United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill, Chief Judge
before the Court are cross motions for summary judgment.
See Dkts. 25, 42, 43. The Court heard oral argument
on the motions on February 13, 2017 and took the matters
under advisement. For the reasons explained below, the Court
will deny Plaintiff's Partial Motion for Summary Judgment
re Tracking Device (Dkt. 43), grant Defendants' Motion
for Summary Judgment (Dkt. 25), and grant in part and deny in
part Defendants' Partial Motion for Summary Judgment
Ashley Moreno brings suit against the State of Idaho, Idaho
State Police (“ISP), and three ISP officers-Ryan
Blackhawk, Paul Olsen, and John Kempf-relating to the
warrantless installation and use of a GPS tracking device and
Moreno's subsequent arrest and interrogation.
August 21, 2013, Idaho State Police detective Olsen had been
informed that Ryan Dalley, a friend or acquaintance of
Moreno, had missed several probation check-ins. Def.
SOF ¶ 3, Dkt. 42-1. Dalley's probation officer
intended to file a probation violation and agent warrant for
Dalley's arrest. Id. ¶ 3. Based on
that information, Idaho State Police conducted surveillance
on Dalley as he drove to various locations around Pocatello.
Compl. ¶ 17, Dkt. 1. Dalley was alone and
driving a gold-colored Chevrolet Blazer during his visits to
these locations. Def. SOF ¶ 7.
vehicle's registered owner was Casey Casper. Pl.
SOF ¶ 6, Dkt. 52-1. Casper agreed to allow Moreno
to use and take care of the vehicle “as if it were her
own” until Mr. Casper was released from jail.
Casper Aff. Dkt. 43-2. Moreno, in turn, had allowed
Dalley to use the Blazer to run errands on August 21. The
Officers were aware that Casper was the Blazer's
registered owner and that Ashlyn Moreno had previously driven
the vehicle. Pl. SOF ¶¶ 2, 6.
August 21, 2013, while the vehicle was parked in a grocery
store parking lot, and without a warrant, Officer Olsen
installed a GPS tracking device on the Blazer. Pl.
SOF ¶¶ 1, 10, 12. On August 22, 2013, Officers
Blackhawk, Olsen, Edgely and Kempf used the GPS tracking
device to locate the Blazer on the public streets. Pl.
SOF ¶ 13. Dalley was driving the Blazer and Moreno
was a passenger at that time. Def. SOF ¶ 15. A
traffic stop was attempted, but Dalley did not stop the
vehicle. Id. ¶ 16. Officers thereafter used the
GPS tracking device to relocate the Blazer on Maryzelle Lane
in Pocatello. Pl. SOF ¶ 17.
Blackhawk was first to arrive at the location of the stopped
Blazer. Id. ¶ 18. Olsen followed closely
behind. Id. Dalley had fled the scene by the time
Blackhawk arrived but Moreno remained in the vehicle.
Id. ¶¶ 19, 20. Upon arriving, Detective
Olsen drew his weapon and ordered Ashlyn to exit the car with
her hands up, and she complied. Id. ¶¶ 21.
Ashlyn was handcuffed and ordered to kneel on the concrete
driveway on which they were standing. Id. ¶ 22.
and Kempf questioned Moreno while she knelt on the ground in
handcuffs, seeking information about Dalley's
whereabouts. Id. ¶ 23; Blackhawk Dec.,
¶¶ 25-28, Dkt. 29-3. Moreno was not informed of her
Miranda rights during this questioning. Pl. SOF
¶ 24. Ashlyn remained kneeling in handcuffs on concrete
for 25 to 45 minutes while additional officers, including
Lieutenant John Kempf, a supervisory officer, searched the
surrounding neighborhood looking for Ryan Dalley.
Id. ¶ 26. When Kempf returned from the search,
he ordered Blackhawk and Olsen to arrest Moreno for resisting
and obstructing. Id. ¶ 28. They did so.
filed this action under both 42 U.S.C. § 1983 and state
law, alleging the following constitutional deprivations: (1)
unlawful search, through the warrantless installation and use
of the GPS tracking device; (2) coercive questioning and
compelled self-incrimination; (3) unlawful arrest; (4)
excessive force; and (5) failure to train and supervise.
Plaintiff brought additional claims against Defendant
Blackhawk, not at issue here, for a violation of her right to
State of Idaho, Idaho State Police, Olsen, and Kempf filed an
early motion for summary judgment seeking a ruling that they
have qualified immunity from the unlawful search claim. Dkt.
