United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
Webster United States Magistrate Judge
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.
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. (See generally Compl,
Docket Entry 2; see also 2d Am. Compl, Docket Entry
62.) Plaintiffs claims arise from a
"no-knock" 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.)
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. (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),  and an inventory of the items seized
pursuant to the warrant (id. at 35-36.)
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.)
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.)
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)
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.)
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.)
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.
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
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.)
Plaintiffs Response in Opposition to Defendant's Motion
for Summary Judgment
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
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
(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.)
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.)
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.)
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.) Plaintiffs
vehicle was observed there on October 10, 2011.
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.
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
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, ...