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BROWN v. DISTRICT OF COLUMBIA

June 24, 1986

GEORGE BROWN, JR. and GERALDINE N. BROWN, Plaintiffs
v.
DISTRICT OF COLUMBIA, ROBERT J. BECHTOLDT, JAMES E. KEIFLINE, CARL A. OCCHIPINT,1, SEKETA WILSON, ROBERT A. BENNINGFIELD, 2 ROBERT A. DENYER, and JOHN R. KNOTT, Defendants



The opinion of the court was delivered by: HOGAN

 MEMORANDUM OPINION AND ORDER

 George Brown, Jr. and his wife Geraldine N. Brown allege that on about May 21, 1985, defendants James E. Keifline, Carl Oicchipinti, and Seketa Wilson (members of the District of Columbia's Metropolitan Police Department) conducted an unconstitutional and unfruitful search of the Browns' residence for gambling paraphernalia utilized in "numbers" game operations. *fn3" The plaintiffs allege further that the search was conducted pursuant to an unconstitutional search warrant, issued by the Superior Court of the District of Columbia on the affidavit of defendants Robert J. Bechtoldt, Robert A. Denyer, and John R. Knott (also members of the Metropolitan Police Department). The Browns contend that the unconstitutional, wanton, malicious, and grossly negligent conduct of the six *fn4" police officers resulted, inter alia, in the ransacking of their home, injury to their small dog, and personal humiliation, embarrassment, and mental anguish. Mr. and Mrs. Brown seek a total of $ 350,000 in compensatory and punitive damages from these defendants, and have named the District of Columbia ("the District") as an additional defendant under civil rights and common law employer liability theories.

 There remains for the Court to evaluate only the plaintiffs' Fourth Amendment claim, brought pursuant to 42 U.S.C. § 1983, and pendent gross negligence claim against all of the defendants. The matter is before the Court on the defendants' motion to dismiss, or, in the alternative, for summary judgment, under Rules 12(b)(6) and 56(b) of the Federal Rules of Civil Procedure. After due consideration of the briefs, depositions, and supporting exhibits filed in regard to the plaintiffs' claims, the Court concludes that summary judgment shall be entered in favor of defendant Bennafield on both claims against him. In addition, summary judgment shall be entered on the plaintiffs' Section 1983 claim in favor of defendants Bechtoldt, Denyer, and Knott; and the plaintiffs' gross negligence claim against these defendants shall be dismissed without prejudice. The Court concludes also that the Browns' Section 1983 claim against defendants Keifline, Oicchipinti, and Wilson shall proceed to trial; however, the gross negligence claim against these defendants shall be dismissed without prejudice. Finally, summary judgment shall be entered in favor of the District on the Browns' Section 1983 claim; and the gross negligence claim against this defendant under the plaintiffs' respondeat superior theory, shall be dismissed without prejudice.

 DISCUSSION

 I. Benningfield (i.e., "Bennafield")

 It is clear from the May 14, 1986 deposition of defendant Bennafield that this police officer was involved with neither the police investigation that led to the issuance of the challenged search warrant nor the execution of the challenged search itself. Plaintiff has proffered no contrary evidence. Therefore, the Court concludes, as a matter of law, that summary judgment in favor of this defendant on both the Section 1983 and gross negligence claims is appropriate. The Complaint shall be dismissed in toto with respect to this individual.

 II. The Investigation Officers: Bechtoldt, Denyer, and Knott

 A. 42 U.S.C. § 1983: Fourth Amendment

 1. Motion to Dismiss

 In the amended complaint, Mr. and Mrs. Brown make the following allegations in support of their Fourth Amendment challenge to the conduct of the police officers who sought the search warrant for the Browns' residence:

 
27. That the[se] defendants had no reason to believe that the plaintiffs' premises were part of . . . [an] illegal gambling operation as alleged in the defendants' affidavit in support of the search warrant . . . .
 
* * * *
 
29. That at the time the[se] defendants obtained the search warrant, and prepared the affidavit in support of the search warrant for plaintiffs' residence, the defendants knew or should have known that no form of illegal gambling or gambling activities were conducted from the premises [sic]. . . .
 
30. That the[se] defendants at the time they requested a search warrant and prepared the affidavit in support of the search warrant for the premises . . ., and executed said search warrant on or about May 21, 1985 on said premises, knew or should have known that the plaintiffs were not engaged in any illegal activities.

 The plaintiffs, however, allege no specific facts to support these conclusory allegations of constitutional impropriety.

