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Bickford v. Hensley

United States District Court, N.D. Oklahoma

September 20, 2019

EMMITT BICKFORD, Plaintiff,
v.
RYAN HENSLEY, in his Individual Capacity; and OSAGE COUNTY SHERIFF, in his Official Capacity, Defendants.

          OPINION AND ORDER

          TERENCE C. KERN UNITED STATES DISTRICT JUDGE.

         Before the Court are (1) Defendant Osage County Sheriff’s Motion for Summary Judgment (Doc. 22), (2) Defendant Ryan Hensley’s Motion for Summary Judgment (Doc. 24) and (3) Plaintiff’s Opposed Motion to Supplement Evidentiary Material (Doc. 46). For reasons discussed below, Defendant Osage County Sheriff’s and Defendant Ryan Hensley’s Motions for Summary Judgment are GRANTED. Plaintiff’s Opposed Motion to Supplement Evidentiary Material is DENIED.

         I. Factual Background

         Defendants argue that in 2014 and 2015, Osage County law enforcement noticed an increased amount of high-grade marijuana being shipped and distributed into Osage County, particularly Pawhuska, Oklahoma. (Doc. 22, pg. 9; Doc. 24, pg. 6; Doc. 25-2, pg. 6.) The Osage County Sheriff’s Office launched an investigation, in which Defendant Deputy Ryan Hensley took part. (Doc. 22, pg. 9, pg. 24, pg. 6.) As part of this investigation Defendant Hensley identified Jache Willard, a former resident of Pawhuska who now lived in California, as the supplier. Willard also supplied marijuana to Dusty Hendren. (Doc. 24, pg. 7.) It is undisputed that, during the course of his investigation, Defendant Hensley reviewed a Facebook Messenger conversation between Willard and Hendren. That conversation included, in pertinent part, the following exchange:

HENDREN: Gave Chaz a small dab the other night n he got so high he went into ninja paranoid mode
WILLARD: Lol next batch will be better to promise lol
HENDREN: He done said he ain’t fucking with that shit he more of a pinch hitter now
WILLARD: Lol Chats great

(Doc. 22-5, pg. 5.)

         Defendant Hensley appears to concede that this conversation was the only evidence he had that supported probable cause to arrest Plaintiff Emmitt Bickford, colloquially known as Chaz. (Doc. 1, pg. 10; Doc. 24, pg. 16.) Based on this conversation, Defendant Hensley believed that Plaintiff had engaged in an overt act in furtherance of the conspiracy and therefore became a co-conspirator, subject to the full extent of conspiracy liability. (Doc. 25-2, pg. 8.) Accordingly, Defendant Hensley prepared a “generalized affidavit”-the same affidavit used to support probable cause for arrest warrants for all members of the conspiracy-naming Plaintiff as the defendant. (Doc. 25-2, pg. 12, 20.) Defendant Hensley submitted the affidavit for review, first to the Chief Criminal Deputy, and then to District Attorney Rex Duncan. (Doc. 22, pg. 11; Doc. 22-4, pg. 2; Doc. 25-2, pg. 12.)

         On March 22, 2016, either Defendant Hensley or District Attorney Rex Duncan then used this affidavit to seek an arrest warrant for Plaintiff. (Doc. 22, pg. 11; Doc. 22-4, pg. 2; Doc. 22-6, Doc. 25-2, pg. 12.) The affidavit listed the following as the Offense(s) Committed/Anticipated Charge(s):

1. 63 O.S. § 2-408: Any person offers, solicits, attempts, endeavors or Conspires (sic) to commit any offense under Uniform Controlled Dangerous Substance Act (63 O.S. § 2-101 et. Seq.)[1]
2. 21 O.S. § 1958: Communicates with, stores data in, or retrieve (sic) data from a computer system for the purpose of violating provisions of the Oklahoma Statutes.

         The affidavit also listed the facts and circumstances that support probable cause as follows:

1. Over the last year, your affiant has been investigating a marijuana distribution network operated by a distributor named Jache Willard. Jache Willard has possessed at least one hundred pounds of marijuana on one occasion during this investigation. Jache Willard often times uses Facebook Messenger to communicate with drug dealers selling marijuana for him to facilitate drug transactions. Jache Willard often times discusses different strains of marijuana for sale, marijuana prices, and shipping details with Facebook Messenger.
2. During the course of this investigation your affiant has identified lower level dealers, distributors, and users associated with this organization and the details are as follows.
3. Jache Willard has lived in both California and Las Vegas, Nevada, and regularly mails marijuana through the United States Post Office to marijuana dealers in Oklahoma and Arkansas.
4. Jache Willard often times “fronts” marijuana, meaning sends marijuana without prior payment. Willard mails marijuana in the form of ounce packages up to multiple pound packages to drug dealers within this conspiracy, and then receives payment for the marijuana electronically through Money Gram, Western Union, and Arvest Bank.
5. The above named defendant assisted this conspiracy by using a computer and/or a cell phone to facilitate marijuana transactions in at least one or more of the following ways: Facebook Messenger, text messaging, or voice calls.
6. Evidence suggests the above named defendant conspired with Jache Willard, and/or other co-conspirators in the distribution network, to purchase high grade marijuana shipped from California or Las Vegas, Nevada.
7. The above named defendant also supplied money as payment to for (sic) the marijuana to directly to (sic) Jache Willard, or another co-conspirator in the distribution network, which allowed the distribution network to stay operational.
8. The above named defendant committed one or more of the following overt acts which includes purchasing marijuana, transporting marijuana, receiving marijuana through USPS mail, electronically transferring drug money, using a computer to send messages to arrange marijuana transactions, opening bank accounts allowing money to be covertly transferred, or distributing marijuana.
9. One or more of the overt acts within this conspiracy took place within the jurisdictional boundaries of ...

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