Sprague v. Nally (2003-489)
2004 VT 85
[Filed 22-Jul-2005]
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
2004 VT 85
No. 2003-489
Jonathan and Charlene Sprague Supreme Court
On Appeal from
v. Windham Superior Court
Matthew Nally and March Term, 2004
Harvey Burns
Karen R. Carroll, J.
W. E. Whittington of Whittington Law Associates, PLLC, Hanover, New
Hampshire, for Plaintiffs-Appellants.
William H. Sorrell, Attorney General, and Eve Jacobs-Carnahan, Assistant
Attorney General, Montpelier, for Defendants-Appellees.
PRESENT: Amestoy , C.J. (FN1), Dooley, Johnson, Skoglund and Reiber, JJ.
¶ 1. REIBER, J. In State v. Sprague, 2003 VT 20, ¶ 1, 175 Vt.
123, 824 A.2d 539, we held as a matter of state constitutional law that law
enforcement officers must have a reasonable basis to believe that their
safety or the safety of others is at risk, or that a crime has been
committed, before ordering the driver to exit a lawfully stopped vehicle.
We further held that the officer in that case lacked a reasonable basis for
the exit order; that the defendant had not voluntarily consented to leave
his vehicle; and that the illegal seizure tainted the defendant's later
purported consent to a search of his person, vehicle, and home, thereby
requiring suppression of the evidence seized. Id. ¶¶ 21-22, 30-34.
Following our decision, Jonathan Sprague, the defendant in State v.
Sprague, and his wife filed this civil action against the investigating
officers for damages resulting from the stop and searches. The officers
moved to dismiss the complaint on the basis of qualified immunity,
asserting that they had not violated any clearly established federal law or
state rights. The trial court granted the motion, and entered a judgment
dismissing the complaint with prejudice. For the reasons set forth below,
we affirm in part, reverse in part, and remand for further proceedings.
¶ 2. It is important at the outset to identify the factual basis of
the trial court's ruling. When deciding a motion to dismiss for failure to
state a claim, the court's "inquiry focuses on the absence of any facts,
reasonable factual inferences, and legal bases for recovery alleged in the
complaint, attachments thereto, or to matters the court may judicially
notice." Gilman v. Maine Mutual Fire Ins. Co., 2003 Vt. 55, ¶ 20, 175 Vt.
554, 830 A.2d 71. The trial court here stated that, for purposes of the
motion to dismiss, it was accepting the allegations in the complaint as
true and also "accept[ing] as given the facts stated in [State v.]
Sprague." Thus, although neither party appears to have formally requested
it, the trial court in effect took judicial notice of the facts set forth
in this Court's opinion in the criminal case, which, of course, involved
the same underlying incident that gave rise to the civil action. See
V.R.E. 201(c) ("A court may take judicial notice, whether requested or
not.").
¶ 3. Sprague does not contend that the trial court improperly took
judicial notice of the facts set forth in our prior opinion. Accordingly,
he has waived any claim that the court erroneously relied on those facts in
granting the motion to dismiss. See In re Hart, 167 Vt. 630, 631, 715 A.2d
640, 641 (1998) (mem.) (issues not raised on appeal are waived). (FN2) We
note, as well, that although Sprague made no formal request, he himself
relied expressly in his complaint on a number of findings and conclusions
from our opinion in Sprague. See State v. Longe, 170 Vt. 35, 40 n.*, 743
A.2d 569, 572 n.* (1999) (party may not predicate error on action that the
party has induced). Finally, we note the many authorities holding that a
trial or appellate court may properly take judicial notice of the facts set
forth in a prior appellate opinion in a related case. See, e.g., Baltins v.
James, 42 Cal. Rptr. 2d 896, 898 n.3 (Cal. Ct. App. 1995) (court in legal
malpractice action stemming from earlier dissolution proceeding may take
judicial notice of prior appellate opinion in the dissolution action); City
of Caldwell v. Roark, 575 P.2d 495, 497 n.1 (Idaho 1978) (court may take
judicial notice of facts set forth in prior opinion in related case); Bank
of Mead v. St. Paul Fire & Marine Ins. Co., 275 N.W.2d 822, 825 (Neb. 1979)
(trial court properly took judicial notice of, and entered findings of fact
based on, two prior related decisions of state supreme court); Collins v.
