Free Brief in Support of Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cv-01275-OES-PAC ______________________________________________________________________________ CRAIG D. SYRIE, Plaintiff, v. MAYOR ED TAUER, COUNTY, CITY COMMISSIONERS ­ JOHN AND JANE DOES, AURORA POLICE CHIEF ­ JOHN AND JANE DOE SERGEANT GRAHAM, OFFICER HIRTLE, OFFICER ZIUS, and OFFICER SLOAN, Defendants. ______________________________________________________________________________ BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________

Defendants, by their attorney, Julia A. Bannon, and pursuant to L. R. Colo. 7.1, hereby submit their Brief in Support of Motion for Summary Judgment.

I. PROCEDURAL BACKGROUND Plaintiff is a pro se prisoner currently incarcerated in the Trinidad Correctional Facility. Plaintiff filed an Amended Complaint on July 22, 2004, alleging three claims for relief against the individual officers, all relating to an alleged illegal search, and one claim captioned "[i]nadequate training, misconduct by City official" against the Mayor of Aurora and Chief of

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Police. The Claims against the Mayor and Chief of Police can only be analyzed as official capacity claims because there is no allegation of personal participation by either of these individuals.

II. STATEMENT OF UNDISPUTED MATERIAL FACTS 1. On November 3, 2003, Plaintiff was on parole. Exhibit "A," Plaintiff's

Deposition, p. 9, l. 24 ­ p. 10, l. 2. Plaintiff had "absconded," or stopped reporting as required by his parole, and there was a warrant for his arrest. Id. at p. 9, l. 25 ­ p. 10, l. 2; p. 15, l. 20 ­ p. 16, l. 10. 2. On that date Plaintiff was living with his girlfriend, Jolene Blair (hereinafter

"Blair"), at her apartment. Id. at p. 30, l. 5 ­ 11. 3. On November 3, 2003, the Aurora Police Department responded to information

that possible drug activity was taking place at Ms. Blair's apartment. Id. at p. 8, l. 1 ­ 18 and see Exhibit "B." 4. Blair gave the Aurora Police Department officers permission to enter the

apartment. Id., l. 22 ­ 24, and Exhibit "B." 5. Blair subsequently gave officers permission to search the back of the apartment.

Id. at p. 14, l. 2 ­ 12, and Exhibit "B." 6. Plaintiff was sitting on a couch in the living room during the search. Id. at p. 12,

l. 6. Plaintiff began to sweat profusely. Id. at p. 23, l. 15 ­ 16. 7. Plaintiff consented to be searched and was lawfully arrested when officers found

marijuana and crack cocaine on his person. Id. at p. 29, l. 15 ­ 18; p. 28, l. 5 ­ 20.

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8.

Immediately after Plaintiff's arrest, officers discovered a stolen shotgun hidden

behind the couch he had been sitting on. Id. at p. 7, l. 14 ­ 20; p. 11, l. 2 ­ 4 and Exhibit "B." 9. The drugs found in the back room and the gun were suppressed by the trial court.

People v. Syrie, 101 P.3d 219, 221 (Colo. 2004). The drugs found on Plaintiff's person were not suppressed. Id. 10. Plaintiff plead guilty to drug charges and received a sentence of 17 months. See

Exhibit "C." He is currently serving that sentence. See Exhibit "A" at p. 17, l. 1 ­ 24.

III. ARGUMENT A. THE INDIVIDUAL OFFICERS ARE ENTITLED TO QUALIFIED IMMUNITY. Individual officers are entitled to qualified immunity if their actions do not violate a clearly established constitutional right of which a reasonably competent officer would have known. Denver Justice and Peace Committee, Inc. v. City of Golden, 405 F.3d 923, 928 (10th Cir. 2005). As discussed below, Plaintiff cannot establish a constitutional violation and thus the inquiry ends there. Id. Assuming, arguendo, that Plaintiff can establish a technical violation, the appeal by the prosecution demonstrates the prosecutor's belief that there was no Fourth Amendment violation and to hold the Defendant officers to a higher standard would be unjust. B. PLAINTIFF'S CLAIMS REGARDING THE DRUGS ARE BARRED BECAUSE DEFENDANTS HAD CONSENT TO SEARCH THE BACK ROOMS. Plaintiff's first three claims allege an unconstitutional search. Claim Number One is

entitled "No Search Warrent" (sic); Claim Number Two, "No Probable Cause," and Claim Number Three "No Written Consent or Probable Cause".

