United States District Court, W.D. Oklahoma
L. RUSSELL, UNITED STATES DISTRICT JUDGE
matter comes before the Court on cross-motions for summary
judgment. (Doc. Nos. 60 and 75). The Court has considered the
parties' submissions and finds as follows.
case arises out of events in November 2011, in Kay County,
Oklahoma. At the time Plaintiff Loftis, an attorney, was
representing a criminal defendant, Terome Porter, on a state
murder charge. Kayla Woods, a friend of Mr. Porter, contacted
Mr. Loftis for purposes of passing along certain envelopes to
Mr. Porter, who was being held in the Kay County Detention
Center. On November 23, 2011, in the late afternoon, Kayla
Woods brought three envelopes to Plaintiff's office. She
had received the envelopes from a woman whose identity she
did not know, but who was known to Terome Porter. When Kayla
Woods left the envelopes with Mr. Loftis, he noticed white
powder falling from one envelope and that the envelopes
smelled of marijuana. He contacted Gale McArthur, who
practiced law from the same office at that time, about what
to do with the envelopes. The two opened the envelopes,
believing they contained drugs, and discovered what they
believed were tobacco leaves, marijuana, and a white powder.
Thereafter they contacted the police, including the District
Attorney and a District Judge. In February 2012, Defendant
Duroy began investigating the introduction of contraband into
the Kay County Detention Center. To that end, he executed an
affidavit in support of a search warrant to search the
contents of Plaintiff's cell phone. This affidavit forms
the basis of this litigation. Plaintiff contends that the
February 28, 2012 affidavit of Defendant Duroy in support of
the search warrant for his telephone violated his rights
under the Fourth and Fourteenth Amendments, because it
contained materially false or misleading statements or
omissions. Both Plaintiff and Defendant seek summary
judgment, Defendant in part, because he contends he is
entitled to qualified immunity.
judgment is warranted under Federal Rule of Civil Procedure
56(c) when “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986);
Concrete Works, Inc. v. City & County of Denver,
36 F.3d 1513, 1517 (10th Cir.1994). A disputed fact is
“material” if under the relevant substantive law
it is essential to proper disposition of the claim.
Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32
(10th Cir.2001). Only disputes over material facts can create
a genuine issue for trial and preclude summary judgment.
Faustin v. City & County of Denver, 423 F.3d
1192, 1198 (10th Cir.2005). An issue is “genuine”
if the evidence is such that it might lead a reasonable jury
to return a verdict for the nonmoving party. Allen
v. Muskogee, 119 F.3d 837, 839 (10th Cir.1997). When
reviewing a motion for summary judgment, a court must view
the evidence in the light most favorable to the non-moving
noted, Defendant Duroy contends he is entitled to qualified
immunity from civil damages. In Harlow v.
Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396
(1982), the Court held that “government officials
performing discretionary functions generally are shielded
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.” Id. at 818. The issue of qualified
immunity is ordinarily a matter of law for decision by the
judge. See id.; Maestas v. Lujan, 351 F.3d
1001, 1007-08 (10th Cir.2003) (noting that while qualified
immunity is normally a question of law, in exceptional
circumstances, a jury may be called on to determine disputed
historical facts intertwined with the inquiry of whether a
reasonable person in the defendant's position would have
known their conduct violated the law).
once the Defendant asserts qualified immunity as a defense,
the burden shifts to Plaintiff to “show with
particularity facts and law establishing the inference that
defendant violated a constitutional right” and that the
right allegedly violated was “clearly established at
the time of the conduct at issue.” Hollingsworth v.
Hill, 110 F.3d 733, 737- 38 (10th Cir.1997); Bruning
v. Pixler, 949 F.2d 352, 356 (10th Cir.1991)
(“plaintiff must produce facts sufficient to show both
that the defendant's alleged conduct violated the law and
that that law was clearly established when the alleged
violation occurred”). The Supreme Court permits the
lower courts “to exercise their sound discretion in
deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the
circumstances in the particular case at hand.”
Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct.
808, 818, 172 L.Ed.2d 565 (2009). Because the issue of
whether Plaintiff sufficiently alleges violation of clearly
established law is easily addressed, the Court will consider
the second prong before considering whether Plaintiff has
sufficiently alleged a constitutional violation by Defendant
search warrant may issue upon a showing of probable cause
that contraband or evidence is located in the particular
place to be searched. U.S. Const. amend. IV (“no
Warrant shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized”);
see also United States v. Ventresca, 380 U.S. 102,
107 (1965); Illinois v. Gates, 462 U.S. 213, 230
(1983). Probable cause is defined as “a reasonable
ground for belief of guilt ... [which] means less than
evidence which would justify condemnation or conviction
[.]” Brinegar v. United States, 338 U.S. 160,
175 (1949) (internal quotations and citations omitted).
Probable cause to search or seize exists when, under the
totality of the circumstances, “there is a fair
probability that contraband or evidence of a crime will be
found in a particular place.” Illinois v.
Gates, 462 U.S. 213, 238 (1983).
in this language is “the obvious assumption [ ] that
there will be a truthful showing” of facts to support
probable cause, meaning that “the information put forth
is believed or appropriately accepted by the affiant as
true.” Franks v. Delaware, 438 U.S. 154,
164-65, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (quotation
omitted). Under Franks, the Court presumes that the
affidavit supporting a search warrant is valid.