Collins, 898 P.2d 1316, 1318 (Okla. Ct. App. 1995) (court "may take
judicial notice of its own records and prior opinions in litigation
interconnected with the appeal before it").
¶ 4. We turn, accordingly, to the question whether, on the facts
thus established (and more fully described in the discussion below) the
trial court correctly concluded that Sprague had failed to demonstrate a
violation of clearly established law. We have summarized the doctrine of
qualified immunity as follows:
Such immunity protects lower-level government employees from tort
liability when they perform discretionary acts in good faith
during the course of their employment and within the scope of
their authority. Even in applying qualified official immunity to
state tort law claims, we use the federal objective good faith
standard to prevent exposing state employees to the distraction
and expense of defending themselves in the courtroom. The outcome
of the analysis depends on the objective reasonableness of the
official's conduct in relation to settled, clearly-established
law. Thus, if the official's conduct does not violate
clearly-established rights of which a reasonable person would have
known, the official is protected by qualified immunity from tort
liability.
Cook v. Nelson, 167 Vt. 505, 509, 712 A.2d 382, 384 (1998) (internal
quotations and citations omitted).
¶ 5. Sprague has alleged a federal civil rights claim under 42
U.S.C. § 1983, and several state tort claims, based generally on the same
underlying acts. Claims brought under 42 U.S.C. § 1983 must be grounded on
facts that would establish a violation of federal law. Chapman v. Houston
Welfare Rights Org., 441 U.S. 600, 617 (1979); Billado v. Appel, 165 Vt.
482, 489, 687 A.2d 84, 89 (1996). In evaluating a claim of qualified
immunity a court "must first determine whether the plaintiff has alleged
the deprivation of an actual constitutional right at all, and if so,
proceed to determine whether that right was clearly established at the time
of the alleged violation." Conn v. Gabbert, 526 U.S. 286, 290 (1999).
"Clearly established" for purposes of qualified immunity means that "[t]he
contours of the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right." Anderson v.
Creighton, 483 U.S. 635, 640 (1987). Thus, if the official reasonably
believes that his or her actions were lawful, the official receives
immunity even if a court later determines that they were not. See Hunter
v. Bryant, 502 U.S. 224, 229 (1991) (doctrine accommodates reasonable
"mistaken judgments"); Long v. L'Esperance, 166 Vt. 566, 571, 701 A.2d
1048, 1052 (1997) (officer's reasonable, albeit mistaken judgment
concerning existence of probable cause will not subject him to liability).
Similarly, "if the official's conduct does not violate clearly-established
rights of which a reasonable person would have known, the official is
protected by qualified immunity from tort liability." Nelson, 167 Vt. at
509, 712 A.2d at 384.
¶ 6. We turn accordingly to a consideration of Sprague's specific
factual claims, considered in light of the foregoing standards. We note at
the outset, however, what Sprague does not contend. He does not seek to
predicate liability upon the investigating officer's unwarranted directive
to exit the vehicle. The reason is clear. As we explained in Sprague,
federal law does not prohibit an exit order following a lawful traffic
stop, and Vermont law, while suggestive of a contrary approach, was
unsettled until our decision. 2003 VT 20, ¶¶ 13-14. Therefore, the
officer's conduct in effectively ordering Sprague from the vehicle was not
violative of clearly established state or federal law.
¶ 7. Sprague's claims are predicated instead on a series of
actions by the investigating officer after Sprague exited the vehicle.