 The first trio of officers argue that dismissal of the Section 1983 claim is appropriate under Rule 12(b)(6), because, under Hobson v. Wilson, 237 U.S. App. D.C. 219, 737 F.2d 1, 30 (D.C. Cir. 1984), plaintiffs must articulate "specific facts which support their claims of unconstitutional motives." See Memorandum in Support of Amended Motion to Dismiss, or, in the Alternative, for Summary Judgment (" Motion to Dismiss "), at 5. In contesting the motion to dismiss, the Browns refer to the May 14, 1986 deposition of Officer Bechtoldt. The plaintiffs are essentially correct in concluding from the deposition that Bechtoldt based his affidavit in support of the search warrant "on the reading from a pen register which was used to monitor incoming calls to a targeted establishment [ i.e., the Browns' residence]." Opposition to Motion to Dismiss, or, in the Alternative, for Summary Judgment (" Opp."), at 9. They are also correct in concluding both that, "from the register, the officer could not tell by whom the calls were made . . ." and that "Officer Bechtoldt did not conduct any additional investigation . . . in compiling information for his [search warrant] affidavit." Id. See supra note 3. The depositions of defendants Denyer and Knott corroborate these conclusions. Thus, although the plaintiffs failed to do so in the complaint, they have since furnished the Court with some specific factual allegations that the investigative officers had an unconstitutional motive in seeking the search warrant at issue.

 In Hobson, a panel from this Circuit stated as follows: "Plaintiffs who fail [in the complaint] to allege any specific facts to support a claim of unconstitutional motive cannot expect to involve Government actors in protracted discovery and trial. . . . Government defendants might move for dismissal or, alternatively, for summary judgment. Then plaintiffs must produce some factual support for their claim to avert dismissal." 737 F.2d at 30 (emphasis added). In the present case, as noted above, the plaintiffs have, in opposition to the defendants' motion to dismiss, produced "some" evidence of improper motive on the part of the investigative officers. Accordingly, the Court concludes that dismissal is not warranted as to the Browns' Fourth Amendment claim against these defendants for failure to state a claim under Rule 12(b)(6).

 2. Summary Judgment

 However, under Rule 56(b), the Court concludes, as a matter of law, that the Browns have failed to make out a Section 1983 case against these officers. Upon evaluation of the briefs and exhibits filed by both sides with respect to this issue, it is clear that the plaintiffs have failed to meet their burden of proving unconstitutional motive on the part of these defendants in conducting the investigation that led to the issuance of the challenged search warrant.

 It is true that the primary evidence upon which these policemen sought a search warrant for the Browns' residence was the pen register print-out that depicted the forty-five calls dialed from Thornton's phone to that of the Browns. See supra note 3. The plaintiffs argue that a "print out sheet from a pen register . . . [is] insufficient to establish probable cause to support a search warrant, absent any other incriminating evidence against plaintiffs." Supplemental Brief in Opposition to Defendants' Motion to Dismiss or for Summary Judgment (" Supp. Opp."), at 1. However, the plaintiffs have cited no authority to support the proposition that, where police officers seek search warrants primarily on the basis of pen register print-outs, such a procedure violates Fourth Amendment rights.

 A review of the reported decisions of this Circuit has revealed no case on point. The United States Court of Appeals for the Sixth Circuit, in United States v. Algie, has, however, ruled that pen register data alone will not support a Magistrate's determination of probable cause. 721 F.2d 1039, 1043 (6th Cir. 1983). In Algie, the court concluded that the Magistrate had erred in issuing a search warrant for the premises in which an unregistered phone was located, because the only evidence offered in the warrant application's supporting affidavit was that fifteen phone calls had been dialed from a pen registered phone to the unregistered phone within an eleven-day period. Id. The registered phone had been located in an apartment where known bookmakers were conducting their criminal operations. Id.

 The case before the Court is, however, distinguishable from Algie. Here, forty-five calls were dialed from the registered phone to that of the plaintiffs during a fourteen-day period. See supra note 3. In addition, in the supporting affidavit signed under oath by Bechtoldt, Denyer, and Knott, these defendants stated that it is "common knowledge among persons in gambling in the Washington, D.C. area . . ." that, because daily local horse races end at roughly "3:00 P.M., 4:00 P.M., and 5:00 P.M.," a flurry of numbers game phone calls is usually made shortly after these times. [defendants' Exhibit A in Support of Motion to Dismiss.] In addition, these defendants stated in their affidavit that, because the results of the Maryland and District of Columbia Daily Lotteries are announced on local television at "7:30 and 8:40 P.M.," respectively, a flurry of numbers game phone calls is usually made in the District of Columbia shortly after these times. [ Id.] Of the forty-five calls dialed from Thornton's phone to that of the Browns, nineteen calls were placed between 4:09 and 5:58 P.M., depending on the day in question. [ See Pen Register Chart for Browns' Telephone.] Ten of the forty-five calls were dialed to the plaintiffs' phone between 8:29 and 9:18 P.M., depending on the day in question. [ See id.] Thus, twenty-nine of the forty-five recorded calls were dialed within the time frames articulated and sworn to by the defendants in their supporting affidavit as being relevant.

