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S.H. v. District of Columbia

United States District Court, District of Columbia

September 16, 2017

S.H., a minor child, et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS United States District Judge

         This is the final case in a series of cases seeking damages against the Metropolitan Police Department (“MPD”) and individual officers for allegedly searching private homes without probable cause.[1] In this case, as in the other cases, Plaintiffs challenge the MPD's practice of seeking search warrants based on an officer's attestation that, in light of his or her “training” and “experience, ” individuals suspected of certain crimes-typically involving the illegal distribution of drugs or unlawful possession of guns-are likely to have evidence of their unlawful activity in their homes. And here, as in the other cases, Plaintiffs allege that the officer who submitted the affidavit knew, or should have known, that just the opposite was true and that, in fact, people who are arrested outside their homes on drug or gun charges rarely keep evidence of their illegal activity in their homes. Although implicating these common themes, however, this case, like the others, turns on its unique facts and raises a host of distinct issues and claims.

         The present dispute began when the MPD stopped a car in Northeast Washington, D.C., for driving with an allegedly obstructed license plate. That stop led to the arrest of Mordsen Box on various charges, including possession of approximately five ounces of marijuana with intent to distribute. Box carried an Ohio identification card, and the car he drove had Ohio license plates. But Box also had a suspended D.C. driver's license, which indicated that he lived at 1054 Quebec Place, N.W., Washington, D.C. Based on this information, other information that is disputed for present purposes, and the attesting officer's “training” and “experience, ” Officer Taylor Volpe of the MPD obtained a search warrant. Armed with that warrant, the MPD then conducted a nighttime search of the Quebec Place residence thirteen days after Box was arrested.

         When the MPD officers entered the home, they found Shandalyn Harrison (“Harrison”) sitting on the couch watching television with her seven- and thirteen-year-old daughters (“S.B.” and “S.R., ” respectively). They then found Harrison's nineteen-year-old brother Sterling Harrison (“Sterling”) playing a video game in his bedroom, [2] pointed a gun at his head, and placed him in handcuffs. The MPD officers proceeded to enter the bathroom where Harrison's eleven-year-old daughter (“S.H.”) was showering, opened the shower curtain, and pointed a gun at her while she stood naked in the shower. In the course of the search, the MPD allegedly ransacked the home, but found no evidence of illegal activity. According to Plaintiffs, although Box is the biological father of S.B., he had not lived with the family in several years. Plaintiffs further assert that they had informed the MPD of this fact on at least two occasions prior to the search.

         Plaintiffs challenge virtually every aspect of the search, from whether the MPD had probable cause to search Box's car in the first place, to the candor of Officer Volpe's affidavit in support of his application for the search warrant, to the validity and breadth of the warrant, and, finally, to the manner in which the search was conducted. They also challenge the policies and practices of the MPD relating to the training and supervision of its officers. Defendants, in turn, have moved to dismiss, arguing that (1) the individual defendants are entitled to qualified immunity as a matter of law, (2) the complaint fails to state a claim under Monell v. Dep't of Soc. Servs. of New York, 436 U.S. 658 (1978) (“Monell”) against the MPD or the District of Columbia, and (3) the complaint fails to state a claim for negligence per se.

         For the reasons explained below, the Court will grant Defendants' motion in part and deny it in part.

         I. BACKGROUND

         At this stage of the proceeding, the Court must accept the factual allegations contained in Plaintiffs' amended complaint as true and must also consider the search warrant and affidavit, which are attached to and referenced in their complaint. See, e.g., Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

         A. Traffic Stop of Mordsen Box

         MPD officer Taylor Volpe stopped a car on April 5, 2013, in Northeast Washington, D.C., for driving with an obstructed license plate. See Dkt. 1-1 at 3-4. Plaintiffs assert-and the Court must accept as true-that the license plate was not obstructed and that Volpe did not have a legitimate reason to conduct the stop. See Dkt. 24 at 4 (Am. Compl. ¶ 15 & n.3). Volpe asked the driver, Mordsen Box, if the officers could search the car for “anything illegal.” Id. (Am. Compl. ¶ 16) (quoting Dkt. 1-1 at 4). Box replied that he did not think there was anything illegal in the car, but told Volpe he could search “if [he] ha[d] to.” Id. at 5 (Am. Compl. ¶ 18). Volpe confirmed: “[O]k, so can I look?” Id. Box responded with a “yeah.” Id. Volpe then searched the car and found a glass jar with 42.2 grams (about 1.5 ounces) of marijuana. Id. (Am. Compl. ¶ 19). Officers also found twenty-nine empty plastic sandwich bags in the vehicle, as well as $180 in cash during a search of Box's person. Id.