First, Sprague contends that the officer effected an unconstitutional
seizure by ordering him to sit in the police cruiser without cause. As we
noted in Sprague, the videotape and transcript of the exchange reveal that
the officer stated, "you mind having a seat in my car while I check your
license, please?," and that Sprague, in response, started walking toward
the cruiser. Id. ¶ 2. Even interpreting the officer's statement as an
order rather than a request to which Sprague voluntarily acquiesced, the
facts do not establish a violation of clearly established law. Numerous
federal decisions have held that a reasonable investigation of a traffic
stop may include questioning the driver in a police patrol car. See, e.g.,
United States v. Hernandez, 93 F.3d 1493, 1499 (10th Cir. 1996) (fact that
questioning took place in patrol car did not transform it into illegal
detention); United States v. Ramos, 42 F.3d 1160, 1163 (8th Cir. 1994)
(reasonable investigation includes asking for license and registration and
brief questioning in patrol car); United States v. Rodriguez, 831 F.2d 162,
166 (7th Cir. 1987) (brief questioning in patrol car may be part of normal
investigative procedures). Although other courts have suggested that
moving the driver to a patrol car for questioning requires some independent
justification, see, e.g., United States v. Butler, 223 F.2d 368, 375 (6th
Cir. 2000), this position appears to be a minority view, and is certainly
not "clearly established." A reasonable officer under the circumstances
could have believed, therefore, that he was acting within his authority in
questioning Sprague inside the cruiser.
¶ 8. Sprague next contends the officer conducted an
unconstitutional search of his person by effectively ordering him to empty
his pockets. As we noted in Sprague, the officer asked him whether he had
"any weapons, knives, sharps, anything like that in your pocket? Would you
mind showing what you have, quick, before you get in my car?" 2003 VT 20,
¶ 3. Sprague thereupon emptied his pockets, revealing a small packet
which, in response to further questioning, he acknowledged contained
marijuana. He also acknowledged that he possessed "a pipe and bag." Id.
Although the trial court in the criminal case ruled that Sprague had
voluntarily consented to disclosure of the marijuana and accoutrements, we
held that the illegal seizure resulting from the unjustified automobile
exit "tainted" the subsequent consent and rendered it ineffective. Id. ¶
31. We further held that the search was not sufficiently separated in time
from the initial illegal seizure to attenuate the taint, and that the
defendant's compliance represented as much a submission to authority as the
initial vehicle exit.
¶ 9. The question here, however, is not whether Sprague's consent
was in fact voluntary, but whether a reasonable officer could have believed
that Sprague's disclosure of the marijuana and other information relating
to drug use was consensual, in light of the existing law. See Wilson v.
Layne, 526 U.S. 603, 615 (1999) (in civil rights action against officer for
constitutional violation, the appropriate question is whether a reasonable
officer could have believed that conduct "was lawful, in light of clearly
established law and the information the officers possessed"). Despite our
earlier holding, the facts here do not establish that a reasonable officer
under the circumstances would have known that his conduct violated clearly
established law. As noted earlier, the investigating officer had no reason
to believe at the time that ordering Sprague to exit the vehicle was
unconstitutional, or that directing Sprague to enter the police cruiser and
requesting that he empty his pockets before he entered the cruiser
represented an exploitation of the original illegality. Furthermore,
nothing in the facts alleged or the criminal record demonstrates any show
of physical force, display of a weapon, or other indicia of physical
coercion during the officer's conversation with Sprague. See United States
v. Drayton, 536 U.S. 194, 207 (2002) (holding that there is nothing
inherently coercive about police questioning or asking for consent to
search); United States v. Rosborough, 366 F.3d 1145, 1149 (10th Cir. 2004)
(facts tending to show that consent was coerced may include multiple
officers, physical contact, display of weapon, or aggressive tone).
¶ 10. Case law demonstrates, moreover, that courts have reached
diverse conclusions on the question of voluntariness where, as here, an
officer inquires whether a suspect would "mind" or would be "willing" to
submit to a search. Some have found such prefatory phrases as "would you
mind" to be in the nature of a permissive request, and the suspect's
response to be voluntary, while others have found them to be more in the
nature of a command, and the subsequent submission to be involuntary. (FN4)
Although under the circumstances presented here we found the officer's
repeated use of the phrase "would you mind" to be more in the nature of an
order than a request, Sprague, 2003 VT at ¶ 32, we do not believe that-in
light of the existing law and the circumstances-such a conclusion should
have been self-evident to a reasonable officer under the circumstances. We
cannot fairly conclude that a reasonable officer under the circumstances
would have known that his conduct was a violation of clearly established
law. Therefore, we must conclude that the officer's conduct was within the
scope of the qualified immunity doctrine.
