United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
Randolph D. Moss United States District Judge
one of a series of cases pending before this Court seeking
damages from the Metropolitan Police Department
("MPD") and individual officers for allegedly
searching private homes without probable cause. The common thread
in each case is an attack on the MPD's practice of
seeking search warrants based on an averment that the
investigating officer "knows" based on his or her
"training and experience" that individuals
suspected of certain crimes- typically involving the illegal
distribution of drugs or unlawful possession of a gun-are
likely to have evidence of their unlawful activity in their
homes. In each case, the plaintiff alleges that the officer
who submitted the affidavit in support of the warrant knew,
or should have known, that just the opposite is true-that, in
fact, people who are arrested outside their homes on drug or
gun charges rarely keep evidence of their illegal activity in
all of these cases rely on this common theme, each is also
unique. Some involve drug arrests, some guns, and some both.
Some involve little or no evidence of a nexus to the
residence searched, while others involve a more substantial
connection. And most involve additional allegations of police
misconduct, separate from the alleged deficiencies in the
warrant or supporting affidavit. As a result, just as a
magistrate must "make . . . practical, common-sense
decision[s] [based on] all of the circumstances set forth in
the affidavit, " Illinois v. Gates, 462 U.S.
213, 238 (1983), the Court must independently evaluate the
particular circumstances presented in each of these cases.
present dispute began when the investigating officer found a
handgun in the pocket of a jacket left by one of three men on
the top step of a walkway leading from the street to the
house where one of the three men (Terrence Crossland) lived
with his mother (Adrian Crossland) and grandmother (Ella
Lane). That discovery led to Terrance Crossland's arrest
(along with the other two men), a brief warrantless search of
the Crossland/Lane home, the subsequent issuance of a warrant
to search the home for various items relating to the
ownership and use of firearms, and a second, more extensive
search of the home. No evidence of illegality was found in
either search of the home, and the MPD ultimately declined to
bring any charges against Terrance Crossland. Following these
events, Terrance Crossland, Adrian Crossland and Ella Lane
brought this action, challenging the legality of virtually
all of the actions of the police officers that day, from
their initial interaction with Terrance Crossland on the
steps outside his home through their second search of the
Crossland/Lane home later that evening. Their complaint names
the officer who submitted the affidavit in support of the
search warrant, five other named officers, an unspecified
number of unnamed officers, and the MPD itself.
MPD, the District, and the individual officers (collectively,
the "District") have moved to dismiss the
complaint, principally on the grounds that the officers'
conduct was lawful; that, in any event, the individual
officers are protected by qualified immunity; and that the
plaintiffs have failed to allege a claim against the MPD
under Monell v. Department of Social Services of the City
of New York, 436 U.S. 658 (1978). Dkt. 9. For the
reasons explained below, the Court will
GRANT the motion in part and DENY it in
purposes of the defendants' motion to dismiss, the
following allegations from the complaint are taken as
true. See, e.g., Hishon v. King &
Spalding, 467 U.S. 69, 73 (1984). In addition, the
search warrant and supporting affidavit are attached to the
complaint and are thus properly before the Court for purposes
of resolving the defendants' motion. See EEOC v. St.
Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.
Cir. 1997) (explaining that when considering a motion to
dismiss, a court may "consider only the facts alleged in
the complaint, any documents either attached to or
incorporated in the complaint and matters of which we may
take judicial notice.").
to the complaint, MPD officers John Wright and Timothy
Haselden, along with an unnamed third officer, were
patrolling in a cruiser in northeast Washington, D.C, on
October 27, 2012, when they saw three men sitting on the
steps outside the Crossland/Lane home. Compl. ¶ 16; Dkt.
1-1 at 2. Wright saw one of them smoking a "hand-rolled
cigar, " which he believed to be marijuana. Compl.
¶ 17. He "also observed a [s]tyrofoam cup, which he
[later] asserted 'is often used by people when they drink
alcohol.'" Id. (quoting Dkt. 1-1 at 3). He
pulled over to question the men. Id.
steps were Darrell Boatwright, Terrance Crossland, and
Benjamin Crutchfield. Dkt. 1-1 at 2. Crutchfield was smoking
the "cigar." Id. Crossland and Crutchfield
were both wearing jackets; Boatwright was not. Id. The
styrofoam cup was next to Boatwright's left foot.