         Box was arrested and taken to the police station. Dkt. 1-1 at 4. Five to ten minutes after he was taken out of the transport vehicle, officers discovered another 103.2 grams (more than 3.6 ounces) of marijuana in a ziplock bag inside the police van. Id. Box was the last person to exit the vehicle, and the officers had not seen the marijuana inside before taking him to the station. Id. Box was charged with driving with a suspended license, possession of drug paraphernalia, and possession of marijuana with intent to distribute. Id. at 4-5.

         B. Officer Volpe's Warrant Application

         Three days after Box's arrest, Volpe applied for a warrant to search the Quebec Place residence. In support of that application, Volpe submitted an affidavit attesting to various facts purporting to establish probable cause (1) that Box resided at 1054 Quebec Place, and (2) that a search would reveal evidence of illegal narcotics trafficking at his residence. See Dkt. 1-1.

         With respect to Box's place of residence, Volpe disclosed that the car Box was driving had Ohio license plates and that Box was carrying an Ohio identification card. Id. at 3-4. He further attested, however, that Box stated at the time of his arrest that “his current address [wa]s 1054 Quebec Place Northwest[, ] Washington[, ] D[.]C., ” and that “Box had a utility listing [dated] 12-27-2012 at 1054 Quebec Place.” Id. at 5. Volpe also attested that Box stated “that his D.C. driver's license had been suspended, ” that Volpe ran Box's name “through [the] Wales/NCIC” database, and that Box's “suspended D.C. license . . . list[ed] the same [Quebec Place] address as his place of residence.” Id. at 4-5.

         With respect to the second question-whether there was probable cause to believe that a search of Box's residence would reveal evidence of his involvement in illegal narcotics trafficking-Volpe relied principally on the “training” and “experience” he had gained over the course of his year of service as a member of the MPD. Id. at 2. In addition to averring that Box had been arrested in possession of approximately five ounces of marijuana, twenty-nine empty plastic sandwich bags, and $180 in twenty-dollar bills, id. at 4, Volpe's affidavit included several paragraphs devoted to describing where those engaged in narcotics trafficking “routinely” or “common[ly]” conceal contraband and other evidence of their criminal activity. Id. at 2-3. He attested that, “[b]ased on [his] training and experience, [he] kn[e]w that”:

a. Individuals who deal in illegal controlled substances maintain books, records, receipts, notes, ledgers, bank records, money orders and other papers relating to the importation, manufacture, transportation, ordering, sale and distribution of illegal controlled substances, [and that] [t]hese [materials] are maintained where [those individuals] have ready access to them, such as in secured locations within their residence, the residences of friends, family members, and associates, or in . . . a stash house or safe house.
b. Individuals who deal in illegal controlled substances routinely conceal in their residences or the residences of friends, family members, and associates, or in the places of operation of the drug distribution activity, such as a stash house or safe house, large quantities of currency, financial instruments, precious metals, jewelry and other items of value, typically proceeds of illegal controlled substance transactions.
c. It is common for [drug dealers], especially [those who sell] marijuana, to secrete contraband related to [their] activity, such as scales, safes locked or unlocked[, ] at their residences, or the residences of friends, family members, or associates, or in . . . a stash house or safe house.
d. Individuals who deal in the sale and distribution of controlled substances commonly maintain addresses and telephone number books or papers which reflect names, addresses and/or telephone numbers for their associates in their illegal organizations[;] [t]hese individuals often utilize cellular telephones, pagers and telephone systems to maintain contact with their associates in their illegal businesses[, ] [and] [t]hese telephone records, bills and pager numbers are often found in their place of residence, or the residence of friends, family members, or associates, or in . . . a stash house or safe house.
e. Individuals who deal in illegal controlled substances often take photos of themselves, their associates, their property and illegal contraband[, ] [and usually maintain those materials] in their places of residence, or the residences of friends, family members, or associates, or . . . a stash house or safe house.
f. Persons who traffic controlled substances maintain documents, letters and records relating to illegal activity for long periods of time[, ] [and] [t]his documentary evidence is usually secreted in their residence, or the residences of friends, family members, or associates, or in . . . a stash house or safe house. . . .
g. Individuals involved in narcotics trafficking often own, possess and/or use weapons as a means to facilitate their illegal drug activities[, ] [and] [s]uch weapons are most often secreted in their residence, or the residences of friends, family members, or associates, or in . . . a stash house or safe house.

