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Moreno v. State

United States District Court, D. Idaho

March 31, 2017

STATE OF IDAHO, IDAHO STATE POLICE, RYAN BLACKHAWK, individually and in his capacity as a police officer for Idaho State Police; PAUL OLSEN, individually and in his capacity as a police officer for Idaho State Police; and LT. JOHN KEMPF, individually and in his capacity as Idaho State Police supervisor of Blackhawk and Olsen, Defendants.


          B. Lynn Winmill, Chief Judge


         Pending 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 (Dkt. 42).


         1. Factual Background

         Plaintiff 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.

         On 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.

         The 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.

         On 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.

         Detective 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.

         Olsen 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. Id.

         2. Litigation Background

         Plaintiff 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 bodily integrity.

         Defendants 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.


         1. Motion for Summary Judgment.

         Summary 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.

         The 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. 1988).

         The 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).

         This 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. at 324.

         2. Qualified Immunity

         The 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).

         In 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).

         To 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 id.

         The 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).


         1. Claims Against State of Idaho, ISP, and Officers in their Official Capacity

         Defendants 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).[1] Furthermore, Eleventh Amendment sovereign immunity bars private § 1983 and state law damages claims[2] 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.

         Accordingly, 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.

         2. Count 1 - Unreasonable Search (§ 1983)

         Plaintiff's 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.

         A. Whether a Fourth Amendment Search Occurred

         The 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).

         To claim Fourth Amendment protection, an individual must demonstrate that she personally has a connection to the place or thing being searched.[3] 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 Cir. 2015).

         In 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 Amendment.

         That 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.

         Here, 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.

         Defendant 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).

         Moreno had additional rights as sub-bailor to Dalley. Under common law, gratuitous bailors are deemed to retain “constructive possession”[4] of chattel held by the bailee, in the sense that they have an immediate right to retake actual possession.[5] 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' actual possession.

         Thus, 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 Amendment rights.

         B. Whether the Right Was Clearly Established

         Having 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 incident.

         Without 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.

         Furthermore, 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.

         The 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? ...

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