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Baker v. City of Durham

United States District Court, M.D. North Carolina

July 13, 2018

BRIAN JOSHUA BAKER, Plaintiff,
v.
CITY OF DURHAM, et al, Defendants.

          MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Joe L. Webster United States Magistrate Judge

         This matter is before the Court on Defendant Dorothea Alene Rosencrans's ("Defendant") motion to dismiss for failure to state a claim and motion for summary judgment. (Def.'s Mot. Dismiss, Docket Entry 77; Def.'s Mot. Summ. J., Docket Entry 93.) The matter is ripe for disposition. For the reasons stated herein, the Court recommends granting both motions.

         I. PROCEDURAL BACKGROUND

         On October 20, 2014, Plaintiff Brian Joshua Baker, & pro se inmate, filed a complaint pursuant to 42 U.S.C. § 1983 alleging unlawful search and seizure and excessive use of force in violation of the Fourth Amendment against Defendant and others[1]. (See generally Compl, Docket Entry 2; see also 2d Am. Compl, Docket Entry 62.) Plaintiffs claims arise from a "no-knock"[2] search that was conducted on October 21, 2011, at his girlfriend's apartment where he was staying. (2d Am. Compl. ¶¶ 29-30, 49-56.) The search was conducted in response to a break in at La Cocina Mexican Restaurant in Mebane, North Carolina and pursuant to a warrant based in part on an anonymous tip. (Id.) Plaintiff alleges that the search was illegal because: (1) the anonymous informant could not be verified as reliable; (2) a search for "[a]ny and all stolen property" was improper because there was nothing stolen from the business; (3) the warrant was "not particularly descriptive," and therefore did not give officers proper guidance regarding which items to seize; (4) the "no-knock" search warrant was unnecessary and conducted as punishment for Plaintiffs previous lack of cooperation; and (5) the items seized during the search "had absolutely nothing to do with the investigation and could only be seen as a sign of vindictiveness." (2d. Am. Compl. ¶¶ 51-56.)

         On January 2, 2018, Defendant filed a motion to dismiss, and on March 28, 2018, a motion for summary judgment. (Def.'s Mot. Dismiss; Def.'s Mot. Summ. J.) She argues in each that Plaintiffs claims are conclusory and barred by the United States Supreme Court's Decision in Heck. v. Humphrey.[3] (Def.'s Mot. Dismiss; Def.'s Mot. Summ. J.; see also Def.'s Mem. Supp. Mot. Dismiss, Docket Entry 78; Def.'s Mem. Supp. Mot. Summ. J, Docket Entry 94.) Plaintiff filed a response in opposition to each motion. (Pl.'s Response Opp. Mot. Dismiss, Docket Entry 81; Pl.'s Response Opp. Mot. Summ. J., Docket Entry 100.) To his response in opposition to Defendant's motion for summary judgment (Pl.'s Response Opp. Mot. Summ. J. at 2-22), Plaintiff attached his declaration (id. at 1), Detective John Franklin and Officer Ryan Cook's case supplemental reports of La Cocina break in (id. at 23-24), the search warrant and search warrant application (id. at 25-34), [4] and an inventory of the items seized pursuant to the warrant (id. at 35-36.)

         II. FACTUAL BACKGROUND

         a. Plaintiffs Complaint

         In his second amended complaint, Plaintiff describes the events leading up to search as follows. (2d. Am. Compl. ¶¶ 14-30.) On the morning of October 4, 2011, the Mebane Police Department responded to a break in in progress at La Cocina Mexican Restaurant in Mebane, North Carolina in Alamance County. (Id. ¶¶ 14, 16.) When officers arrived, the perpetrators had already fled the scene. (Id.) Nothing was reported stolen, but there was some damage to the business. (Id.) Police obtained a description of the vehicle used in the break in. (Id. ¶¶ 15-16.) On October 9, 2011, Orange County Sheriffs Department Deputy Tyler Berry pulled Plaintiff over driving a black, 2003 Ford Crown Victoria Police Interceptor with a CB antenna and silver "detective" center caps. (Id. ¶¶ 16, 21.) Plaintiffs girlfriend, Angela Butler, was also in the vehicle. (Id. ¶ 16.) Deputy Berry told Plaintiff that his vehicle matched the description of the vehicle used in a robbery in Alamance County and asked Plaintiff to wait for Detective Franklin. (Id.) Plaintiff agreed. (Id.)

