Sprague v. Nally

Sprague v. Nally (2003-489); 178 Vt. 222; 882 A.2d 1164

2005 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.

                                 2005 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. (FN3)  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").