 Furthermore, defendant Knott has stated under oath that, in a numbers operation such as the one he and the other two investigation officers conducted, each of the phone calls will "be [of] a short duration, very short, maybe less than a minute, depending on how many calls they make to that particular location." [Deposition of John R. Knott, p. 33.] Of the forty-five calls in question, forty-three were for a minute or less, one was for three minutes, and one call was for forty-five minutes. In addition, on most of the days covered by the pen register survey, the majority of calls dialed to the Browns' number were made in clusters. For instance, on May 1, 1985, calls were placed from Thornton's phone to the plaintiffs' phone at the following times: "2029-2029; 2029-2030; 2030-2030; 2031-2031; 2034-2035; 2035-2035; 2115-2115." [ See Pen Register Chart for Browns' Telephone.]

 Therefore, the search warrant at issue in this case was not issued by the Superior Court "solely" on the basis of registered dealings, so that Algie is distinguishable. Here, there were three times the number of calls placed to the Browns' phone as were placed to the unregistered phone in Algie. Moreover, the times of the calls to the Browns' phone correspond reasonably to the times when numbers game phone calls are usually made in the District of Columbia. The vast majority of these calls lasted for a minute or less, and most of the calls were made in clusters.

 Given the differences between the Algie case and this one, and in the interest of comity, the Court is not willing to conclude, as a matter of law, that probable cause did not exist to support the issuance of the Superior Court search warrant for the Brown's residence. More importantly, such a determination is not essential to the resolution of this action: what must be resolved is whether or not the investigation officers acted reasonably in seeking the warrant from the Superior Court Judge, based upon the data they had collected with respect to the Browns. *fn5" The Court concludes that the conduct of these officers was reasonable under the circumstances.

 These defendants did not issue the search warrant; they simply sought its issuance from a neutral magistrate. *fn6" In this light, the plaintiffs have demonstrated no evidence of bad faith on the part of these officers in collecting the pen register information during the investigation or in seeking the warrant. In fact, evidence offered by the defendants to date tends to demonstrate their good faith. Each of the officers has stated under oath that he made no false statements in the affidavit submitted in support of the search warrant application. [ See Deposition of John R. Knott, p. 29; Deposition of Robert A. Denyer, p. 29; Deposition of Robert J. Bechtoldt, pp. 13-14.] Moreover, each has stated that he had no prior knowledge of the Browns, and that he had no "ill will" against them when he sought the warrant to search their home. [ See id.; id.; id.] Finally, before the Superior Court Judge issued the warrant at issue, the defendants' application and supporting affidavit for the search warrant were reviewed independently by both a superior officer at the police department and an Assistant United States Attorney. See supra note 3. Thus, there is no evidence on the record that indicates the investigation team tried "to pull the wool" over anyone's eyes in applying for the search warrant.

 In Malley v. Briggs, 475 U.S. 335, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986), the Supreme Court discussed the qualified immunity, under 42 U.S.C. § 1983, that police officers enjoy in an arrest warrant context. In Malley, the Court held that Section 1983 "defendants will not be immune if, on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue; but if officers of reasonable competence could disagree on this issue, immunity should be recognized." Id. at 1096 (emphasis added). This Court finds it appropriate to recognize this standard in a search warrant context. In the present case, given the undisputed evidence of the defendants' good faith discussed above, the Court concludes, as a matter of law, that the defendants acted in an "objectively reasonable" manner, as required by Malley, in both collecting the pen register information and in seeking the search warrant for the Browns' house. See id. at 1098. Summary judgment in favor of these defendants is appropriate upon this ground alone.

 Furthermore, in Franks v. Delaware, 438 U.S. 154, 171, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978), the Supreme Court held, that before a criminal defendant would be entitled to an evidentiary hearing on a challenge to the conduct of a police officer in seeking a search warrant, he had to overcome "a presumption of validity with respect to the ...


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