         Detective Franklin arrived with an Officer Moody. (Id. ¶ 17.) Detective Franklin told Plaintiff that he suspected that another vehicle that matched that description was actually the one used in the break in but asked to search Plaintiffs vehicle anyway. (Id.) Plaintiff denied consent to search his vehicle, which "visibly upset" Detective Franklin. (Id.) Detective Franklin and Officer Moody conversed briefly in private, then looked in the windows of the vehicle with their flashlights, took pictures of the vehicle and asked for Plaintiff and Ms. Buder's licenses. (Id. ¶¶ 17-18.) Detective Franklin and the officers let Plaintiff go. (Id. ¶ 18.)

         On October 10, 2011, Durham Police pulled Plaintiff over, this time for "looking too official." (Id. ¶ 19.) Officers again asked to search the vehicle, and Plaintiff refused. (Id.) Officers asked Plaintiff to exit the vehicle so they could "run the [K-9] dog around the car." (Id.) An officer rolled the driver-side window of the vehicle down. (Id. ¶ 20.) The K-9 jumped through the window and sat down in the rear of the car. (Id.) Using the "sit down" alert as an excuse, officers searched Plaintiffs vehicle. (Id.) They found nothing and allowed Plaintiff to leave. (Id.) As soon as Plaintiff got home, he removed the mounted CB antenna and the silver "Detective" center caps from the vehicle. (Id. ¶ 21)

         The same day, after attempting to locate Plaintiff at his mother's house, officers located Plaintiffs vehicle outside Ms. Buder's apartment at 1200 Leon Street in Durham, North Carolina and took more pictures of it. (Id. ¶ 22.) Detective Franklin asked one Sergeant Price to place surveillance on Plaintiffs vehicle, but Sergeant Price told Detective Franklin that he was too short staffed. (Id. ¶ 23.) The following day, Detective Franklin and Officer Apple took more pictures of the vehicle outside Ms. Buder's house, purportedly because the center caps had been removed, although they had noticed and photographed the alterations to the vehicle the day before. (Id. ¶¶ 21-22, 24.) On October 14, 2011, Detective Franklin and Officer Apple went to Ms. Butler's apartment to make contact with her. (Id. ¶ 25.) No one answered the door, so they took pictures of Ms. Butler's vehicle. (Id.) On October 18, 2011, they tried again to make contact with Ms. Butler at her apartment and again no one answered the door. (Id. ¶ 26.) Officers learned that she worked at T.G.I. Friday's in Durham, and on October 19, 2011, they went there to speak with her. (Id. ¶ 27.) Detective Franklin asked Ms. Butler for consent to search her apartment; Ms. Buder refused. (Id. ¶ 28.)

         On October 20, 2011, Defendant and Detective Chris Ray Header applied for a "no-knock" search warrant. (Id. ¶ 29.) In the warrant application, Defendant swore that she had personally received a call from someone wishing to remain anonymous. (Id. ¶ 30.) Defendant swore that the informant told her that Plaintiff, Angela Buder and one other person had burglarized La Cocina and that he or she had seen numerous weapons inside Ms. Butier's apartment. (Id.) Defendant omitted from her warrant application the fact that nothing was stolen from the business. (Id. ¶¶ 30, 52.)

         On October 21, 2011, six individuals carrying shotguns and dressed in black suits and helmets with face shields (John Does Nos. 1-6) burst into the apartment on Leon Street. (Id. ¶¶ 31-32.) They instructed Plaintiff to get on the ground. (Id. ¶32.) Plaintiff raised his hands above his head and got down on his knees. (Id.) The individuals threw Plaintiff to the floor, beat him in the face, choked him, and put a knee in his back while they screamed "quit resisting." (Id. ¶¶ 33-34.) After they cuffed Plaintiff, one of the officers kicked Plaintiff between the legs and jerked him to a standing position by the hand cuffs. (Id. ¶ 34.) Plaintiff was then seated outside the apartment while Defendant, Detective Header, Detective Franklin, and other Durham police officers searched the apartment. (Id. ¶¶ 35-36.) Officers B.T. Francis and H.M. Crenshaw approached Plaintiff with a pink criminal summons. (Id. ¶ 37.) They told Plaintiff that they had found a minute amount of marijuana and some drug paraphernalia in a back bedroom and that Plaintiff would be charged for it. (Id.) Defendant and the other searching officers seized boxes of Plaintiff s property including a laptop, a palm pilot, cell phones, an external hard drive and thumb drive, pocket knives, a BB gun, binoculars, sheers, wire crimpers and stripers, various clothing, and Plaintiffs vehicle. (Id. ¶ 38.) Officers took Plaintiff to the hospital, where he was treated for injuries, then to the Alamance County Jail. (Id. ¶¶ 39-41.)