25. They later filed a second motion for summary judgment
encompassing all but Counts V and VI - in those counts, only
Blackhawk is a named defendant. Dkt. 42. Specifically, these
defendants argue that (1) Plaintiff has failed to establish
the above-mentioned constitutional violations; (2) that the
officers are entitled to qualified immunity on all §
1983 claims; and (3) that all claims against the State of
Idaho, Idaho State Police, and Officer Defendants, in their
official capacities, are barred by sovereign immunity.
Plaintiff then filed a cross motion for summary judgment on
the unlawful search claim. Dkt. 43.
Motion for Summary Judgment.
judgment is appropriate where a party can show that, as to
any claim or defense, “there is no genuine dispute as
to any material fact and the movant is entitled to judgment
as a matter of law.” Fed.R.Civ.P. 56(a). One of the
principal purposes of the summary judgment “is to
isolate and dispose of factually unsupported claims . . .
.” Celotex Corp. v. Catrett, 477 U.S. 317,
323-24 (1986). It is “not a disfavored procedural
shortcut, ” but is instead the “principal tool[ ]
by which factually insufficient claims or defenses [can] be
isolated and prevented from going to trial with the attendant
unwarranted consumption of public and private
resources.” Id. at 327. “[T]he mere
existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). There must be a
genuine dispute as to any material fact - a fact
“that may affect the outcome of the case.”
Id. at 248.
evidence must be viewed in the light most favorable to the
non-moving party, and the Court must not make credibility
findings. Id. at 255. Direct testimony of the
non-movant must be believed, however implausible. Leslie
v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). On
the other hand, the Court is not required to adopt
unreasonable inferences from circumstantial evidence.
McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir.
moving party bears the initial burden of demonstrating the
absence of a genuine dispute as to material fact.
Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.
2001) (en banc). To carry this burden, the moving party need
not introduce any affirmative evidence (such as affidavits or
deposition excerpts) but may simply point out the absence of
evidence to support the nonmoving party's case.
Fairbank v. Wunderman Cato Johnson, 212
F.3d 528, 532 (9th Cir.2000).
shifts the burden to the non-moving party to produce evidence
sufficient to support a jury verdict in her favor.
Deveraux, 263 F.3d at 1076. The non-moving party
must go beyond the pleadings and show “by her [ ]
affidavits, or by the depositions, answers to
interrogatories, or admissions on file” that a genuine
dispute of material fact exists. Celotex, 477 U.S.
doctrine of qualified immunity “protects government
officials from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Pearson v. Callahan, 555 U.S. 223, 231
(2009). Qualified immunity gives government officials
“breathing room to make reasonable but mistaken
judgments about open legal questions. When properly applied,
it protects all but the plainly incompetent or those who
knowingly violate the law.” Ashcroft v.
al-Kidd, 563 U.S. 731, 743 (2011).
determining whether an officer is entitled to qualified
immunity on summary judgment, the Court must determine
whether the facts alleged, taken in the light most favorable
to the plaintiff, “(1) . . . show that the
officer's conduct violated a constitutional right, and
(2) the right at issue was clearly established at the time of
the incident such that a reasonable officer would have
understood his or her conduct to be unlawful in that
situation.” Torres v. City of Madera, 648 F.3d
1119, 1123 (9th Cir. 2011). If there is a material dispute as
to the “facts and circumstances within an officer's
knowledge, ” or “what the officer and claimant
did or failed to do, ” summary judgment is
inappropriate. Act Up!/Portland v. Bagley, 988 F.2d
868, 873 (9th Cir. 1993).
determine whether the right was clearly established, the
Court turns to Supreme Court and Ninth Circuit law existing
at the time of the alleged acts. See Osolinski v.
Kane, 92 F.3d 934, 936 (9th Cir. 1996). In the absence
of binding precedent, the district court should look to
available decisions of other circuits and district courts to
ascertain whether the law is clearly established. See
inquiry of whether a right was clearly established
“must be undertaken in light of the specific context of
the case, not as a broad general proposition.”
Saucier, 533 U.S. at 201. “The relevant,
dispositive inquiry is whether it would be clear to a
reasonable officer that his conduct was unlawful in the
situation he confronted.” Saucier v. Katz, 533
U.S. 194, 202 (2001) (citing Wilson v. Layne, 526
U.S. 603, 615 (1999)). “This is not to say that an
official action is protected by qualified immunity unless the
very action in question has previously been held unlawful, .
