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Pickering v. DeFrance

United States District Court, D. Connecticut

September 30, 2016

LEAL R. PICKERING and WANDA LEE SAMPEL, Plaintiffs,
v.
AUGUST DeFRANCE, et al., Defendants.

          MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 38]

          HON. VANESSA L. BRYANT UNITED STATES DISTRICT JUDGE

         Plaintiffs Leal R. Pickering (“Pickering”) and Wanda Lee Sampel (“Sampel”) allege violations of 42 U.S.C. §§ 1983 and 1988, the Fourth and Fourteenth Amendments, and Connecticut law arising from a vehicle stop, search, and arrest on September 23, 2012. Currently pending before the Court is Defendant's Motion for Summary Judgment as to all claims. For the reasons that follow, the Defendant's Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART.

         I. Factual Background

         The following facts are based on the evidence cited in Defendants' Local Rule 56(a)(1) Statement of Facts [Dkt. No. 38-2 (“Defendants' Ex.”)] and Plaintiffs' Local Rule 56(a)(2) Statement of Facts [Dkt. No. 41-2 (“Plaintiffs' Ex.”)].

         At all relevant times, plaintiffs Leal Pickering and Wanda Sampel resided at 44 Rome Avenue, Middletown, Connecticut. Defendants' Ex. A (Pickering Deposition Transcript) (“Pickering Tr.”) at 15; Defendants' B (Sampel Deposition Transcript) (“Sampel Tr.”) at 7. At all relevant times, Defendants Officers August DeFrance, Robert Kraeger, Louis Julia, James Remotti, and Daniel Schreiner were employed and on duty as patrol officers in the Middletown Police Department, and Defendant Sergeant Lukanik was employed and on duty as a sergeant in that Department. Defendants' Ex. C (DeFrance Deposition Transcript) (“DeFrance Tr.”) at 4-5; Defendants' Ex. D (Kraeger Deposition Transcript) (“Kraeger Tr.”) at 4-5; Defendants' Ex. E (Julia Deposition Transcript) (“Julia Tr.”) at 5; Defendants' Ex. F (Remotti Deposition Transcript) (“Remotti Tr.”) at 4-5; Defendants' Ex. G (Schreiner Deposition Transcript) (“Schreiner Tr.”) at 4-5.

         On September 22, 2012, Officer Kraeger received an anonymous tip that a female named Wanda Sampel and a man named “Lee” were selling heroin out of their residence at 44 Rome Avenue in Middletown, Connecticut. Defendants' Ex. C (DeFrance Tr.) at 13; Defendants' Ex. D (Kraeger Tr.) at 19-24. As a result of the tip, Officer Kraeger researched Ms. Sampel in the Middletown Police Department's computer system and found records of a past narcotics arrest and an address of 44 Rome Avenue. Defendants' Ex. D (Kraeger Tr.) at 54-55; Defendants' Ex. K (Sampel Criminal Case Detail) at 1. The arrest was for possession of less than four ounces of marijuana. Defendants' Ex. K (Criminal Case Detail) at 1. Officer Kraeger relayed this information to Officer DeFrance and Sergeant Lukanik. Defendants' Ex. C (DeFrance Tr.) at 41-42.

         On September 23, 2012, at approximately 9:15 a.m., Plaintiffs and their minor daughter exited 44 Rome Avenue and entered a Dodge Caravan owned by Mr. Pickering. Defendants' Ex. C (DeFrance Tr.) at 43-44. Ms. Sampel drove the vehicle down Rome Avenue and made two turns before Officer DeFrance pulled them over. Id. at 37. Defendants allege Officer DeFrance initiated the vehicle stop because he observed a handicap placard on Plaintiffs' rearview mirror, obstructing Ms. Sampel's view, and because Plaintiffs' center brake light was broken. Id. at 18, 21-22; Defendants' Ex. I (Incident Detail Report). Plaintiffs allege Officer DeFrance did not mention the handicap placard as an initial reason for the stop, but instead cited Plaintiffs' broken center brake light and a broken windshield wiper. Plaintiffs' Ex. 3 (Sampel Tr.) at 32.

         Officer DeFrance asked Ms. Sampel for her license and registration, and determined that Ms. Sampel's driver's license was suspended. Defendants' Ex. C (DeFrance Tr.) at 36. Officer DeFrance then called for backup officers. Id. at 38-39; Defendants' Ex. D (Kraeger Tr.) at 32-33. Officers Kraeger, Remotti, Julia and Schreiner arrived at the scene in response to the call. Defendants' Ex. C (DeFrance Tr.) at 40.