Franks, 438 U.S. at 171-72, 98 S.Ct. 2674. An
affiant seeking a search warrant may not knowingly or
recklessly include false statements in an affidavit, or omit
from it information which would vitiate probable cause.
Puller v. Baca, 781 F.3d 1190, 1197 (10th Cir.
2015). If an affiant does so, the Court measures
“probable cause by (1) removing any false information
from the affidavit, (2) including any omitted material
information, and then (3) inquiring whether the modified
affidavit establishes probable cause for the warrant.”
Id. Where there are no genuine issues of material
fact, a court may make the probable cause determination as a
matter of law. Bruner v. Baker, 506 F.3d 1021, 1028
(10th Cir. 2007). Accordingly, since Franks v.
Delaware, 438 U.S. 154 (1978), it has been clearly
established law that a search or arrest warrant is void if
issued on the basis of an affidavit that includes a false
statement made knowingly and intentionally or with reckless
disregard for the truth and the statement is necessary for a
finding of probable cause.
contends there was no probable cause to support the search
warrant because Tom Duroy's affidavit in support of the
warrant was replete with material misrepresentations and
omissions. By affidavit dated February 28, 2012, Defendant
sought permission to search an Apple i-phone 4 having the
phone number 580-716-5599 that was in the possession of
Charles Scott Loftis. The affidavit stated:
Your affiant, Detective Tom Duroy, is employed by the Ponca
City Police Department and has been so employed since
September of 1992. Your affiant is a commissioned police
officer in the State of Oklahoma.
On 11/30/2011, a Samsung cellular phone was discovered on the
person of Terome Porter, an inmate serving time on a felony
Conviction in the Kay County Detention Facility, by jail
staff. This contraband cell phone was turned over to Kay
County District Attorney Investigator Kyle Hartwig on January
10, 2012 by Harold Hughs, Deputy Director of the Kay County
Detention Facility. Hartwig discovered on the account history
of this contraband phone that there were over 120
communications, both calls and text messages, to and from
phone number 580-716-5599, the cellular phone number of
Charles Scott Loftis. These communications began on October
28, 2011, and ended on November 29, 2011, the day before the
contraband phone was discovered. Charles Scott Loftis was the
Attorney of record, representing Terome Porter at that time.
On 11/23/2011, at approximately 4:50 pm, defendant Kayla Dawn
Woods delivered three envelopes to the office of Charles
Scott Loftis. Loftis told Officer Dana Wilson that Woods
handed these envelopes directly to him and said “can
you give these to Terome?” Also present at Loftis's
office at the time of this delivery was his part time
secretary Myra Deibler. Loftis reported to Ponce City Police
Office Dana Wilson that he became concerned about the
contents of the envelopes when he noticed a white powder like
substance leaking from one of the envelopes. Loftis told
Officer Wilson that he called in his law partner Gale
McArthur to look at the envelopes. McArthur told Loftis that
the envelopes smelled like marijuana. Loftis then told
Officer Wilson that he and McArthur opened the envelopes and
discovered loose tobacco and what appeared to be marijuana.
At this time Loftis called District Attorney Brian Hermanson
and Judge Phillip Ross.
On 2/27/2012 at approximately 1400 hours, Investigator
Hartwig and I conducted an interview with Kayla Dawn Woods.
Woods told us that she received a call from inmate Terome
Porter telling her that a package was going to be delivered
to her. This package contained pictures and papers that
couldn't be delivered to him through jail security, but
could be delivered to him by his attorney Scott Loftis.
Porter directed Woods to contact Loftis and make arrangements
with him for her to deliver the package to Loftis so that he
could deliver it to Porter. Woods told us that she contacted
Loftis on his cell phone and was told to bring the package to
his office at 4:00 pm. Woods told us that she delivered the
package to Loftis at his office at approximately 4:50 pm.
Woods told us that she had previously delivered a package to
Loftis at his office for the purpose of having Loftis deliver
it to Porter in the jail. Woods told us that the first
delivery occurred approximately two to three weeks prior to
the delivery of 11/23/2011 and it was handled in the same
exact way. Woods told us that the first delivery consisted of
one envelope that was just like the three envelopes of the
11/23/2011 delivery. She described all of these envelopes as
white envelopes approximately ½ inch to 1 inch thick.
Woods told us that she believed that all the envelopes
contained marijuana. When asked why she believed this, she
told us that she knew what marijuana smelled like and all
these envelopes smelled of marijuana. Woods also told us that
she knows the first package was delivered to Terome Porter in
jail because he called her and told her he had received the
Woods gave your affiant permission to access and view her
cellular phone history. She told us that her cell phone
number was 580-382-1729. I viewed this history and observed
numerous calls and texts to and from Woods phone,
Porter's contraband phone, and Loftis's cell phone.
On 11/23/2011, these communications occurred prior to the
delivery of the envelopes to Loftis, and after the delivery.
I examined the phone history of Porter's contraband
phone. On 11/23/2011, there were several communications
between Porter's contraband phone, Woods' phone, and
Loftis's phone. These communications occurred before and
after the delivery of the envelopes to Loftis at his office.
Your affiant believes that the cellular phone with phone
number 580-716-5599, belonging to Charles Scott Loftis
contains evidence of the crimes Conspiracy to commit a felony
and Introduction of contraband into the Kay County Detention
alleges the following deficiencies with Detective Duroy's
affidavit references the interview with Kayla Woods by Ponca
City Police Officer Dana Wilson, but fails to note that she
responded in the negative when asked by Wilson if Scott
Loftis has ...