Id. at 2-3 (emphases added). And, finally, Volpe attested that based on his “experience and knowledge, ” those “who distribute illegal narcotics make it a habit to store them at their place of residence” to avoid “being robbed of their product by rival . . . traffickers” and “to keep members of law enforcement from seizing their product.” Id. at 5.

         Plaintiffs dispute several assertions contained in Volpe's affidavit. For one, they assert that Box never told Volpe that he lived at 1054 Quebec Place. Dkt. 24 at 7 (Am. Compl. ¶ 27). For another, they challenge Volpe's assertion that a recent utility bill indicated that Box lived at the Quebec Place residence; they allege, to the contrary, that “none of the utility bills at the house had ever been in . . . Box's name.” Id. (Am. Compl. ¶ 29). And, they allege that Volpe's affidavit omitted the fact that MPD officers had been informed on at least two occasions “in the weeks and months leading up to the application for the warrant” that Box did not live at the Quebec Place residence. Id. at 6 (Am. Compl. ¶¶ 24-25). On one occasion, “Harrison told police at the door that . . . Box did not live there, ” and, on the other, S.B., S.H., and S.R.'s grandmother told officers who came to the door the same thing. Id. (Am. Compl. ¶ 25).

         Plaintiffs also dispute the accuracy of Volpe's factual assertions regarding the knowledge gleaned from his “training” and “experience” regarding the “common” or “routine” habits of drug dealers. They allege, for example, that Volpe failed to inform the Superior Court judge who issued the warrant that, “in the vast majority of cases in which MPD officers execute such warrants after a traffic or street stop based only on their ‘training' and ‘experience' and not actual evidence connecting the home to criminal activity, the warrant returns submitted by officers themselves prove that MPD officers do not find the items that they seek.” Id. at 10 (Am Compl. ¶ 42). Indeed, according to Plaintiffs, “[i]f small amounts of marijuana are excluded, MPD officers failed to find illegal drugs that they were purportedly searching for in nearly 87% of the cases.” Id. (Am. Compl. ¶ 44). In their view, that success rate “is closer to what one would expect to find at random in searches of homes occupied by D.C. families.” Id. at 11 (Am. Compl. ¶ 46). Plaintiffs further contend that the Volpe affidavit, in at least one respect, refutes the probable cause it purported to establish-that is, rather than focusing on the likelihood that evidence of illegal activity will be found in the homes of those engaged in drug trafficking, it avers that this evidence might be found in the drug dealer's home; or the homes of the drug dealer's friends, family, or associates; or, if not in any of those places, in a stash house or safe house. Dkt. 1-1 at 2. According to Plaintiffs, Volpe's own assertions, accordingly, minimize the likelihood that the relevant evidence will be found where the drug dealer resides, as opposed to one of the numerous other locations Volpe identifies. Dkt. 11 at 24-25.

         A D.C. Superior Court judge signed the warrant application on April 8, 2013, and authorized the MPD to conduct a search on or before April 18, 2013. Dkt. 1-1 at 1, 6. The warrant provided: “YOU ARE HEREBY AUTHORIZED within 10 days of the date of issuance of this warrant to search in the daytime/at any time of the day or night, the designated (person) (premises) (vehicle) (object) for the property specified . . . .” Id. at 1. It listed a broad array of items for which the MPD was authorized to search, including illegal drugs, drug paraphernalia, scales, books, cash, containers, computers, records, notes, and telephone bills. Id.