Id. at 3. After exiting the cruiser, Wright
"immediately . . . ordered the men to stay where they
were." Compl. ¶ 50. Although Wright later averred
in an application submitted for a warrant to search the
Crossland/Lane home that the three men then consented to a
search, see Dkt. 1-1 at 3, the complaint disputes that
assertion, alleging that the officers "immediately
searched the men, " a search that "include[ed]
putting their hands into the[ir] pockets." Compl. ¶
50. That search did not yield any contraband from any of the
men. Id. ¶ 51. Wright then asked the three men
for identification and asked whether they lived at the house.
Id. ¶ 18. Crossland said he did, and he handed
over his identification, which listed an address matching the
house. Id. Wright also asked Crutchfield to put out
the "cigar." Id. Crutchfield complied but
explained that he was smoking "Scoobie Snacks, " a
synthetic marijuana, and not "real weed."
Id.; Dkt. 1-1 at 3. Boatwright and Crutchfield also
provided their identification. Dkt. 1-1 at 3. Having found
nothing warranting further action, Wright granted the three
men permission to move to the front porch. Compl.
¶¶ 20, 51.
to Wright's affidavit, Boatwright "neglect[ed] to
pick up [a] red jacket that was next to him" when the
men got up to move. Compl. ¶ 51; Dkt. 1-1 at 3. Wright
claims he then told the group that they had left the jacket
behind, but "[t]he three collectively denied ownership
of the jacket." Dkt. 1-1 at 3. A bottle of Hennessy (a
cognac) was apparently protruding from one of the pockets of
the jacket, and, according to Wright, he told the three men
that he would keep it if none of the men claimed the jacket.
Id. At that point, according to Wright's
affidavit, Crossland responded, "yeah man, it's my
jacket[;] I got it." Id. The affidavit adds,
however, that Wright "found this to be strange because
[Crossland] was already wearing a jacket and . . . Boatwright
was the only individual in the group to not have a jacket
on." Id. Wright, accordingly, told Boatwright
to sit back down. Id. Wright then searched the red
jacket and found a handgun. Id. at 3-4. Wright
called for backup after finding the gun, and five more
officers arrived at the scene. Id. at 4. They placed
all three men under arrest for carrying a pistol and
possessing an open container of alcohol. Id. This
latter charge was based on the officers' belief that the
liquid in the styrofoam cup smelled like
Hennessy. Crutchfield was also charged with
"Possession of Other in reference to the synthetic
complaint tells a different story than the affidavit, and it
is that story that is controlling for purposes of the pending
motion to dismiss. See Hishon, 467 U.S. at 73.
Instead of Wright threatening to keep the bottle of Hennessy,
the complaint alleges that Wright "threatened to smash
the glass alcohol bottle on the steps of the property if the
men did not take the jacket." Compl ¶ 51. And
instead of Crossland saying "it's my jacket, "
the complaint alleges that Crossland merely responded to
Wright's demand that someone take the jacket to avoid
Wright's threat to break the bottle on Crossland's
walkway. Id. Plaintiffs agree in their complaint
that Wright then searched the red jacket and found the
the commotion outside, seventy-one year-old Ella Lane emerged
from the house and took pictures of the officers as they
searched and then arrested the three men, including her
grandson. Compl. ¶ 52. After placing the men under
arrest, several officers walked up to the porch where Lane
was standing and asked if they could go into the home to
speak with her. Id. ¶ 54. She refused entry,
offering instead to speak with the officers outside.
Id. The officers explained that they had found a gun
on one of the men and that they wanted to search her home.
Id. ¶¶ 54-55. Lane asked whether Wright
had a warrant, and he responded, "[No], but I'm
going in anyway." Id. ¶ 55. He then walked
past Lane and into her home along with another, unnamed
officer. Id. ¶ 56. She tried to follow them in,
but Haselden "grabbed [her] by the arm" and
"forcibly pulled her back and restrained her from going
back into her own house." Id. ¶¶
56-57. Wright and the unnamed officer searched the house for
approximately ten minutes. Id. ¶ 58. It does
not appear that they found anything relevant or took anything
with them following the search.
this initial search, Wright left to seek a search warrant.
Compl. ¶ 64. Three officers "remained with . . .
Lane to guard the house, " and they did not allow Lane
to re-enter her home while they awaited the warrant.
Id. ¶ 65. As a result, Lane waited outside on
an "uncomfortably chilly" October evening for
"nearly four hours" and could not retrieve food or
water or use the bathroom in her home. Id.
