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Bolder v. Merritt

United States District Court, M.D. North Carolina

November 6, 2017

WILLIE J. BOLDER, Plaintiff,
v.
OFFICER PATRICK T. MERRITT JR., Defendant.

          MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          JOE L. WEBSTER UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Defendant Officer Patrick T. Merritt Jr.'s (hereinafter "Defendant") motion for summary judgment. (Docket Entry 37.) Plaintiff Willie J. Bolder (hereinafter "Plaintiff) has not responded to the motion. The matter is ripe for disposition. For the reasons stated herein, the Court recommends that Defendant's motion for summary judgment be granted.

         I. FACTUAL BACKGROUND

         In his amended complaint, Plaintiff alleges that Defendant conducted an unreasonable seizure of his cellular phone ("phone") in violation of his Fourth and/or Fourteenth Amendment of the U.S. Constitution. (See generally Am. Complaint (hereinafter "Compl"), Docket Entry 32.) In Plaintiffs complaint, he alleges that on April 29, 2014, Defendant arrived at the Hallmark Inn Hotel in Statesville, North Carolina, where Plaintiff was temporarily residing, and asked if Plaintiff would speak with him. (Docket Entry 2 at 3.) Plaintiff agreed because "[he] knew [he] had done nothing wrong[.]" Plaintiff then accompanied Defendant to his vehicle. There was another officer who accompanied Defendant who stated he "just came along for the ride[.]" (Id.)

         Defendant stated Plaintiff "was not under arrest or anything and neither was [he] a suspect, [Defendant] just wanted to get a statement from [Plaintiff] about what all took place at a easter egg hunt[.]" (Id.) Defendant proceeded to ask where Plaintiff was that night and he "answer ed[.]" (Id.) Defendant then asked Plaintiff whether he would perform a gun residue test and a lie detector test. (Id.) Plaintiff agreed to taking the gun residue test, but declined to perform the lie detector test. (Id.) Defendant inquired as to why Plaintiff would not take a lie detector test. (Id.) Plaintiff responded that he "was already nervous because he came out of no where questioning me about a murder and that I already had enough of my own problems to deal with[.]" (Id.) Defendant told Plaintiff he would "need the numbers to confirm [his] story" and Plaintiff retrieved his phone from his room. (Id.)

         Upon returning, Plaintiff provided the phone numbers and Defendant then called the numbers. (Id.) Defendant next told Plaintiff he would also need his phone as well, and Plaintiff stated "no why[.]" (Id.) Defendant responded because your "phone was used to contact the victim earlier that day telling victim to bring someone's car he was driving." (Id.) Plaintiff stated that "he couldn't have been serious" and explained how the murder had nothing to do with him. (Id.) Further, Plaintiff indicated that his phone contained not only personal information, including bank information and emails, but also his phone was the only way his family could contact him. (Id.) In addition, Plaintiff questioned Defendant as to whether any other individual was forced to give up his personal property, and Defendant answered yes. (Id.) Defendant told Plaintiff "[he] had no choice, " so he had to give Defendant his phone. (Id.) Plaintiff then asked for it back and Defendant refused. (Id.) Defendant told Plaintiff to tell him the number he needed, and he would get it for him. (Id.) Plaintiff then asked how he could be forced to give his phone to Defendant without a warrant, and he stated "it was connected to the case." (Id.) Plaintiff left the car after two hours because he was scared and tired. (Id.) Last, on May 9, 2014, Plaintiff was brought to Concord Police Department and his secondary phone was confiscated, which he alleges has nothing to do with the investigation.

         Defendant's summary judgment materials include the affidavit of Defendant Merritt. (Merritt Aff., Docket Entry 38.) According to Defendant, on April 21, 2014, Mr. Howard reported that a subject had been shot at his residence, 764 Central Drive, N.W. Concord, North Carolina. (Id. ¶ 2.) Once arriving at the location, officers found that the victim was suffering from gunshot wounds to his torso. (Id. ¶ 3.) Upon the victim being transferred to CMC-Northeast Medical Center, he was announced deceased, as a result of the gunshot wounds. (Id.) Thus, Defendant, along with other officers, were assigned to investigate the circumstances surrounding the death of the victim. (Id.)

         Through the investigation, officers became aware that on April 20, 2014, an Easter party was held at Mr. Howard's house, where an altercation between the victim and Plaintiff arose. (Id. ¶ 4.) Bystanders confirmed that Plaintiff had a gun in his car and that he told the victim "he would be back." (Id. ¶ 5.)

