United States District Court, M.D. North Carolina
WILLIE J. BOLDER, Plaintiff,
OFFICER PATRICK T. MERRITT JR., Defendant.
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
WEBSTER UNITED STATES MAGISTRATE JUDGE
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.
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.)
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.)
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.
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.
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.)
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.)
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,
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
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.)