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The officers stated in their reports and will testify, if necessary, that they obtained verbal consent from Ms. Blair to search the apartment for drugs. Ms. Blair has apparently since recanted her statements to the officers. For purposes of this Motion only, the Defendants rely only on the undisputed facts as testified to by Plaintiff at his recent deposition. Plaintiff admitted in his deposition that his girlfriend, Ms. Blair, the lessee of the apartment, gave officers consent to search the back room where the drugs were found. See Exhibit "A," p. 14, ll. 2 ­ 12. Although Plaintiff initially stated that Ms. Blair had given officers consent to search the back room for children, he later corrected himself to state that the children were already in the front room when Ms. Blair consented to the search of the back room. See Exhibit "A," p. 7, l. 11 ­ p. 14, l. 12. Although written consent may be the best evidence, no court has ever held that validly obtained verbal consent is not acceptable pursuant to the Fourth Amendment. Schneckloth Conservation Center Superintendent v. Bustamonte, 412 U.S. 218, 222-249 (1973). In the instant case, Ms. Blair's verbal consent was sufficient to give Defendants the right to search. Id. At a minimum, under these facts, a reasonably competent officer would have believed that he had valid verbal consent to search the back room.

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C.

THE GUN WAS DISCOVERED PURSUANT TO A VALID SEARCH INCIDENT TO ARREST. The Colorado Supreme Court affirmed the trial court's suppression of the gun in People v.

Syrie, 101 P.3d 219, 221 (Colo. 2004). The Colorado Supreme Court pointed out that its decision was based upon the prosecutor's failure to raise the issue of search incident to arrest at the trial court level. Id. at 223. None of the Defendants in this case were parties to the criminal case, nor was the issue of search incident to arrest ever resolved in the criminal case. Thus, neither claim nor issue preclusion applied and the Defendants are free to raise the issue here. San Remo Hotel, L.P. v. City & County of San Francisco, 125 S. Ct. 2491, 2500-2501 (2005). A valid search incident to arrest requires that the search be contemporaneous with or immediately following arrest and limited to the general area surrounding the arrestee. Syrie at 222. The officers involved in the arrest have stated that the gun was discovered within minutes after Plaintiff's arrest and that he was approximately six feet from the couch at the time of his arrest. This is a valid search incident to arrest. People v. Clouse, 859 P.2d 228, 234 (Colo. App. 1992). D. PLAINTIFF HAS NOT ESTABLISHED A CUSTOM OR POLICY ON THE PART OF THE CITY DEFENDANTS. Plaintiff does not state in what capacity he sues Mayor Ed Tauer or the Aurora Police Chief, but a review of the Amended Complaint reveals that they are sued in their official capacities only. See Amended Complaint, p. 6 ­ 8. These claims are the same as a suit against the City.

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As stated above, there is no underlying constitutional violation. Thus, there can be no liability on the part of the City. Furthermore, even if the Court finds an underlying violation, there is not even a scintilla of evidence that the Aurora Police Department has a custom or policy of illegal searches. Monell v. Department of Social Services, 436 U.S. 658, 691 (1978). For the above stated reasons, the Plaintiff's claims must be dismissed. Dated: November 30, 2005. Respectfully submitted,

s/ Julia A. Bannon___________________ Julia A. Bannon Office of the City Attorney Aurora Municipal Center, Suite 5300 15151 East Alameda Parkway Aurora, Colorado 80012 Telephone: (303) 739-7030 Facsimile: (303) 739-7042 E-mail: [email protected] ATTORNEY FOR DEFENDANT CITY OF AURORA

CERTIFICATE OF SERVICE I hereby certify that on November 30, 2005, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system and I hereby certify that I have mailed the Brief in Support of Motion for Summary Judgment to the following non CM/ECF participant: Craig D. Syrie Reg. No. 64393 Trinidad Correctional Facility P. O. Box 2000 Trinidad, CO 81082 s/ Cindy Selden
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