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Booker v. Johnson

United States District Court, E.D. Virginia, Alexandria Division

September 8, 2017

Walter Delaney Booker, Plaintiff,
Sgt. S. Johnson, Defendant


          Uames C. Cacheris United States District Judge

         Walter Delaney Booker, a Virginia inmate proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983, alleging that his Fourth, Fifth, and Sixth Amendment rights were violated by employees of the Portsmouth Police Department during two separate incidents on June 14, 2008 and September 9, 2008.[1] In addition, plaintiff alleges the state law claims of assault and battery, false imprisonment, invasion of privacy, intentional infliction of emotional distress, and negligence. Compl. By Order dated June 25, 2015, plaintiffs Fifth Amendment claims and his claims stemming from his September 9, 2008 arrest were dismissed with prejudice, [2] his complaint was filed, and the Clerk was directed to send Requests for Waiver of Service of Summons to the defendants. Dkt. No. 13.

         Sergeant Steven Johnson, the sole remaining defendant in this action, has filed a Motion for Summary Judgment with a supporting memorandum of law and exhibits, which is now pending, and has provided plaintiff with the notice required by Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) and Local Rule 7(K). Dkt. Nos. 39-41. Plaintiff has filed a "Response/Brief in opposition to Dkts. 39-40 Defendants Motion for Summary Judgment, " and a motion for discovery, Dkt. Nos. 50, 51, to which Johnson has responded with a rebuttal brief and an opposition motion respectively.[4] Dkt. Nos. 53, 55. After consideration of these submissions, the Motion for Summary Judgment will be granted, judgment will be entered in favor of the defendant, and plaintiffs Motion for Discovery will be denied as moot.

         I. Background

         Plaintiff alleges that between 1:30 a.m. and 2:30 a.m. on June 14, 2008 he received a phone call advising him that someone had been killed at a party at which he knew several guests. Compl. ¶ 10. Following the call, plaintiff was driven to the location of the party. Id. ¶ 13.

         On July 14, 2015, defendant Sgt. Steven Johnson returned an executed waiver of service to the Court, but the waivers for the other remaining defendants were returned, unexecuted, with the notation "unable to forward." Dkt. Nos. 18, 27. By Order dated May 25, 2016, the attorney general was requested to provide the last known forwarding addresses for the defendants whom had not been served, and plaintiff was advised that if service could not be effected those defendants would be dismissed without prejudice. Dkt. No. 27. Because service could not be effected on those defendants, they were dismissed without prejudice.

         According to plaintiff, there was no crime scene tape at the back of the residence. Dkt. No. 50 ¶ 2. Plaintiff encountered an unknown police officer at a back door and inquired about the condition of the individuals at the party, but he never touched the back door, attempted to enter the house, or attempted to walk around the officer. Compl. ¶¶ 16-17; Dkt. No. 50 at 8, ¶¶ 2, 20. When the officer requested that plaintiff identify himself, plaintiff stated he was "an acquaintance of individuals who were attending the party and the owner." Compl. ¶ 18. After the officer declined to answer plaintiffs questions, plaintiff stated "he would be on his way." Id. ¶ 19. The officer responded "no you come with me, " and brought plaintiff to his supervising officer, Sergeant Johnson, out on the street. Id. ¶ 21. Plaintiff did not see that officer or any other officer radio information to Johnson prior to being accompanied out to the street. Dkt. No. 50. According to plaintiff, when Johnson saw plaintiff he stated "Oh that's Mr. Booker I know him, put him in a car." Id. ¶ 22. The unknown officer then grabbed plaintiff and placed him in the back of a police car. Id. ¶ 23. In plaintiffs view, Johnson's statement concerning plaintiff "would refute any [proffered] rational reason" for directing plaintiff to be placed in a car, Id. ¶ 57, and the only reasonable inference that could "be drawn by plaintiffs actions was that he was concerned and was involved in innocent behavior." Dkt. No. 50.

         After plaintiff had been seated in the car for approximately thirty minutes, the unknown officer returned and placed plaintiff in handcuffs. Id. ¶ 24. Approximately thirty minutes later, another handcuffed individual was placed in the car with plaintiff. Id. ¶ 25. Approximately forty minutes after that, an officer conducted a "primer test" on both individuals. Id. ¶ 26. Plaintiff contends that he did not consent to the primer test. Id. ¶ 26. Although the other individual in the car was released following the primer test, plaintiff was advised that he was not free to leave, and he was eventually transported to the police station. Id. ¶ 25. At the station plaintiff was handcuffed to a wall for approximately one to two hours before an officer took him into an interrogation room at approximately 7:30 a.m. Id. ¶¶ 28-31. Plaintiff states that two officers interrogated him about the homicide without reading him Miranda rights and without informing him whether he had been charged with a crime. Id. ¶¶ 35-43. Plaintiff was released later that day. IcL¶45.