¶¶ 65-67. She was finally able to use a bathroom
when her daughter, Adrian Crossland, came home and took her
to a nearby McDonald's. Id. ¶67.
Lane was forced to wait outside her home, Wright prepared the
affidavit that included his account of the events stated
above, and he then applied for and obtained a warrant to
search the Crossland/Lane home. See Dkt. 1-1. In addition to
describing the events that led up to the arrest of the three
men, the affidavit described a number of events that occurred
after the officers and three men arrived at the police
station. At the station, police officers identified the
seized firearm by its serial number as stolen, and all three
men were then "additionally charged with Unregistered
Firearm and Unregistered Ammunition." Id. at 4.
The officers also examined the gun and learned that it
contained five rounds of ammunition in its magazine and one
in its chamber. Id. According to the affidavit,
Boatwright "admitted to purchasing the Hennessy,
admitted the styrofoam cup with the liquid was his, . . .
admitted the red jacket was his, [and] admitted the weapon
was his." Id. Significantly, the affidavit
explained that Boatwright correctly identified "the
weapon [as] a '25' (.25 Caliber)" pistol and
correctly stated that "it was loaded with six (6)
cartridges (rounds of ammunition) and that it was not
affidavit noted that Crossland admitted that he lived at the
home that the officers sought to search and that his D.C.
driver's license confirmed this fact. Id. It
also stated that a woman named "Ella" came out of
the house and told the officers that both she and Crossland
lived there. Id. Of particular relevance, the
affidavit further stated:
Based on your affiant's training, experience and
participation in narcotic and drug related investigations,
your affiant knows that, persons involved in illegal
activities maintain books, records, documentation and other
papers relating to the ordering, sales and servicing of their
firearms. I know that the aforementioned items are generally
maintained where persons involved in criminal activity can
obtain and read[ily] access them. I also know that there
people keep their firearms and ammunition inside of their
homes. One reason is to keep the police from recovering the
firearms and another is to protect themselves from being
robbed while inside their homes by others involved in illegal
activities. Ammunition in your Affiant's experience is
sold in boxes, known as 'Bricks" containing 50
rounds of ammunition. In your Affiant's experience, it is
extremely uncommon for individual rounds of ammunition to be
sold. Since many guns, including the larger assault weapon
models, do not carry 50 rounds of ammunition, it is very
common that individuals store their extra ammunition in their
places of residence.
Id. at 5. The affidavit concluded by requesting a
search warrant for the Crossland/Lane home "for the
reasons set forth and for any other evidence of a crime that
may be found." Id. The affidavit did not
disclose that the requesting officers had already conducted
an initial ten-minute search of the home and that, during
that brief search, they found no evidence of illegal
activity. See Compl. ¶¶ 56-59.
Gregory Jackson of the Superior Court for the District of
Columbia signed the search warrant, permitting the MPD to
search the plaintiffs' home for "[a]mmunition,
[h]olsters, [t]argets, [g]un [c]leaning kits, [o]ther
[f]irearms, [n]otes, [l]edgers, [d]ocumentation and other
[p]apers [r]elating to the [o]rdering, [s]ales, [s]ervicing
and use of their [f]irearms and [o]ther [i]tems [r]elated to
[i]legal [p]ossession of [f]irearms." Dkt. 1-1 at 1. The
MPD executed the search warrant, while Lane, now accompanied
by her daughter, continued to wait outside. Compl.
¶¶ 64-70. The complaint further alleges that the
officers who conducted the search "physically abused and
verbally threatened" Lane. One officer, for example,
allegedly told Lane that he would force her to move from her
home if he was ever called back to the house. Id.
¶¶ 6, 71. In addition, at some point during one of
the two searches, an MPD officer allegedly deleted from
Lane's camera the photographs that she had taken of the
arrest of her grandson earlier that day. Id.
¶¶ 7, 73. The officers also "tore apart"
Adrian Crossland's bedroom. Id. ¶ 74. It
took the family three days to clean up the mess left behind
after the search. Id. Terrence Crossland, meanwhile,
spent the weekend in jail and was released on October 30,
2013. Id. ¶ 77. No charges were filed against
him in connection to the incident. Id. The MPD has
not yet returned a cellphone they took from Crossland when
they arrested him. Id. ¶ 98.
STANDARD OF REVIEW
moving to dismiss a complaint under Rule 12(b)(6) bears the
burden of showing that the complaint "fail[s] to state a
claim upon which relief can be granted." Fed.R.Civ.P.
