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Sutherlin v. Smith

United States District Court, W.D. Virginia, Danville Division

February 17, 2016


Senior United States District Judge



This matter is before the Court on Defendants’ Rule 12(b)(6) motion to dismiss. The parties have fully briefed the motion, and I have reviewed the relevant filings and arguments.[1]For the reasons stated herein, I will grant Defendants’ motion in part and deny it in part.

Before explaining my ruling, I must remind the parties of this Court’s Pretrial Order and this District’s Rules. For those motions that are to be briefed, generally there are to be no more than three briefs: (1) the movant’s supporting brief, which is to accompany the motion, (2) the nonmovant’s opposition brief, and finally (3) the movant’s reply brief. (Pretrial Order at pgs. 1- 2, Nov. 5, 2015 [ECF No. 9].) W.D. Va. Civ. R. 11(c)(1). The parties exceeded this limitation in briefing the motion to dismiss. They not only overlooked the Court’s Order and the District’s Rules but, in doing so, also addressed matters beyond the focus of Defendants’ motion, made the matter less wieldy, and needlessly drew upon the Court’s time and resources. The parties are to obey applicable Orders and Rules. Further failures to do so may result in sanctions.


On September 25, 2013, Alvin L. Sutherlin, Jr., (“Plaintiff”) resided on the first floor of a duplex at 505 Jefferson Street in Danville. (See Compl. ¶¶ 6, 8, Sept. 24, 2015 [ECF No. 2].) Plaintiff “occup[ied] the whole [first] floor as [his] residence.” (Id. ¶ 8.) He kept an “office area” in the “[first] room on the left” upon entering the duplex’s first floor “through the front door.” (See id. ¶ 7.) Plaintiff’s two sons resided on the other side of the duplex’s first floor. (Id. ¶ 8.) The duplex had four rental units on the second floor, which was operated as a rooming house. (See id. ¶¶ 7, 8.) Plaintiff was the property manager for the second-floor units. (See id. ¶ 7.) He managed the units for Alice Carson, the owner. (See id.) In addition, Plaintiff ran his own business, servicing computers and laptops out of his residence. (See id. ¶ 15.) Michele Owens and her teenage son resided in one of the second-floor units. (See id. ¶ 7.)

At 7:28 p.m. on September 25, 2013, Sergeant H.S. Richardson of the Danville Police Department applied to a magistrate for a warrant to search the duplex “in relation to an offense” of “Possession with Intent to Distribute Marijuana in Violation of Virginia State Code § 18.2-248.1.” (Id. ex. pg. 3 [ECF No. 2-1].) According to Sergeant Richardson, within the past seventy-two hours, a confidential informant[3] had been “inside the first room to the left on the first floor” of the duplex, had “seen a quantity of marijuana and scales, ” and had informed that “marijuana has been sold from that residence.” (Id. ex. pg. 4.) Sergeant Richardson wished to search this room[4] for “[m]arijuana, scales, monies, baggies, digital media devices, documents, paraphernalia, and any instrumentalities associated with the illegal possession and/or distribution of marijuana at 505 Jefferson Street.” (Id.) Finding probable cause of criminal evidence, the magistrate issued the search warrant at 7:33 p.m. (Id. ex. pg. 1.)

Shortly before 8:30 p.m., ten officers of the Danville Police Department entered the duplex’s first floor without knocking or announcing their presence. (Id. ¶ 6.) Upon the officers’ entry, Plaintiff and Ms. Owens “came out from [Plaintiff’s] kitchen into [his] hallway to see what was going on.” (Id. ¶ 7.) The officers pointed their guns at the two and commanded that they stop. (Id.) Plaintiff responded that this was his home and that the officers had “just walked in.” (Id.) Two male officers said that they had a search warrant. (Id.) Officer M.C. Pace asked Plaintiff to remain calm and to remain put. (Id.) She explained that the warrant was “not for [Plaintiff’s] place” but for the office area. (Id.)

Sometime later, Plaintiff and Ms. Owens asked the officers about the warrant and asked to see it. (Id.) Sergeant Richardson responded, “Alright I’m just telling you that’s it everything [sic] good, we’re here we’re [sic] a search warrant I don’t know we got someone in handcuffs, but this was signed hours ago.” (Id.) He removed a folded piece of paper from his pocket, held it up, and placed it back in his pocket. (Id.) Sergeant Richardson indicated that this sufficed for proper service. (Id.) Again, Plaintiff asked to see the warrant, but Officer D.C. Lancaster told him to wait. (Id. ¶¶ 7, 8.) For over an hour, Plaintiff waited in the hallway but “was never handed the warrants and/or affidavits by any Officer at any time.” (Id. ¶ 8.)

