ¶¶ 38-39,
42-45; Duprey Aff., Ex. A [D.E. 39-1] 7, 11; Pis.' Ex. 1
[D.E. 49-1] 3, L. Brooks Dep. 55-56 [D.E. 39-8] 17; A. Brooks
Dep. 63-64 [D.E. 39-9] 18. Plaintiffs did not consent. See
Compl. ¶ 54; Duprey Aff., Ex. A [D.E. 39-1] 7; Henderson
Aff. ¶ 7; L. Brooks Dep. 56 [D.E. 39-8] 17; Gallop Aff.
[D.E. 49-10] 2. Defendants assert that the K9 alerted to the
presence of a controlled substance odor, which plaintiffs
dispute. Compare Compl. ¶¶ 46, 49, 51-52;
L. Brooks Dep. 56-57, 63-66 [D.E. 39-8] 17, 19-20; Gallop
Aff. [D.E. 49-10] 2, wife Duprey Aff., Ex. A [D.E. 39-1] 7,
17; Henderson Aff. ¶ 6; Barrera Aff. ¶¶
plaintiffs' request, Captain Duprey summoned Sheriff
Doughtie to the scene. See Compl. ¶¶ 56-59;
Doughtie Aff. [D.E. 39-3] ¶ 3; L. Brooks Dep. 58-59
[D.E. 39-8] 18; A. Brooks Dep. 64-65 [D.E. 39-9] 18. Doughtie
told Line that one of the officers had spoken with someone
who "did not have anything good to say about" Line,
but Doughtie asserts that the conversation remained
"courteous." Compare Compl. ¶ 60; L.
Brooks Dep. 59-60 [D.E. 39-8] 18, with Doughtie Aff. ¶
3. Either Sheriff Doughtie or Captain Duprey informed
plaintiffs "that they were not being arrested or
detained but that we were taking their car back to the
sheriffs office [to search it further] and they were free to
return with us or leave as they saw fit." Doughtie Aff.
¶ 4; see Compl. ¶ 63; Duprey Aff., Ex. A [D.E.
39-1] 8; Henderson Aff. ¶ 8; L. Brooks Dep. 60-61 [D.E.
39-8] 18. "Plaintiff verbally opposed the planned
action, asking Sheriff Doughtie what right they had to take
Plaintiffs' car and move it to the Sheriff s Office
without a search warrant, but the Sheriff maintained that
they were going to do a more thorough search of the car in a
lighted area before they release it." Compl. ¶ 64;
see L. Brooks Dep. 60-61 [D.E. 39-8] 18.
and the officers went to the sheriffs office. See Compl.
¶¶ 65-68; Duprey Aff., Ex. A [D.E. 39-1] 8;
Henderson Aff. ¶ 8; Doughtie Aff. ¶ 4. The parties
dispute whether plaintiffs were in custody at this point,
although plaintiffs admit that they had not been formally
arrested. Compare Compl. ¶¶ 66-67; L.
Brooks Dep. 66-67 [D.E. 39-8] 20, with Henderson Aff. ¶
8; Doughtie Aff. ¶ 4. Plaintiffs contend that they were
instructed to accompany the officers to the station. See L.
Brooks Dep. 66-67 [D.E. 39-8] 20. Although no one formally
questioned plaintiffs, Sheriff Doughtie "was trying to
interview [Line] ... in his slick way" by "starting
to ask . . . questions about what [plaintiffs] planned to do
when [they] were down there, did [plaintiffs] know anybody
down there, things of that nature." L. Brooks Dep. 69-70
[D.E. 39-8] 20-21.
sheriffs office, Barrera ran the K9 around the car again, and
the K9 again alerted to the presence of a controlled
substance odor on both the passenger and driver's sides
of the vehicle, and on the floorboards of the front seats.
See Duprey Aff., Ex. A [D.E. 39-1] 8, 13, 17; Henderson Aff.
¶ 8; cf Compl. ¶¶ 68-69 (alleging that the K9
"f[ound] nothing"). For approximately two hours,
Duprey "and other officers used micro cameras to search
in hard to reach areas of the car, raised and searched under
the hood on the car and in the trunk, and used wrenches to
take the car apart." Compl. ¶¶ 69-70; see
Duprey Aff., Ex. A [D.E. 39-1] 8, 13-14; Henderson Aff.
¶¶ 9-10. Plaintiffs allege that "[a]fter more
than two hours of watching the destruction of his car with
nothing being found to justify it, [Line] pleaded with
Sheriff Doughtie to stop, saying that this has gone on for
too long" and "requested that the Sheriff end this
situation and have his car put back together." Compl.
¶¶ 70-71; see L. Brooks Dep. 74-75 [D.E. 39-8] 22.
"Sheriff Doughtie said that he agreed, but that, '.
. . the way this car is torn to pieces there's no way we
can get it put back together tonight'." Compl.
¶ 72 (alteration in original).
the course of the search, Henderson "found six air
fresheners in a compartment under the driver's side seat
and another one under the rear seat, " which "drug
dealers often use... in an attempt to mask the odor of
illegal drugs and throw off the scent of police drug
dogs." Henderson Aff. ¶ 9; see Duprey Aff. ¶ 4
& Ex. A [D.E. 39-1] 14; cf L. Brooks Dep. 143-45 [D.E.
39-8] 39; A. Brooks Dep. 90-91 [D.E. 39-9] 25. Henderson also
found "tiny white powder specks" that tested
positive for cocaine when tested with "a Nark Swipe, a
moist towelette that is pink but turns bright blue when it
comes into contact with cocaine." Henderson Aff. ¶
10; see Duprey Aff. ¶ 4 & Ex. A [D.E. 39-1] 8, 18;
Doughtie Aff. ¶ 4; cf Compl. ¶¶ 74-77; L.
Brooks Dep. 74-79 [D.E. 39-8] 22-23 (disputing the validity
of the swipe); A. Brooks Dep. 91-93 [D.E. 39-9] 25.
that time the search was stopped and it was determined that
the search would continue the following morning after
obtaining a Search Warrant." Duprey Aff., Ex. A [D.E.
39-1] 8; see Compl. ¶ 77; Henderson Aff. ¶
10. "Lt. Duprey released Plaintiffs with their luggage
(which was never searched), and .... told Plaintiffs that
they could meet him at the Sheriffs Office in the morning
around 9:00 a.m. to watch them conduct a more complete search
of Plaintiffs' car for hidden compartments, after they
obtain a search warrant." Compl. ¶¶ 80-81; see