¶ 11. Sprague also claims that the officer violated his Fourth
Amendment rights through continued questioning and a search of his wallet
inside the police cruiser, as well as through a subsequent warrantless
search of Sprague's vehicle and home, where several marijuana plants were
seized. Again, the facts as alleged and as found in the criminal case
reveal no physical contact, threats, or outright coercion by the officer,
no weapon, and relatively mild verbal persuasion to sign consent forms to
the vehicle and home searches. Divorced from the initial illegal exit
order-a circumstance that was not reasonably apparent to the officer at the
time-the facts do not support a conclusion that any reasonable officer
under the circumstances would have known that Sprague's consents were
involuntary under settled law. Indeed, where-as here-a trial court finds
that a defendant has validly consented to the searches, it is difficult to
conclude that a reasonable police officer should have understood the
situation to be otherwise. See Wilson, 526 U.S. at 618 (where courts
"disagree on a constitutional question, it is unfair to subject police to
money damages for picking the losing side of the controversy").
¶ 12. Sprague also claims a violation of federal and state rights
based on the allegedly secret videotaping by the police of the initial
traffic stop, and the subsequent videotaping of the search of his home.
However, Sprague cites no authority, nor have we discovered any, holding
that the increasingly common practice of police videotaping of traffic
stops violates a driver's reasonable expectation of privacy under the
Fourth Amendment or any other privacy interest. See Ohio v. Robinette, 519
U.S. 33, 35 (1996) (noting the use of "mounted video camera" to record
details of a routine traffic stop); United States v. Santos, 403 F.3d 1120,
1128 (10th Cir. 2005) (adverting to the "increasing availability of
videotapes of traffic stops due to cameras mounted on patrol cars"). Thus,
there is no basis to find a violation of any clearly established right.
Whether the police were authorized to videotape the later search of
Sprague's home strikes us as a closer question. Sprague has alleged that
he did not consent to the taping, and we question whether a home
search-even when consensual-implies a concomitant right to "seize" video
images of the search. The question here, however, is not whether the
taping was legal, but whether a reasonable officer would have known that it
violated clearly established federal or state rights, and we have not been
cited to, or discovered, any authority showing this to be the case.
Indeed, we note that the United States Supreme Court has stated, albeit in
dicta, that while the police may not invite the media to record the
execution of a search warrant, "it might be reasonable for police officers
to themselves videotape home entries as part of a 'quality control' effort
to ensure that the rights of homeowners are being respected." Wilson, 526
U.S. at 613. Accordingly, we discern no basis to conclude that the
videotaping of the search violated any clearly established rights.
¶ 13. Our conclusion concerning the alleged civil rights violations
applies with equal force to the state tort claims based on the same
underlying conduct. Although rather vague, the "invasion of privacy,"
negligence, and infliction of emotional distress claims appear to be
predicated largely on the searches of Sprague's person, vehicle, and home,
and the videotaping of the vehicle stop and home search. As noted,
however, the facts and law do not support a conclusion that any reasonable
officer would have known that the searches were involuntary under clearly
established law, or that the videotaping violated state or federal rights.
Accordingly, the state tort claims predicated on such conduct are barred by
the qualified immunity doctrine.
¶ 14. Sprague also alleged in his complaint that the police
violated his state and federal rights by damaging personal possessions,
dumping belongings on the floor, and making a mess during their search of
the home. Settled law supports the proposition that consent to search does
not include permission to intentionally damage the things to be searched.
See, e.g., United States v. Osage, 235 F.3d 518, 520 (10th Cir. 2000) (a
"search could be so invasive or destructive as to go beyond the scope of
the search consented to") (internal quotations omitted); United States v.
Martinez, 949 F.2d 1117, 1119 (11th Cir. 1992) ("general permission to
search does not include permission to inflict intentional damage to the
places or things to be searched"). The United States Supreme Court has
also recognized, however, that "officers executing search warrants on
occasion must damage property in order to perform their duty." Dalia v.