12(b)(6); see also Browning v. Clinton, 292 F.3d
235, 242 (D.C. Cir. 2002). "To survive a motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is
plausible on its face.'" Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 556, 570, (2007)).
"A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Id. The Court need not
accept as true any legal conclusions disguised as factual
allegations, '"naked assertion[s]' devoid of
'further factual enhancement, '" or a
'"formulaic recitation of the elements of a cause of
action.'" Id. (quoting Twombly,
550 U.S. at 555, 557) (alteration in original). The
plaintiff, however, is entitled to "the benefit of all
inferences that can be derived from the facts alleged."
Am. Natl Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C.
Cir. 2011) (quoting Thomas v. Principi, 394 F.3d
970, 972 (D.C. Cir. 2005)).
officers enjoy qualified immunity from personal liability for
civil damages if "their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known." Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). This limited
protection "balances two important interests-the need to
hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform
their duties reasonably." Pearson v. Callahan,
555 U.S. 223, 231 (2009). "The relevant, dispositive
inquiry in determining whether a right is clearly established
is whether it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted."
Saucier v. Katz, 533 U.S. 194, 202 (2001). The law
is "[o]rdinarily" clearly established if there is
"a Supreme Court or Circuit decision" on the issue
or [if] the clearly established weight of authority from
other courts . . . ha[s] found the law to be as the plaintiff
maintains." Doe v. District of Columbia, 796
F.3d 96, 104 (D.C. Cir. 2015) (quoting Currier v.
Doran, 242 F.3d 905, 923 (10th Cir. 2001)). There need
not be "a case directly on point" for the right to
be clearly established, "but existing precedent must
have placed the statutory or constitutional question beyond
debate" at the time the alleged violation occurred.
Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). In
other words, the "contours" of the right must be
"sufficiently clear" so that any "reasonable
official would have understood that what he is doing violates
that right." Anderson v. Creighton, 483 U.S.
635, 640 (1987). A plaintiff seeking to overcome a claim of
qualified immunity bears the burden of showing that the
constitutional right that the officers allegedly violated was
clearly established at the relevant time. See Dukore v.
District of Columbia, 799 F.3d 1137, 1145 (D.C. Cir.
allegations in the complaint are far-ranging, challenging the
lawfulness of the MPD officers' initial stop and search
of the men on the steps outside the Crossland/Lane home, the
search of the red jacket, Crossland's arrest, the initial
search of the home, the refusal to allow Lane to enter her
home for several hours, the refusal to return Crossland's
cellphone, the deletion of the photographs from Lane's
camera, insults that the officers directed at Lane during and
after the search, the accuracy of information included in the
application for a search warrant, and the omission of other
relevant information from the application. Compl.
¶¶ 85-86, 89-90, 93-100. For present purposes,
however, the Court will limit is analysis to the five
specific issues raised in the defendants' motion to
dismiss: (1) whether the MPD officers had probable cause to
arrest Crossland; (2) whether their "protective
sweep" of the Crossland/Lane home was lawful; (3)
whether the application for the warrant for the subsequent
search was supported by probable cause; (4) whether the MPD
officers who executed the search acted lawfully; and (5)
whether the complaint states a claim for municipal liability
under Monell. 
Arrest of Crossland
complaint alleges that the officers who arrested Crossland
acted without "probable cause to believe that he had
committed any offense." Compl. ¶ 98. To avoid the
defendants' qualified immunity defense with respect to
this claim, Crossland must show (1) that the arresting
officers violated Crossland's rights under the Fourth
Amendment and (2) that "it would have been clear to a
reasonable officer that [their] conduct was unlawful in the
situation [they] confronted." Saucier, 533 U.S.
at 202. As explained below, the Court cannot conclude at this
stage of the proceeding that the arresting officers are
protected by qualified immunity.
Fourth Amendment safeguards "[t]he right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, " and
provides that "no [w]arrants shall issue, but upon
probable cause." U.S. Const, amend. IV. Although use of
a warrant is the preferred course, "a warrantless arrest
by a law officer is reasonable under the Fourth Amendment
where there is probable cause to believe that a criminal
offense has been or is being committed." Devenpeckv.
Afford, 543 U.S. 146, 152 (2004). Probable cause
"is a practical, non-technical conception" that
considers "the facts and circumstances within [the
officers'] knowledge and [about] which they had
reasonably trustworthy information." Brinegar v.