         C. The Search of the Harrison Home

         According to the amended complaint, approximately twenty armed MPD officers executed the search warrant at the Quebec Place residence on April 18, 2013, at 10:00 p.m. Dkt. 24 at 15 (Am. Compl. ¶ 62). When the officers arrived, Harrison was sitting on her couch with two of her daughters, S.B. and S.R., aged seven and thirteen, watching television. Id. at 3, 15 (Am. Compl. ¶¶ 10, 63). The officers “banged loudly” on the door but did not identify themselves as police, and, as “Harrison began to open the door . . ., the [officers] burst through the door, physically knocking her back.” Id. (Am. Compl. ¶ 64). The amended complaint further alleges that the officers entered the home “wielding shields, machine guns, handguns, and other weapons.” Id. (Am. Compl. ¶ 65). The officers kept Harrison and her two daughters on the couch as they searched the rest of the house. Id. (Am. Compl. ¶ 66).

         Three officers found Harrison's nineteen-year-old brother Sterling in his room playing a video game. Id. at 3, 15 (Am. Compl. ¶¶ 10, 67). The officers aimed their weapons at his head and handcuffed him “even though he had remained calm and had done nothing illegal, aggressive, or violent.” Id. The officers “continued to point guns at him even after it was clear that he did not pose any threat.” Id. They took Sterling out of his room, brought him to the family room where his sister and nieces were seated, and held up a photograph of the thirty-two-year-old Box. Id. at 15-16 (Am. Compl. ¶ 68). The family told the officers that Sterling was not the man in the photograph. Id. at 16 (Am. Compl. ¶ 68). The officers, nonetheless, kept Sterling handcuffed for approximately thirty minutes. Id.

         Meanwhile, another officer in a different part of the house entered a bathroom unannounced after hearing the shower running. Id. (Am. Compl. ¶ 70). He opened the shower curtain and found eleven-year-old S.H. naked in the shower. Id. at 3, 16 (Am. Compl. ¶¶ 10, 70- 71). With one hand displaying his shield, the officer allegedly pointed his weapon at the girl's head. Id. (Am. Compl. ¶ 71). S.H. began “screaming and crying for her mommy” as she stood naked, unable to leave or to retrieve a towel or clothes because the officer was pointing his gun at her. Id. (Am. Compl. ¶ 72). Harrison responded to the screams and brought her daughter clothing. Id. (Am. Compl. ¶ 73). The entire family was then confined to the couch while the officers continued the search. Id. (Am. Compl. ¶ 74). The officers “ransacked the home, . . . and it took the family days of laboring to clean up their belongings.” Id. at 16 (Am. Compl. ¶ 75). The MPD did not locate any evidence of unlawful activity. Dkt. 1-1 at 1.

         D. Procedural History

         Plaintiffs brought suit in August 2014, Dkt. 1, and filed an amended complaint in September 2015, Dkt. 24. Their amended complaint is sweeping. In Count One, Plaintiffs allege that the warrant was so lacking in probable cause that no reasonable officer could have relied upon it in good faith. Dkt. 24 at 20-21 (Am. Compl. ¶¶ 93-94). In Count Two, they allege that the warrant application contained a series of knowingly or recklessly false statements and material omissions. Id. at 21 (Am. Compl. ¶¶ 95-96). In Count Three, they allege that the warrant was so clearly overbroad that no reasonable officer could have executed it in good faith. Id. at 21-22 (Am. Compl. ¶¶ 97-98). In Count Four, they allege that the search of Box's car that resulted in discovery of the marijuana and his arrest was unconstitutional and that this Fourth Amendment violation infected the warrant to search the Quebec Place residence. Id. at 22 (Am. Compl. ¶¶ 99-100). In Counts Five and Eight, Plaintiffs challenge the failure of the MPD to properly train and supervise its officers. Id. at 22-23, 25-26 (Am. Compl. ¶¶ 101-02, 108-09). In Count Six, they allege that the officers who searched the Quebec Place residence used excessive force and made unnecessary and unreasonable seizures. Id. at 23-24 (Am. Compl. ¶¶ 103-04). And, finally, in Count Seven, they allege that the nighttime search of the Quebec Place residence was per se negligent under the U.S. Constitution and D.C. law. Id. at 24-25 (Am. Compl. ¶¶ 105-07).