         When Plaintiffs mother and girlfriend returned to the apartment later that day, they found the door open. (Id. ¶ 42.) A substantial amount of Plaintiff s property had been stolen. (Id.) Plaintiffs mother called the Durham Police Department to complain about the assault on Plaintiff during the search. (Id. ¶ 43.) Plaintiffs mother was informed that Plaintiff had resisted arrest. (Id.)

         Police returned Plaintiffs property, including his vehicle, to his mother on July 9, 2012. (Id. ¶ 44.) When returned, Plaintiffs vehicle, which had been in good condition when seized, had rusted wheels, flat and warped tires, and damage the exterior finish or "coat". (Id.) Also in July, 2012, blood tests revealed that Plaintiffs thyroid wasn't functioning properly. (Id. ¶ 45.) While in prison, Plaintiff began to have nightmares about being re-arrested. After his release, Plaintiff continued to have nightmares, and also experienced rapid weight loss, nausea, vomiting, diarrhea, palpitations, chest and stomach pain, difficulty breathing, headaches, anxiety, and panic attacks. (Id. ¶ 46.) Plaintiff sought medical treatment and was diagnosed with anxiety and depression. (Id. ¶¶ 46-47.)

         b. Plaintiffs Response in Opposition to Defendant's Motion for Summary Judgment

         The case supplemental reports and the search warrant and application Plaintiff provided give additional detail of the La Cocina break in and the ensuing investigation. (Pl.'s Response Opp. Mot. Summ. J. at 23-34.) Detective John Franklin and Officer Ryan Cook, who responded to the break in, each composed a supplemental report based on the surveillance video footage and their interviews with La Cocina employee and witness Francisco Urieda-Ponciano. (Id. at 23-34.) Officer Cook summarized the activity captured in the surveillance video footage as follows:

At 6:55am two unknown white males came into the restaurant through the back door. . . . Both suspects entered the business and [separated]. Suspect [one] walked through the business and walked to a room located in the back of the restaurant while suspect [two] stayed in the kitchen. . . . Suspect [one] then walked back to the kitchen area and used a crow bar to enter the office. Both suspects entered the office and started trying to break open the safe. The suspects then left out the back door of the business. At this time, [an employee, ] Mr. [Francisco Urieda]-P[o]nciano entered the business through the front door and walked back to the kitchen. You can see Mr. P[o]nciano talking on the phone and at that point suspect [one] re-enters the business through the back door. A few seconds pass, and the suspect turns around and leaves the business.

(Id. at 23.) As to the suspects' attire, Officer Cook reported,

One of the suspects (suspect [one]) was wearing a long black jacket, blue jeans, black shoes, black gloves, and had a dark colored bandanna over his face. The other suspect (suspect [two]) was wearing a long black jacket, dark pants, a dark colored tobagan [sic] with a white stripe, and was wearing a black bookbag. . . . When suspect [one] walked out of the back room he was pulling his hood from his jacket back over his head and at that point, I could see that suspect [one] had a shaved head but could not tell if he had any facial hair.

(Id.) Detective Franklin provided additional detail,

Suspect [one] appeared to be a white male wearing a coat with a hood, blue jeans, dark shoes, dark gloves with a light design near the wrist. Suspect [one] appeared to keep his nose, mouth, and chin covered using a dark bandana. Suspect [one] was carrying a yellow crowbar. Suspect [two] appeared to be a white unknown gendered person with a heavy build wearing a dark coat, knit cap containing a design, white t-shirt under the coat, blue jeans, dark gloves with a design (believed to be black Mechanics gloves with white lettering). Suspect [two] appeared to keep his/her nose, mouth, and chin covered using a dark bandana. Suspect [two] was carrying a dark canvass backpack with a large handle.