. . [but] in the light of pre-existing law the unlawfulness
must be apparent.” Creighton, 483 U.S. at 640,
107 S.Ct. 3034 (internal citations omitted).
“[E]xisting precedent must have placed the statutory or
constitutional question beyond debate.” Mullenix v.
Luna, 136 S.Ct. 305, 308 (2015) (citing Ashcroft v.
al-Kidd, 563 U.S. at 741).
Claims Against State of Idaho, ISP, and Officers in their
correctly argue that all claims against Defendants State of
Idaho, Idaho State Police, and the officers in their official
capacity are barred by the Eleventh Amendment to the United
States Constitution and by the statutory bounds of §
1983. Def. Mot. at 5-7, Dkt. 42. A state, its
agencies, and its actors in their official capacities are not
“persons” who may be sued under 42 U.S.C. §
1983. Will v. Michigan Dep't of State Police,
491 U.S. 58 (1989). Furthermore, Eleventh Amendment sovereign
immunity bars private § 1983 and state law damages
claims against these entities in federal court
without their consent. Lee v. Murphy, 844 F.2d 628,
631 (9th Cir. 1988). Plaintiff concedes that these claims
“can be properly dismissed on summary judgment.”
Pl. Resp. at 4, Dkt. 52.
the Court will award summary judgment in favor of Defendants
as to all claims against the State of Idaho, ISP, and
officers in their official capacity-both under state law and
§ 1983. This leaves only the claims brought against
Officers Kempf, Olsen, and Blackhawk (collectively,
“defendant officers”) in their personal capacity.
Count 1 - Unreasonable Search (§ 1983)
alleges that the warrantless placement and subsequent use of
the GPS tracking device constituted an unlawful search under
the Fourth Amendment, in light of the Supreme Court's
decision in United States v. Jones, 565 U.S. 400
(2012). The defendant officers argue that Moreno lacks
standing to challenge the search and that the officers are
nonetheless entitled to qualified immunity. Plaintiff filed a
cross-motion for summary judgment on this claim.
Whether a Fourth Amendment Search Occurred
Fourth Amendment protects the rights of the people “to
be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S.
Const., amend. IV. Warrantless searches “are per
se unreasonable under the Fourth Amendment-subject only
to a few specifically established and well-delineated
exceptions.” Katz v. United States, 389 U.S.
347, 357. A “search” for purposes of the Fourth
Amendment occurs either when the government intrudes upon a
person's “reasonable expectation of privacy,
” Katz v. United States, 389 U.S. 347, 361
(1967) (Harlan, J., concurring), or when the government
intrudes upon a “constitutionally protected area”
for the purpose of acquiring evidence. See United States
v. Jones, 565 U.S. 400, 408 n.5 (2012); Florida v.
Jardines, 133 S.Ct. 1409, 1414 (2013).
claim Fourth Amendment protection, an individual must
demonstrate that she personally has a connection to the place
or thing being searched. Under the Katz “privacy
expectations” approach, the individual must establish a
“legitimate expectation of privacy in the invaded
place.” Rakas v. Illinois, 439 U.S. 128, 143.
Under the Jones “trespass” approach, the
claimant must have “a sufficient property or possessory
interest” in the property being searched. See Lyall
v. City of Los Angeles, 807 F.3d 1178, 1196 n.9 (9th
United States v. Jones, the U.S. Supreme Court
applied the common-law trespass approach to hold that
“the Government's installation of a GPS device on a
target's vehicle, and its use of that device to monitor
the vehicle's movements, constitutes a
‘search'” within the meaning of the Fourth
Amendment. 565 U.S. at 404. Here, the defendant officers
installed a GPS device on the Blazer and used it to gather
information about the vehicle's whereabouts, in a manner
nearly indistinguishable from the facts in Jones.
The officers acted without a warrant and do not argue that
the GPS tracking was exempt from the general warrant
requirement. There is no question, therefore, that the
warrantless installation of a GPS device on the Blazer here
constituted an unreasonable search under the Fourth
does not end the inquiry, however. To claim protection of the
Fourth Amendment under the Jones decision, Moreno
must establish that she personally had a sufficient property
or possessory interest in the Blazer. In Jones
itself, the defendant did not own the vehicle in question but
“had at least the property rights of a bailee, ”
an interest which the Court deemed sufficient. United
States v. Jones, 565 U.S. 400, 404 n.2 (2012). At least
with respect to automobiles, therefore, Jones
establishes that a bailee has a sufficient interest to bring
a trespass-based Fourth Amendment challenge.
as in Jones, Moreno claims that she was a bailee of
the searched vehicle. The basic elements of a bailment are
“(1) the delivery of personal property from one person
to another for a specific purpose, (2) the acceptance by the
transferee of such delivery, (3) an express or implied
agreement that the purpose will be fulfilled, and (4) an
understanding that the property will be returned to the
transferor or dealt with as the transferor directs.”
