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Loftis v. Duroy

United States District Court, W.D. Oklahoma

November 3, 2017

THOMAS CARL DUROY, in his Individual capacity, Defendant.



         This matter comes before the Court on cross-motions for summary judgment. (Doc. Nos. 60 and 75).[1] The Court has considered the parties' submissions and finds as follows.

         This 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.

         Summary 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 party. Id.

         As 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).

         Generally, 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 Duroy.

         A 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).

         Inherent 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.

         Plaintiff 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 package.
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 Facility.

         Plaintiff alleges the following deficiencies with Detective Duroy's affidavit:

         1. The 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 ...

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