         After Plaintiffs filed their amended complaint, the parties agreed to treat Defendants' previously-filed motion to dismiss as though it had been filed in response to the amended complaint. Dkt. 31. The parties subsequently requested that the Court stay the action-along with the other similar cases pending before the Court-to permit them “to focus on settlement efforts, ” and the Court granted a stay. See Minute Order (Dec. 9, 2016). The parties' efforts to settle this case proved unsuccessful, and the Court lifted the stay in April 2017. See Minute Order (April 4, 2017).

         II. LEGAL STANDARD

         A party 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 Atl. Corp. v. Twombly, 550 U.S. 544, 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. Nat'l 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)).

         Police 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 [officer] 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)) (second alteration in original). 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 understand 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. 2015).

         III. ANALYSIS

         Although Defendants ask the Court to dismiss Plaintiffs' amended complaint in its entirety-and they broadly assert that the individual officers are entitled to qualified immunity and that the amended complaint does not otherwise state a claim, Dkt. 8 at 1-their motion, in substance, addresses only a handful of the many issues raised by Plaintiffs' amended complaint. It argues, in particular, that the lawfulness of the search of Box's car is irrelevant to the present dispute; that the information that Plaintiffs say Volpe omitted from his affidavit was immaterial, as was Volpe's allegedly false assertion that Box identified 1054 Quebec Place as his residence; that, as a matter of law, the MPD's use of firearms and handcuffs in the course of the search did not constitute excessive force; that Plaintiffs' Monell claims fail as a matter of law because their underlying claims fail; and that Plaintiffs have failed to allege the necessary elements of a claim for negligence per se. See Dkt. 8 at 9-18. The Court will, accordingly, confine its analysis to these issues, leaving the remaining issues for another day.

         The Court will first address issues relating to the warrant; will then turn to the execution of the search; will next address whether the complaint alleges a claim for negligence per se; and will finally address Plaintiffs' Monell claims.

         A. Reliance on the Warrant (Counts One-Four)

         The right of a person “to retreat into his [or her] own home and there to be free from unreasonable governmental intrusion” lies “[a]t the core” of the Fourth Amendment. Silverman v. United States, 365 U.S. 505, 511 (1961). As a result, with limited exceptions not applicable here, the Fourth Amendment prohibits “searches and seizures inside a home without a [valid] warrant.” Groh v. Ramirez, 540 U.S. 551, 558-59, 564 (2004); see also, e.g., Brigham City v. Stuart, 547 U.S. 398, 403 (2006); Kyllo v. United States, 533 U.S. 27, 31 (2001). A warrant is valid, in turn, only if it is based “upon probable cause, supported by [o]ath or affirmation, ” and only if it “particularly describ[es] the place to be searched, and the persons or things to be seized.” U.S. Const., amend. IV. Here, Plaintiffs contend that the warrant lacked these basic features, rendering the search of their home effectively warrantless and, hence, unconstitutional.

         To pierce the defendant officers' qualified immunity, however, Plaintiffs must do more than prove that the warrant was invalid. They must, in addition, show that the flaws were so “obvious that no reasonably competent officer would have concluded that a warrant should [have] issue[d].” Malley v. Briggs, 475 U.S. 335, 341 (1986). The governing standard derives from United States v. Leon, 468 U.S. 897 (1984), an exclusionary rule case holding that evidence procured in violation of a criminal defendant's Fourth Amendment rights need not be suppressed if the officers reasonably relied on a warrant. Although crafted in a different context, “the same standard of objective reasonableness that . . . applie[s] in the context of a suppression hearing [under] Leon, [also] defines the qualified immunity accorded an officer whose request for a warrant allegedly caused an unconstitutional arrest” or search. Malley, 475 U.S. at 344 & n.6.