         Officer Kraeger testified he observed through the passenger-side window a clear plastic bag containing 42.2 grams of off-white powder in a cup holder. Defendants' Ex. D (Kraeger Tr.) at 35-36; Defendants' Ex. C (DeFrance Tr.) at 39 (same). Plaintiff Pickering submitted an affidavit to the contrary, asserting it would have been impossible to see the plastic bag from where Officer Kraeger was purportedly standing. [Dkt. No. 48 (Pickering Affidavit) at 2]. Plaintiff Sampel submitted an affidavit explaining Officer Kraeger began searching the vehicle without a warrant or Plaintiffs' consent, and found the plastic bag during his search. [Dkt. No. 47 (Sampel Affidavit) at 3].

         Officer Kraeger identified the contents of the bag as consistent with heroin. Defendants' Ex. D (Kraeger Tr.) at 35. An officer asked Ms. Sampel what was in the bag, and she stated it was Herbalife, her weight loss supplement. Plaintiffs' Ex. 5 (DeFrance Tr.) at 52. Officer Kraeger conducted a field test of the powder in the plastic bag, which he and Officer DeFrance observed showed a positive result indicating heroin. Defendants' Ex. C (DeFrance Tr.) at 51-54; Defendants' Ex. D (Kraeger Tr.) at 46-47, 58-60. Plaintiffs did not observe the result of the test. Defendants' Ex. B (Sampel Tr.) at 52-53. Defendants continued to search the vehicle before conducting a second test of the powder in the plastic bag. Plaintiffs' Ex. 3 (Sampel Tr.) at 53, 55.

         Sergeant Lukanik, who has extensive experience with drug field tests, performed a second field test of the powder. Defendants' Ex. D (Kraeger Tr.) at 46-47, 58-60; Defendants' Ex. H (Lukanik Tr.) at 46. Officers Kraeger and DeFrance and Sergeant Lukanik observed that the second field test resulted in a color change indicative of heroin. Defendants' Ex. H (Lukanik Tr.) at 46. Plaintiff Sampel testified she saw that the second field test color was clear, suggesting no heroin presence, but also testified she has no experience or training in drug field tests. Defendants' Ex. B (Sampel Tr.) at 53-56.

         Defendants arrested Ms. Sampel and Mr. Pickering after conducting the field tests. Defendants' Ex. C (DeFrance Tr.) at 51, 61; Defendants' Ex. H (Lukanik Tr.) at 37-38; Defendants' Ex. I (Incident Detail Report) at 4. Once at the police station, Officer Kraeger tested the substance a third time, in the presence of Sergeant Lukanik, which again tested positive for heroin. Defendants' Ex. H (Lukanik Tr.) at 38, 46.

         Ms. Sampel was charged with possession of narcotics, possession with intent to sell, possession within a restricted zone, risk of injury to a minor child, driving under a suspended license, driving with an improper signal lamp, and driving with a defective windshield wiper. Defendants' Ex. I (Incident Detail Report) at 3. Mr. Pickering was charged with possession of narcotics, possession with intent to sell, possession within a restricted zone, risk of injury to a minor child. Id. at 3. Ms. Sampel posted bond the following day and was released from police custody. Defendants' Ex. B (Sampel Tr.) at 60. On November 19, 2012, the Connecticut Division of Scientific Services tested the powder in the plastic bag and determined it did not contain a controlled substance. Plaintiffs' Ex. 14 (Laboratory Controlled Substance Report) at 1.

         II. Legal Standard

         Summary judgment should be granted “if the movant shows that 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). The moving party bears the burden of “‘showing' - that is pointing out to the district court - that there is an absence of evidence to support the nonmoving party's case.” PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002); see also Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010). “In determining whether that burden has been met, the court is required to resolve all ambiguities and credit all factual inferences that could be drawn in favor of the party against whom summary judgment is sought.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). “If there is any evidence in the record that could reasonably support a jury's verdict for the nonmoving party, summary judgment must be denied.” Am. Home Assurance Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315-16 (2d Cir. 2006) (internal quotation marks and citation omitted).