(Id. at 24.)

         Detective Franklin and Officer Cook also interviewed the witness to the break in, La Cocina employee Francisco Urieda-Ponciano. (Id. at 23-34.) Mr. Urieda-Ponciano reported that when suspect one reentered the building, suspect one asked him, "Amigo, is there a problem?" (Id. at 24.) Mr. Urieda-Ponciano further reported that he saw a black vehicle (possibly a 90's model Crown Victoria) parked outside. (Id. at 23.) Mr. Urieda-Ponciano stated an unknown white female with "blonde-ish" hair and possibly wearing a pink shirt was driving, and there were two other white males in the vehicle, both wearing all black with their faces covered. (Id.)

         The search warrant and application, attested to by Defendant and co-affiant Detective C. Header and signed by Alamance County Superior Court Judge Robert F. Johnson, further describe the ensiling investigation. (Pl.'s Response Opp. Mot. Summ. J. at 25-34.) Surveillance footage from a neighboring business confirmed that the vehicle seen picking up the suspects from behind La Cocina at the time of the break in was black with silver center hubs. (Id. at 28.) Around the same time, Detective Header was on patrol nearby when he "noticed a black vehicle with center hubcaps, an antennae mounted on the center of the rear trunk, and a small, think paper tag." (Id.) Detective Header's in-car camera an image of the vehicle. (Id.) Mebane Police Department circulated a description of the suspect vehicle to surrounding agencies. (Id. at 29.)

         On Sunday, October 9, 2011, Deputy Berry observed and stopped a vehicle matching the description of the suspect vehicle. (Id.) The vehicle was a black Ford Crown Victoria with a small, thin paper tag and an antenna mounted on the center of the rear trunk area. (Id.) A police scanner was mounted between the two front seats. (Id.) Plaintiff and Ms. Butler were in the car. (Id.) Plaintiff told police he had purchased the vehicle, which was registered to the City of Indianapolis, Indiana, on eBay. (Id. at 30.) Ms. Butler told police she lived at 1200 Leon Street, later confirming that she occupied apartment D6. (Id.)[5] Plaintiffs vehicle was observed there on October 10, 2011. (Id.)

         The warrant application also describes an anonymous tip Defendant received on October 20, 2011. (Id. at 30-31.) According to the warrant application,

This person wished to remain anonymous as they fear for their personal safety. The source stated that Brian Baker and Angela Butler along with other person whom the source believed to be Chris Chamberlin, were the persons who burglarized the La Cocina and that the three had been talking about the offense, bragging about having been stopped in Orange County and that officers apparently did not "have anything" on them because they weren't arrested. In addition, the person said that [Brian] Baker made the statement that they had gone into the business and the alarm went off, so they exited the building to wait to see what kind of response there would be, and when there was no response from Police, they reentered the building and saw a "Mexican" in the business on the phone and assumed that he was calling the police.
In addition, the source said that they know that Brian Baker has an extensive history of breaking into businesses and burglarizing the safes. Sgt. Rosencrans has verified the information provided by the anonymous source which includes that Angela Buder is residing at 1200 Leon Street, Apartment D6, Durham, NC as well as intimate details of the Burglary that have not been made public and could have only come from someone who was inside the business at the time. The source spoke about Brian Baker's extensive criminal history and that he is the boyfriend of Angela Buder and that the source of information has seen numerous weapons such as handguns inside the residence.

(Id.)

         The warrant application also notes that "[l]n the video at La Cocina, the face of suspect [one] is partially seen and based upon the photos taken at the vehicle stop in Orange [C]ounty of suspect Brian Joshua Baker, there appears to be a strong likeness of facial features." (Id. at 30.)

         Finally, the warrant application indicates that Plaintiffs criminal history includes thirty-two counts of felony breaking and entering, fourteen counts of felony larceny after breaking and entering, felony larceny, common law robbery and six counts of safe cracking. (Id.) In addition,

Sgt. Rosencrans reviewed statements from other agencies investigations in which Brian Joshua Baker was arrested for Safecracking and Burglary on December 15, 2000 in which Baker gave a full and detailed statement concerning safe burglaries and that his method of operation was to park at the rear of the business and to either use a pry tool or to kick in the back door and to search out and find the safe in the business then break into same using pry tools. In the statement, ...

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