United States District Court, E.D. Virginia, Alexandria Division
C. Cacheris United States District Judge
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. 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,  his complaint was filed, and the Clerk was
directed to send Requests for Waiver of Service of Summons to
the defendants. Dkt. No. 13.
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. 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.
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.
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.
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.
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.
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.
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. 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.
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.
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
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).
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