While Plaintiff waited in the hallway, Officer Lancaster seized $554.00 cash from Plaintiff’s person and handed it to Officer R.C. Landrum. (See id. ¶ 9.) Of that sum, $4.00 was Plaintiff’s. (Id.) The $550.00 consisted of tenants’ rent payments, which Plaintiff had collected for Mrs. Carson. (Id.) Plaintiff informed the officers that it was rent money. (Id.) Officer Landrum took the money into the office area and told other officers that Plaintiff had identified it as rent money. (Id.) One officer yelled out, “If it is in your pocket, then it belongs to you.” (Id.)

Almost immediately after the entry into the duplex, several officers went into the office area. (See id. ¶ 12.) Brittney Logan had been the only person in the room, and she was “downloading data” on her laptop when the officers came in. (Id.) The officers told her “to get on the ground, ” handcuffed her, and led her outside.[5] (Id.) An officer asked if she was making movies, and she denied it. (Id.) Officer L.D. Land approached Ms. Logan with a jacket and asked if it was hers. (Id.) When she affirmed, the officer informed her that “she was being charged with possession of marijuana because of one marijuana cigarette which she had in her jacket pocket.” (Id.)[6] “That was the largest amount of marijuana that was found in the room.” (Id.)

While in the office area, Officer Land and Sergeant Richardson came upon “a box of mix caliber ammo.” (See id. ¶ 13.) The ammunition was Mr. Carson’s, who left it in Plaintiff’s care. (Id.) Although “not stated as items to be seized under the warrant, ” the officers seized the ammunition as well as “dies for Reloading different caliber of ammo anyway.” (Id.) These items remain in police custody. (Id.)

According to the “Search Inventory and Return, ” the officers seized the following items under the initial search warrant:

1. 554.00 currency
2. Digital scales
3. Plastic bag containing another plastic bag of green plant material
4. Bag of green plant material
5. Metal grinder
6. Assorted caliber ammunition
7. .177 BB handgun
8. HTC smart phone
9. Motorola smart phone
10. Sanyo flip phone
11. Kyocera cell phone
12. Samsung cell phone.

(Id. ex. pg. 2.)

When in the office area, the officers “quickly abandoned their search for marijuana and began confiscating DVDs and CD disc[s].” (Id. ¶ 14.) They began to inventory the discs, counting them, until, shortly before 10:00 p.m., they obtained a warrant to seize them. (Id.) Finding probable cause of evidence of “[p]ossession with intent to distribute video movies without the true manufacturer named in violation of VA codes 59.1-41.3, 59.1-41.4, 59.1-41.5, and 59.1-41.6, ” the magistrate issued a warrant to seize

DVD’s both burned and unburned, CD’s both burned and unburned, laptop computers, desktop computers, monitors, recording devices of any type, digital media storage in all forms to include but not limited to jump drives, memory cards, and tablet devices. All DVD movies, even those . . . which appear to be legitimate, used as originals for recording unlicensed DVD movies, any and all digital devices present which may be associated with the illegal reproduction of motion picture movies and professionally licensed recorded music.

(Id. ex. pg. 5.)

Officer Land asked Plaintiff if he wished to make a statement and what he would do with “a 100 stack of blank DVDs.” (Id. ¶ 15.) Plaintiff responded that he “would take [a] majority of them and use them for [his] own personal use and would sell some of the blanks.” (Id.) The Complaint states that, related to his computer-servicing business, it was “common practice” for Plaintiff to “[b]ack[] up data” onto “several blank DVDs” when “servicing [a] customer’s computer systems.” (Id.)

Officers boxed Plaintiff’s video collection and seized it along with all of his customers’ laptops that were to be serviced, a customer’s DVD burn tower that had been scheduled for service upon the customer’s prepayment for parts, Plaintiff’s JVC DVD-player home theater system, and Plaintiff’s flat-screen television. (Id. ¶ 16.) During this time, Sergeant Richardson informed Plaintiff that he would not get any of these items back. (Id ...

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