United States, 338 U.S. 160, 175-76 (1949). The inquiry
focuses on what a reasonable officer would understand about
the situation at hand and the arresting officer's actual
"state of mind . . . is irrelevant."
Devenpeck, 543 U.S. at 153. The information
available to the arresting officer must be sufficient to
"warrant a man of reasonable caution [to] belie[ve] that
an offense has been or is being committed, "
Brinegar, 338 U.S. at 175-76, by the specific
"person to be . . . seized, " Maryland v.
Pringle, 540 U.S. 366, 371 (2003). In this respect,
"Fourth Amendment case law makes clear that an officer
cannot predicate a search or seizure on an individual's
'mere propinquity to others independently suspected of
criminal activity.'" Barham v. Ramsey, 434
F.3d 565, 573 (D.C. Cir. 2006) (quoting Ybarra v.
Illinois, 444 U.S. 85, 91 (1979)).
Crossland was arrested (and held over the weekend) for
carrying a pistol and possessing an open container of
alcohol. See Dkt. 1-1 at 4. Given that Crossland was
twenty-eight years-old, see Compl. ¶ 12, was
sitting on his own property, id. ¶ 16 & n.2,
and, in any event, was not holding or sitting next to the
styrofoam cup containing what the officers believed to be
alcohol, see Dkt. 1-1 at 2-3, it is not surprising
that the defendants do not seek to defend his arrest based on
the open container charge. They do argue, however, that there was
probable cause to arrest Crossland for the illegal possession
of handgun. See Dkt. 9 at 11. As explained below,
the Court concludes that the officers lacked probable cause
to arrest Crossland on that ground as well.
initial matter, Crossland argues that the arresting officers
lacked probable cause because Wright's search of the
jacket that contained the gun was itself unconstitutional.
Dkt. 11 at 33. According to Wright's affidavit, after the
officers' initial interaction with Boatwright, Crossland,
and Crutchfield, the three men stood to move to the front
porch. When Boatwright got up to move, however, he
"neglect[ed] to pick up the red jacket that was next to
him." Dkt. 1-1 at 3. Wright then said, "hey guys,
ya'll left your jacket, " and "[t]he three
collectively responded denying ownership." Id.
Putting aside for the moment Wright's intervening
exchange with Crossland, which is contested, the parties
agree that Wright subsequently searched the jacket and found
the gun. Id; Compl. ¶ 23. As Wright later
explained, that search was premised on the theory that the
jacket was "abandoned property, " which Wright
searched "in an effort to ascertain" who owned it.
Dkt. 1-1 at 3.
argues that this theory of abandonment is flawed as a matter
of fact and law. He argues that Wright could not reasonably
have believed that the jacket, which was located on private
property and rolled up next to Boatwright on the steps, was
abandoned property, and he contends that the concept of
abandonment is inapplicable, as a matter of law, to property
that is not left in a "public place." Dkt. 11 at
34. The defendants, in response, argue that property is
deemed "abandoned" for purposes of the Fourth
Amendment when "[a] voluntary denial of ownership
demonstrates sufficient intent of dissociation to prove
abandonment." Dkt. 12 at 9 (quoting United States v.
Lewis, 921 F.2d 1294, 1302 (D.C. Cir. 1990)).
defendants correctly argue, see Dkt. 9 at 7,
Wright's search of the jacket is irrelevant to
Crossland's claim that his arrest was unlawful. For
present purposes, Crossland acknowledges that the jacket, in
fact, belonged to Boatwright. See Compl.
¶¶ 26-27'. The Fourth Amendment, however,
covers places and property only in which the individual
seeking its protection has a "reasonable expectation of
privacy." Katz v. United States,389 U.S. 347,
360 (1967) (Harlan, J., concurring). That is, Fourth
Amendment rights "are personal" and "may not
be vicariously asserted." Alderman v. United
States,394 U.S. 165, 174 (1969). As a result, "[a]
person who is aggrieved by an illegal search and seizure only
through the introduction of damaging evidence secured by a
search of a third person's premises or property has not
had any of his Fourth Amendment rights infringed."
Rakas v. Illinois,439 U.S. 128, 134, (1978);
see also United States v. Leon,468 U.S. 897, 905-06
(1984) ("The Fourth Amendment contains no provision
expressly precluding the use of evidence obtained in
violation of its commands, and an examination of its origin
and purposes makes clear that the use of fruits of a past
unlawful search or seizure 'work[s] no new Fourth
Amendment wrong.'" ...