United States, 441 U.S. 238, 258 (1979). The test is reasonableness;
destruction of property that is not reasonably necessary to effectuate the
search may violate the Fourth Amendment. United States v. Becker, 929 F.2d
442, 446 (9th Cir. 1991). Courts have also recognized that minor damage
incidental to a search will not support a constitutional claim. See, e.g.,
United States v. Marquez, 337 F.3d 1203, 1209 (10th Cir. 2003) (removal of
plywood board during search was "de minimis in nature" and did not violate
Fourth Amendment); United States v. Zapata, 180 F.3d 1237, 1243 (11th Cir.
1999) (damage caused by forced removal of plastic clips to search door
panel was de minimis in nature and did not exceed scope of consent). At
this stage of the proceedings, however, it is impossible to determine
whether the officers' alleged destructive behavior was merely incidental
to, or reasonably necessary to effectuate, the search. Accordingly, we
conclude that the judgment of dismissal was premature with respect to this
claim, and must be reversed. See Powers v. Office of Child Support, 173
Vt. 390, 395, 795 A.2d 1259, 1263 (2002) (motion to dismiss should be
granted only where "it is beyond doubt that there exist no facts or
circumstances that would entitle [plaintiff] to relief").
¶ 15. Finally, Sprague's complaint alleged that his rights were
violated when, following the initial search of his home, the officers
returned and allegedly forced their way into the home over his wife's
objections. We did not specifically address the alleged reentry in Sprague.
The surrounding factual circumstances, including questions as to whether
the officers reasonably believed that the reentry was within the scope of
the initial consent, therefore remain open. Accordingly, we hold that the
trial court was premature in dismissing this component of the complaint,
and that this portion of the judgment must therefore reversed, and the
matter remanded for additional factual development.
That portion of the judgment dismissing plaintiffs' claims that
defendants violated their state and federal rights by destruction of
property and reentry into plaintiffs' home is reversed, and the matter
remanded for further proceedings. In all other respects, the judgment is
affirmed.
FOR THE COURT:
_______________________________________
Associate Justice
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Footnotes
FN1. Chief Justice Amestoy was present for oral argument but did not
participate in this decision.
FN2. Sprague did not mention the judicial notice issue in his briefs, and
when questioned at oral argument Sprague's counsel stated that he had not
requested judicial notice of this Court's opinion in State v. Sprague, but
otherwise did not present argument that the trial court had relied on
improper facts in deciding the motion to dismiss.
FN3. Sprague contends as a preliminary matter that, by entertaining
defendants' motion to dismiss prior to their answer, the trial court
improperly burdened him with the task of disproving the qualified immunity
defense. On the contrary, the court was well within its discretion in
deciding the issue at the earliest practical moment. See Crawford-El v.
Britton, 523 U.S. 574, 590 (1998) (in actions against government officials,
public interest is best served by "a defense that permits insubstantial
lawsuits to be quickly terminated"). Furthermore, once the issue was
raised, Sprague had the burden to rebut the qualified immunity defense "by
establishing that the official's allegedly wrongful conduct violated
clearly established law. We do not require that an official demonstrate
that he did not violate clearly established federal rights; our precedent
places that burden upon plaintiffs." Pierce v. Smith, 117 F.3d 866, 871-72
(5th Cir. 1997) (internal citations and quotations omitted).
FN4. Compare United States v. Pena-Sarabia, 297 F.3d 983, 985-86 (10th Cir.
2002) (finding that defendant's consent to officer's question "[d]o you
mind if we come in" was freely given, not a submission to show of
authority); and Stovall v. State, 553 S.E.2d 297, 299 (Ga. Ct. App. 2001)
(suspect's consent to officer's question "[w]ould you mind if I pat you
down for weapons" was voluntary ); and State v. Hansen, 2002 UT 125, ***58,
63 P.3d 650 (suspect's assent to "permissive question, - 'Do you mind if I
search'" was not coerced), with Smith v. State, 753 So. 2d 713, 715, 719
(Fla. Dist. Ct. App. 2000) (characterizing officer's statement "[d]o you
mind lifting up your tongue" as "command" rather than request); and State
v. Dezso, 512 N.W.2d 877, 879, 881 (Minn. 1994) (holding that defendant's
assent to officer's question, "[m]ind if I take a look in your wallet," was
involuntary despite use of "nonauthoritative language").