         If the moving party demonstrates the absence of any genuine issue of material fact, the burden shifts to the non-moving party to present admissible evidence in support of [its] allegations. Burt Rigid Box, Inc. v. Travelers Prop. Cas. Corp., 302 F.3d 83, 91 (2d Cir. 2001); Welch-Rubin v. Sandals Corp., No.3:03cv481, 2004 WL 2472280, at *1 (D. Conn. Oct. 20, 2004) (internal quotation marks and citations omitted); Martinez v. State of Connecticut, No. 3:09cv1341 (VLB), 2011 WL 4396704 at *6 (D. Conn. Sept. 21, 2011). A party cannot defeat summary judgment by merely “relying on the allegations in his pleading, or on conclusory statements, or on mere assertions that affidavits supporting the motion are not credible.” Welch-Rubin, 2004 WL 2472280 at *1; Martinez, 2011 WL 4396704 at *6. If the non-moving party asserts no evidence upon which a jury could properly find in its favor, summary judgment is appropriate. Fincher v. Depository Trust and Clearance Co., 604 F.3d 712 (2d Cir. 2010).

         III. Discussion

         A. The vehicle stop

         Counts one and two of Plaintiffs' Complaint allege that Defendants unlawfully stopped Plaintiffs' vehicle without a “reasonable articulated reason.” [Dkt. No. 1-3 (“Complaint”) at 4 (Count 1) (unlawful stop as to Ms. Sampel); Id. at 7 (Count 2) (unlawful stop as to Mr. Pickering)]; U.S. v. Oates, 514 F.Supp.2d 221, 225 (D. Conn. 2007) (stating a vehicle stop must be justified by “probable cause or a reasonable suspicion, based on specific and articulable facts of unlawful conduct”).

         The Fourth Amendment “prohibits unreasonable searches and seizures by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest.” U.S. v. Arvizu, 534 U.S. 266, 273 (2002) (citing Terry v. Ohio, 392 U.S. 1, 9 (1968). “Because the balance between the public interest and the individual's right to personal security tilts in favor of a standard less than probable cause in such cases, the Fourth Amendment is satisfied if the officer's action is supported by reasonable suspicion to believe that criminal activity may be afoot. Id. Reasonable suspicion exists to make an investigatory vehicle stop when the “totality of the circumstances” indicates “the detaining officer has a particularized and objective basis for suspecting legal wrongdoing.” Id. The officer may have reasonable suspicion to conduct an investigatory stop where each act or circumstance observed is “perhaps innocent in itself, ” but together they “warrant[] further investigation.” Id. at 274. Courts must not “divide and conquer” the reasonable suspicion analysis; reasonable suspicion may exist based on the totality of the circumstances even where each individual circumstance is apparently innocent. Id. at 273-74.

         Here, Officer DeFrance testified he stopped Plaintiffs' vehicle because Plaintiff Pickering's handicap placard was hanging from the vehicle's rearview mirror at the time of the stop and because the vehicle's center brake light was inoperable.[1] Mot. for SJ at 8-9; Defendants' Ex. C (DeFrance Tr.) at 18 (“I stopped the vehicle because the . . . center brake light was out. And the large handicapped sticker on the rear-view mirror obstructs the driver's view.”); Defendants' Ex. I (Incident Detail Report) at 5 (“I observed [Plaintiffs' vehicle] on Rome Ave approaching Spring St. The center brake light was out and there was a large handicap parking pass hanging on the rear view mirror, obstructing the operator's view.”). The Court examines Defendants' reasons in turn and then evaluates the totality of the circumstances as required under Arvizu, 534 U.S. at 273-74.

         i. The center brake light

         Connecticut law requires motor vehicles to “be equipped with two or more stop lamps.” C.G.S.A. § 14-96(e)(a). Plaintiffs' vehicle had two working brake lights at the time of the vehicle stop. Plaintiffs' Ex. 5 (DeFrance Tr.) at 31-32 (“So the two brake lights on the side were operable? A. Yes.”). Plaintiffs have raised and the Defendants do not contest that the brake lights were in compliance with the state law and therefore the broken center brake light did not constitute “reasonable suspicion to believe that criminal activity may be afoot.” Arvizu, 534 U.S. at 273-74. However, in determining the propriety of the stop, the Court must consider the totality of the circumstances. Id. at 273-74. Accordingly, the Court next turns to Defendants' allegation that Officer DeFrance also stopped Plaintiffs' vehicle because Ms. Sampel was driving with an obstructed view.

         ii. The handicap placard

         Connecticut law states that “[n]o article, device, sticker or ornament shall be attached or affixed to or hung on or in any motor vehicle in such a manner or location as to interfere with the operator's unobstructed view of the highway or to distract the attention of the operator.” C.G.S.A. § 14-99(f)(c). The mere fact that an officer “saw the [object] hanging from the rearview mirror and mistakenly believed that 14-99(f) makes it an infraction for a car to be driven with any ...


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