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Varner v. Roane

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

February 28, 2019

LOREN VARNER, Plaintiff,
v.
MICHAEL ROANE, Defendant.

          MEMORANDUM OPINION

          ELIZABETH K. DILLON UNITED STATES DISTRICT JUDGE.

         Plaintiff Loren Varner and defendant Michael Roane, an Augusta County Deputy Sheriff, had an encounter that Varner's complaint characterized as a seizure of his person. Ruling on a motion to dismiss, however, the court explained that the complaint's allegations did not support that there was a seizure, but only that Varner and Roane had a consensual encounter. The court's ruling regarding the consensual nature of the encounter left in the case only Varner's claim that Roane violated the Fourth Amendment in searching Varner's truck during that encounter. Varner's complaint alleges that a drug dog used to search Varner's truck was instead “going over to nearby police cars and alerting to drugs in those police cars.” (Compl. ¶ 27, Dkt. No. 1.) Then, Varner contends that one of Roane's “subordinate officers” slapped on the fender of the truck, and the dog jumped up on that area of the truck. Varner asserts that the dog's jumping was an “alert” and that Roane's subordinate purposefully caused that “false alert” by slapping the truck. As to Roane, Varner asserts that Roane was present and that he knew, based on his experience with drug-sniffing dogs, that the alert was false, but Roane nonetheless used that alert to claim there was probable cause to search Varner's truck. The truck was searched, and it is undisputed that no drugs were discovered. (See generally Compl.)

         Now pending before the court is Roane's summary judgment motion. (Dkt. No. 76.) As discussed in more detail herein, the undisputed facts in the summary judgment record fail to support the complaint's key allegations. Instead, the court concludes that there is no evidence from which a reasonable jury could find that the dog's alert was manufactured. Indeed, the undisputed facts establish that the dog alerted by pressing his nose against the truck, not by jumping. There are no facts that support a conclusion that Roane-or anyone else- manufactured that alert or knew it was manufactured. Nonetheless, that positive alert gave Roane and the other officers probable cause to search Varner's truck. For this reason, discussed in more detail below, the court finds that no reasonable jury could find in Varner's favor on his claim that his Fourth Amendment rights were violated by the search.

         Varner has also filed a motion to dismiss his complaint without prejudice. (Dkt. No. 88.) The court will deny this motion as moot in light of its ruling on summary judgment. See also infra Section II.C. (explaining that even if the court were to address that motion, it would deny it). All other pending motions also will be denied as moot.[1] See infra Section II.D.

         I. BACKGROUND

         After the court's ruling on the motion to dismiss (Dkt. No. 23 (Oral Order); Hr'g Tr. 38, Dkt. No. 26), there is one claim remaining in this case: Varner's claim, brought under 42 U.S.C. § 1983, that the search of his truck violated the Fourth Amendment because it was based on a dog's “false ‘drug alert'”-an alert that Roane allegedly “commanded and condoned.”[2] The court sets forth the pertinent facts below, taken in the light most favorable to Varner.

         According to Varner, he was eating at the Tailgate Grill in Waynesboro on January 11, 2017, when Roane entered and directed him to come out into the parking lot. Once out in the parking lot, Roane asked Varner to empty out his pockets. Except for a brief pat-down, Roane did not touch Varner.[3] Immediately following the pat-down, Varner, Roane, and other officers were in the parking lot of the Tailgate. Roane advised Varner that a drug dog was going to be run around Varner's vehicle, and Varner testified in his deposition that he was not worried about the free-air sniff and did not object. (Varner Dep. 119, Dkt. No. 77-2.) A Waynesboro police officer and K-9 officer, Jeremy Johnson, and his trained drug-sniffing dog, Zeke, were already on scene, and they conducted the free-air sniff.

         While the dog was performing the free-air sniff, Varner, Roane, and Officer C.J. Taylor were all standing together.[4] They were located up to 50 feet away from Varner's truck, on the driver's side of the vehicle, and they never got any closer to his truck while the free-air sniff was conducted. According to Varner, neither he nor Roane said anything to each other during the time the dog was doing its work. Varner also admitted during his deposition that neither of the officers “were giving any direction or instruction to the dog or the canine officer.” (Varner Dep. 138.)

         Thus, he is not making any assertion that Roane took any action during the free-air sniff to communicate with or command the canine officer or Zeke to do anything.

         According to Johnson's undisputed affidavit testimony and information he provided to dispatch, Zeke alerted to the presence of drugs on the passenger-side door. During the first few times Johnson led Zeke around the exterior of the vehicle, “each time Zeke exhibited changes of behavior at the passenger side door of the vehicle that with my training and experience with him I recognized as Zeke signifying a positive alert for drugs.” Then, on the last lap, Zeke gave a positive alert for drugs by “actually pressing his nose” on the door, while “all four of his paws remained on the ground.” Johnson avers that after Zeke made his final indication of a positive alert, Johnson verbally conveyed that information to the task force officers, and also advised dispatch. Johnson flatly denies that he or any other officer on scene interfered with or influenced Zeke to alert. (Johnson Aff. ¶¶ 1-6, Dkt. No. 77-1.)

         Notably, Varner testified that, because he was standing a distance away on the driver's side of the vehicle, he could not see the dog's actions while on the passenger side of the truck. (Varner Dep. 125-26, 135.) But Varner's account of what he observed during the free-air sniff is slightly different. First, after each of the first four times that Johnson and Zeke had gone around the truck and arrived at the rear of it, Zeke veered away from the truck toward the trunk of the Waynesboro marked police car and put his paws on the police car. After each time, Johnson then pulled the leash, got Zeke off of the police car, and circled the truck again. (Varner Dep. 130-32.) On the dog's final trip around Varner's truck, Varner testified that Johnson smacked the fender (where the hood met the fender) on the passenger side, [5] and the dog then jumped up on the fender, which Varner is now characterizing as an “alert.” It was after this that Roane told Varner the dog had alerted and that the officers were going to search his truck. (Varner Dep. 135-36.) As noted, no drugs were found.

         II. DISCUSSION

         A. Summary Judgment Standard

         Under Rule 56, summary judgment is proper where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine issue of material fact exists only where the record, taken as a whole, could lead a reasonable jury to return a verdict in favor of the non-moving party. Ricci v. DeStefano, 557 U.S. 557, 586 (2009). In making that determination, the court must take “the evidence and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving ...


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