State v. Johnson, 326 P.3d 361, 364 (Idaho Ct. App.
2014). Construing all facts in the light most favorable to
Moreno, as we must, there is sufficient evidence to conclude
that the Blazer was (1) delivered to Moreno by the bailor,
Casey Casper; (2) Moreno accepted delivery; (3) there was an
agreement between Moreno and Casper that the purpose for
Moreno having the vehicle was for her to use and take care of
the car as if it were her own until Mr. Casper was released
from jail; (4) the understanding was that Moreno would
return, or Casper would retrieve, the Blazer upon his
release. Accordingly, the court concludes that Moreno has
produced sufficient evidence of a property interest in the
Blazer-that of bailee.
argues that Plaintiff cannot demonstrate that the government
trespassed against her when it placed the GPS device on the
Blazer, because the officers installed the GPS tracker on a
day when Moreno had loaned the car to Dalley. The Court
disagrees. There is no evidence that Casper knew of or
authorized Dalley's use of the vehicle. The Court must
therefore conclude for purposes of summary judgment that
Dalley assumed nothing more than the rights as a gratuitous
sub-bailee of the Blazer, making Moreno a sub-bailor. This
sub-bailment would not extinguish Moreno's rights and
obligations under the original bailment with Casey-including
the common law right to sue for a trespass occurring during
the term of her bailment and, presumably, a derivative
trespass-based Fourth Amendment search claim. See 8A
Am. Jur. 2d Bailments § 125; 8A Am. Jur. 2d Bailment
§ 166, pp. 685-686 (2009).
had additional rights as sub-bailor to Dalley. Under common
law, gratuitous bailors are deemed to retain
“constructive possession” of chattel held by the
bailee, in the sense that they have an immediate right to
retake actual possession. As a gratuitous sub-bailor to Dalley,
therefore, Moreno retained constructive possession of the
Blazer at the moment of the trespass. Constructive possession
is sufficient under common law to support a trespass action.
See 75 Am. Jur. 2d Trespass § 14. Furthermore,
as evidenced by Jones, an individual need not be in
actual possession of the vehicle at the time that
the trespass occurs, so long as she has a possessory interest
at the time of the search. In Jones, agents
installed the GPS tracking device on the undercarriage of the
Jeep while it was parked in a public lot, out of Jones'
construing the facts in the light most favorable to
Plaintiff, the Court concludes that Moreno held the requisite
possessory interest in the Blazer-as bailee and sub-bailor-at
the moment of trespass. Furthermore, the trespass was
conjoined with the subsequent use of the GPS tracker to
monitor the Blazer's location while Moreno was a
passenger of the vehicle. Accordingly, the Court concludes
that Moreno has established a material dispute of fact as to
whether the challenged GPS search violated her Fourth
Whether the Right Was Clearly Established
established that the defendant officers violated Moreno's
Fourth Amendment rights when they conducted the warrantless
GPS search of the Blazer, the Court must evaluate whether
that right was clearly established at the time of the
question, the “clearly established federal law”
which the officers were bound to follow included the
Jones decision, which was issued over a year before
the events at issue here. At the time of the challenged
search, therefore, the Supreme Court had clearly established
that the “the Government's installation of a GPS
device on a target's vehicle, and its use of that device
to monitor the vehicle's movements, constitutes a
‘search'” within the meaning of the Fourth
Amendment. Jones, 565 U.S. at 404.
the operative facts in Jones closely mirror those
present here. This case, as Jones, involves the: (1)
physical installation of a GPS tracker; (2) on a vehicle; (3)
while the vehicle is parked in a public place; and (4)
subsequent use of that device; (5) to monitor the movements
of the vehicle's bailee. The key facts distinguishing
Jones from the present case are (1) that the
officers committed a trespass in installing the GPS tracker,
(2) that the installation occurred, however, on a day when
the vehicle was in the possession of a third party, and (3)
that Moreno was not the exclusive user of the vehicle.
issue of qualified immunity therefore boils down to the
following question: was Moreno's property interest in the
Blazer sufficiently distinguishable from that presented in
Jones such that a reasonable officer could
mistakenly conclude that the GPS tracker's installation
would not violate her Fourth Amendment rights? ...