         Leon, however, also recognized certain “circumstances [in which] the officer[s] will have no reasonable grounds for believing that the warrant was properly issued, ” 468 U.S. at 922-23 (footnote omitted), and those same exceptions apply in assessing whether an officer is immune from civil suit. No such reasonable grounds exist, for example, “if the magistrate or judge in issuing a warrant was misled [with respect to a material fact] by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth.” Id. at 923 (citing Franks v. Delaware, 438 U.S. 154 (1978)). “Nor would an officer manifest objective good faith in relying on a warrant based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Id. (internal quotation marks omitted); see also Messerschmidt v. Millender, 565 U.S. 535, 546-47 (2012). And “a warrant may be so facially deficient-i.e., in failing to particularize the place to be searched or the things to be seized-that the executing officers cannot reasonably presume it to be valid.” Leon, 468 U.S. at 923; see also Groh, 540 U.S. at 565.

         Counts One, Two, and Three of Plaintiffs' amended complaint attempt to bring this case within these three Leon exceptions. See Dkt. 24 at 20-22 (Am. Compl. ¶¶ 94, 96, 98). Count Four, meanwhile, seeks to establish an additional exception-not recognized in Leon-that would prohibit officers from relying on warrants based on affidavits containing information obtained in violation of a third party's Fourth Amendment rights. See Id. at 22 (Am. Compl. ¶ 100). The Court considers each count, and each asserted exception, below.

         1. False Statements and Material Omissions in Volpe's Affidavit (Count Two)

         For analytic clarity, the Court begins with Count Two, which alleges that Officer Volpe secured the warrant only by knowingly and recklessly misleading the Superior Court judge who issued it. See Id. at 21 (Am. Compl. ¶ 96). “Because a search warrant provides the detached scrutiny of a neutral magistrate, ” the Supreme Court has “expressed a strong preference for warrants and [has] declared that in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fail.” Leon, 468 U.S. at 913-14 (internal quotation marks and citations omitted). Under a rule first announced in Franks v. Delaware, and reaffirmed in Leon, however, that deference “gives way when the affidavit upon which the magistrate relied ‘contain[ed] a deliberately or recklessly false statement.'” Lane v. District of Columbia, 211 F.Supp.3d 150, 173 (D.D.C. 2016) (quoting Franks, 438 U.S. at 165).

         A finding of deliberate or reckless falsity does not, however, end the inquiry. The Franks analysis includes a second step: The Court must also consider whether the false statements were “material.” Id. at 173 (citing Franks, 438 U.S. at 156). To assess materiality, the Court must construct a hypothetical affidavit that omits the false statements and then must ask whether the remaining portions of the affidavit would have been sufficient “to establish probable cause.” Franks, 438 U.S. at 156. “Th[is] same two-step approach, ” moreover, also “applies to omissions.” Lane, 211 F.Supp.3d at 173. “The Court must first determine whether the affiant deliberately or recklessly omitted relevant information and, ” second, must determine “whether ‘inclusion' of the omitted information ‘in the affidavit would [have] defeat[ed] probable cause.'” Id. (quoting United States v. Spencer, 530 F.3d 1003, 1007 (D.C. Cir. 2008)) (alterations in original). In both circumstances, the Court's task is essentially the same. “It must excise any information that is allegedly false and include any information allegedly omitted, ” id., and must then ask whether the revised, hypothetical affidavit would “still establish probable cause, ” id. (quoting United States v. Cardoza, 713 F.3d 656, 659 (D.C. Cir. 2013)).

         Finally, because the defendant officers seek to invoke their qualified immunity at the motion to dismiss stage, the Court must accept Plaintiffs' allegations as true and must draw all reasonable inferences derived from those allegations in Plaintiffs' favor. Iqbal, 556 U.S. at 678; Am. Nat'l Ins. Co., 642 F.3d at 1139. At this early stage of the proceeding, moreover, Plaintiffs are entitled to allege “intent, knowledge, and other conditions of a person's mind . . . generally.” Fed.R.Civ.P. 9(b). That does not mean they may rely on “conclusory” allegations of knowledge or recklessness. Iqbal, 556 U.S. at 686-87. But Rule 9(b) relieves them of the ...


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