United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS United States District Judge
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. 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.
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
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,
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.
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.
reasons explained below, the Court will grant Defendants'
motion in part and deny it in part.
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).
Traffic Stop of Mordsen Box
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.
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.
Officer Volpe's Warrant Application
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.
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.
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
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
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.
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).
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.
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
The Search of the Harrison Home
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).
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.
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.
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).
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).
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)).
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).
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.
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'
Reliance on the Warrant (Counts One-Four)
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.
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.
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.
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.
False Statements and Material Omissions in Volpe's
Affidavit (Count Two)
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).
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)).
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 ...