         Johnson contends that at approximately 2:40 a.m. on June 14, 2008, he responded to a call involving a gunshot wound. Dkt. No. 1, Ex. A. Part of Johnson's duties included supervising the separation and securing of witnesses, restricting access to the crime scene, and preserving physical evidence; thus, he "began directing officers to establish a crime scene by erecting crime scene tape." Dkt. No. 1, Ex. A; Dkt. No. 40 ¶¶ 7, 16. According to Johnson, officers on the scene secured the area outside the rear of the building by erecting crime scene tape "from the corners of the rear of the building to the edge of the fence, closing off ready access to that area." Dkt. No. 40 ¶ 18.

         When medics advised Johnson that there was a deceased victim in the residence who needed to be identified, he stated that he would try to make the identification. Dkt. No. 1, Ex. A. Johnson entered the residence, and he immediately recognized the deceased as Montale Smith, someone whom he had known to be "involved in the sale of narcotics" and whom he "had dealings with for many years." Dkt. No. 1, Ex. A; Dkt. No. 40, Ex. 1 ¶ 10. While inside the residence, Johnson noticed a rear door and he requested that some officers "respond to [the] rear of the location to secure it." Dkt. No. 1, Ex. A. As he was attempting to separate as many witnesses as possible into police vehicles, Johnson was advised "that a subject was attempting to enter the backdoor of the residence." Dkt. No. 1, Ex. A. More specifically, Johnson states that he "received a communication from a police officer located at the back of the residence that a person had come over the rear fence and hedge, and that person was attempting to enter the back door of the residence." Dkt. No. 40 ¶ 20; id* Ex. 1 ¶ 14. Plaintiff does not expressly contest that such information was communicated to Johnson. Rather, he contends that he did not commit the acts alleged and that any such allegations were not communicated to Johnson in his presence.[5] Dkt. No. 51. Following the communication, Johnson advised the officers to detain the subject and put him in a police vehicle until detectives arrived. Dkt. No. 1, Ex. A; Dkt. No. 40, Ex. 3 ¶ 16.

         Based on his twenty-one years of experience, Johnson believed it was "highly unusual and suspicious" for an individual to attempt to enter an active crime scene from the rear door, and such actions caused him to believe that plaintiff may have been involved in the shooting. Dkt. No. 40 ¶ 24; id., Ex. 1 ¶ 16. Upon seeing plaintiff in the police car, Johnson recognized him as someone whom Johnson had known to be involved in "narcotics related activities." Dkt. No. 40 ¶ 23; id, Ex. 1 ¶ 15. Notably, plaintiff had three prior convictions for possession with intent to distribute in Portsmouth, Virginia-on 12/1/1997, 1/10/2003, and 4/18/2007. Id., Ex. 3. Johnson believed that "he was acting lawfully in detaining [plaintiff] to allow investigators to interview him based on his attempted entry into the crime scene, the potential that his entry into the crime scene was to obstruct justice, and to allow detectives to assess... what involvement he may have had in the shooting." Dkt. No. 40, Ex. 1 ¶ 17.

         When the homicide detective in charge of the investigation arrived on the scene at approximately 3:50 a.m., Johnson turned the investigation over to him. Dkt. No. 40, Ex. 1 ¶ 18; Id. Ex. 2 ¶ 8. A short time later, the detective advised Johnson that consent to search the residence had been obtained from the leaseholder, who stated that plaintiff resided there. Dkt. No. 40, Ex. 3 ¶ 19; Dkt. No. 51 M. Luck Investigative Narrative. Johnson remained at the scene and participated in the search of an area of the residence where the following items were found: $5, 000.00 in cash, papers belonging to plaintiff, caplets containing a substance believed to be heroin, a firearm, and drug paraphernalia-which included empty caplets, a single-edged razor, screen strainers, rubber gloves, and a coffee grinder. Dkt. No. 40 ¶¶ 34, 39; id, Ex. 1 ¶ 19. As he recalls, the search occurred around 4:15 a.m. Id., Ex. 1 ¶ 19. Johnson did not touch or attempt to touch plaintiff at any time. Dkt. No. 40 ¶ 44; id, Ex. 1 ¶ 21.

         On September 9, 2008, plaintiff was arrested on a July 2008 indictment charging him with possession with intent to distribute heroin, possession of a firearm during the comission of a felony, and possession of a firearm by a known felon. Compl. ¶ 46; id, Ex. D. These charges arose out of evidence collected on June 14, 2008, as part of the homicide investigation by the Portsmouth Police Department. Following his September 9, 2008 arrest, plaintiff was again questioned about the homicide without being read his Miranda rights "and was instructed to allow [an officer] to swab his mouth to make sure he was not connected to the homicide." Compl. ¶¶ 47, 50. Plaintiff was never charged in relation to the homicide, and he eventually pleaded guilty to possession with intent to distribute heroin. See Booker v. Commonwealth, 61 Va.App. 323, 327, 734 S.E.2d 729, 731 (2012).

         Plaintiff contends that, as a result of his interactions with the police on June 14, 2008, and September 9, 2008, he has suffered from a "loss of trust in [police] officers to protect him instead of fabricating evidence, [and] involving him in crimes unjustified by any facts." Compl. ¶ 88. He further alleges that he fears he can "never go to any police or public officer for help because he could be ...

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