         Further, on April 29, 2014, Plaintiff was found at a Hallmark Inn in Statesville, North Carolina. (Id. ¶ 8.) When Defendant along with other officers arrived at Plaintiffs door they introduced themselves as detectives. (Id.) Plaintiffs first words were "am I going to jail?" (Id.) Defendant then responded that Plaintiff "was not under arrest and was free to leave at any time." (Id.) During the interview, Plaintiff stated he had been present at Mr. Howard's residence until 7:30 p.m., but that he was back at his own apartment by 8:42 p.m. (Id.) Plaintiff then stated he did not leave his residence for the remainder of the night. (Id.) Defendant observed Plaintiff "constantly look[ing] at his phone" and concluded he was nervous. (Id.) Plaintiff then stated "he always had phis phone] with him." (Id.) Defendant then "informed Plaintiff that [Defendant] needed his phone[, ]" and Plaintiff "handed his phone" to Defendant. (Id. ¶ 9.) Plaintiff remained in Defendant's car for fifteen minutes and "never asked for his phone back." (Id.)

         On April 30, 2014, "prior to accessing any information on" Plaintiffs phone, Defendant applied for and received a search warrant for Plaintiffs phone. (Id. ¶ 11; Exh. 2.) That same day, Plaintiff contacted Defendant to meet, and once arriving Plaintiff disclosed that Antwon Howard had a firearm on the night of the homicide. (Id. ¶ 12.) Further, Plaintiff told Defendant that Antwon Howard had stated he was going to "handle" the victim. (Id.) Plaintiff then came to the police department to provide an initial statement, and Defendant served the search warrant upon Plaintiff "to seize his phone." (Id. ¶ 13.) He also consented to a forensic examination of his cell phone by "signing a consent search form." (Id.) Through the forensic examination of Plaintiffs phone, Defendant found GPS coordinates indicating he was near the location of the shooting at the time it occurred, in contrast with Plaintiffs previous statements. (Id. ¶ 17.) Also a traffic camera, showed a sedan similar in appearance to Plaintiffs in the vicinity of the shooting. (Id. ¶ 20.) In addition, a message receipt was recovered on Plaintiffs phone indicating a purchase from a convenience store, located 7 miles away from the incident at 2:00 a.m. (Id.) From a surveillance photograph at the convenience store, officers viewed Plaintiff wearing camouflage and fatigue pants, and a dark colored hooded sweatshirt and hat. (Id. ¶ 21.) Plaintiffs clothing was similar in appearance to the individual looking for the victim described by Damesha Maxwell and Mr. Howard. (Id. ¶ 19.) On May 8, 2014, Plaintiff was charged with first degree murder, and on November 18, 2015, he was convicted. (Merrittt Aff. 22, 23.)

         II. PROCEDURAL BACKGROUND

         On July 25, 2014, Plaintiff filed a complaint against Defendant, pursuant to 42 U.S.C. § 1983. (See generally Complaint, Docket Entry 2.) On November 14, 2014, Defendant filed a motion to dismiss for failure to state a claim. (Docket Entry 10.) On May 15, 2015, the Court entered a memorandum opinion and recommendation that Defendant's motion to dismiss was granted in part, to the extent Defendant sought abstention of the matter pursuant to the Younger doctrine. (Docket Entry 15.) On June 11, 2015, the Court's memorandum opinion and. recommendation was adopted and the matter was stayed pending the resolution of the state court's criminal proceedings. (Docket Entry 17.)

         On February 29, 2016, Defendant filed his status report to the Court indicating that Plaintiff was found guilty of murder in the first degree on November 18, 2015, by jury verdict, and was now serving a life sentence at the North Carolina Central Prison. (Docket Entry 19.) On September 2, 2016, the Court entered a recommendation that Plaintiffs claim not be dismissed pursuant to Heck v. Humphrey, 512 U.S. 477 (1994), and that further proceedings commence in this matter. (Docket Entry 23.) The Court's recommendation was adopted on October 11, 2016. (Docket Entry 26.) On January 5, 2017, Defendant filed his answer to Plaintiffs complaint. (Docket Entry 30.) The Court entered an order placing this case on a standard discovery track and allowing a discovery completion date of July 24, 2017. (Docket Entry 31.) Plaintiff filed a motion entitled amended plea ("amended complaint") on February 27, 2017. (Docket Entry 32.) Defendant filed his answer to Plaintiffs amended complaint on March 13, 2017. (Docket Entry 33.) On September 6, 2017, Defendant filed his motion for summary judgment. (Docket Entry 37.)

         III. ...


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