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Hupp v. State Trooper Seth Cook

United States Court of Appeals, Fourth Circuit

July 25, 2019

TIFFANIE HUPP; R.H., a minor, by and through his next friend, Tiffanie Hupp; CLIFFORD MYERS, Plaintiffs - Appellants,
v.
STATE TROOPER SETH COOK; COLONEL C.R. JAY SMITHERS, Defendants - Appellees, and WEST VIRGINIA STATE POLICE, Defendant.

          Argued: April 2, 2019

          Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Thomas E. Johnston, Chief District Judge. (2:17-cv-00926)

         ARGUED:

          John Eric Campbell, CAMPBELL LAW, Denver, Colorado; Justin F. Marceau, UNIVERSITY OF DENVER, Denver, Colorado, for Appellants.

          Michael Deering Mullins, STEPTOE & JOHNSON PLLC, Charleston, West Virginia, for Appellees.

         ON BRIEF:

          Alene Anello, ALDF, Cotati, California, for Appellants.

          Robert L. Bailey, STEPTOE & JOHNSON PLLC, Charleston, West Virginia, for Appellees.

          Before GREGORY, Chief Judge, and KING, Circuit Judge. [1]

          GREGORY, Chief Judge

         Appellant Tiffanie Hupp was arrested for obstruction when she attempted to stop a state trooper from shooting her family's dog. After her husband video-recorded the incident, the state trooper entered the family's home, without consent and without a warrant, and seized several of the family's electronic devices. Hupp, her minor son, and her father-in-law filed suit against the state trooper, asserting various violations of the Fourth Amendment under 42 U.S.C. § 1983. The district court granted summary judgment to the state trooper and denied Appellants' motion for partial summary judgment. Because issues of fact exist, we affirm the denial of Appellants' partial summary judgment motion but reverse the grant of summary judgment in Trooper Seth Cook's favor and remand for trial on each of Appellants' claims.

         I.

         A.

         Buddy, a 13-year-old husky-Akita mix, lives with his owner, Appellant Clifford Myers, in Waverly, West Virginia. Buddy has been the source of contention between Myers and his neighbor David Wayne, who lives across the street.

         On May 9, 2015, the police were called out in response to a dispute earlier that day between the two men over the dog. West Virginia State Troopers Seth Cook and Sean Michael responded to the call. Trooper Cook was there to provide backup to Trooper Michael. Upon their arrival, the troopers spoke with Myers, who was in his front yard drinking a beer. The troopers then went across the street to speak with the Waynes. In speaking with the Waynes, Trooper Cook was told of the "ongoing problem" with Myers over Buddy, that Buddy was, in their mind, "vicious and had killed several of their cats and had chased the children." J.A. 302. Trooper Cook was also told that Buddy had chased Wayne's grandmother back into the house and that Wayne's grandfather had to take a stick with him when he checked the mail "to shoo the dog away." Id.[2]

         At the time, Myers had another dog, a black Labrador, on a chain in his front yard; Buddy was loose in the yard. According to Myers, Trooper Cook was aware that Buddy was not on a leash. Trooper Cook testified, however, that he did not see Buddy when he first went to speak with Myers. While the troopers spoke with the Waynes, Myers took the Labrador off the chain and placed the chain on Buddy. Myers later explained that it was mere happenstance that he switched the dogs; according to him, it was not because "the black lab was the friendlier of the two dogs." J.A. 82.

         After speaking with the Waynes, the troopers returned to Myers's house. Trooper Michael asked Myers for his identification. Myers asked his daughter, Lindsey, to retrieve it for him. As Lindsey headed back toward the house to retrieve the ID, Trooper Cook followed her into Myers's front yard. Trooper Cook testified that he followed Lindsey "because of the people gathering in the door [of Myers's home] and just a general, again, situation awareness." J.A. 208. At that point, Myers had six of his family members at his house, and Trooper Cook wanted to "have a little bit of personal contact with them to, again, determine their nature" and determine if "there were potential other people that [he] needed to be paying closer attention to." J.A. 56, 207-08. Trooper Cook also testified that, due to the slope of Myers's front yard, he wanted to "get closer to where [he] could see better than from down at the road in the driveway looking up at a position of tactical advantage over [him]." J.A. 208.

         Video evidence captured much, but not all, of what happened next.[3] A dog barked as Trooper Cook walked into Myers's yard. J.A. 610 at 1:17-1:20. Trooper Cook, who was trained to identify and "handle" aggressive dogs, took a few steps back after seeing Buddy. J.A. 189, 610 at 1:20-1:22. He then pulled his gun out and, holding it with his left hand, pointed it at Buddy. J.A. 610 at 1:23-1:26. Hupp, Myers's 113-pound daughter-in-law, ran down the front yard from near the house toward Trooper Cook. Id. at 1:26-1:27. She stood with her left side next to Trooper Cook's right side, her body perpendicular to Trooper Cook. Buddy was at Hupp's right. Hupp's arms were at her side and her hands were visibly empty. Id. at 1:26-1:28. Within seconds of Hupp's arrival, Trooper Cook grabbed Hupp's left arm with his right hand. Id. at 1:29. A brief struggle ensued during which Trooper Cook turned to his left, Hupp moved to her right and directly facing Trooper Cook, all while the two struggled for two seconds with Trooper Cook's grasp on Hupp's arm. Id. at 1:29-1:30. As Trooper Cook and Hupp spun around, Hupp fell to the ground. Id. at 1:31. When Hupp stood up, Trooper Cook grabbed her arms from behind and walked her to the police car parked a few feet away. Id. at 1:34-39. Bending Hupp over the hood of the police car, the troopers handcuffed her. Id. at 1:40-2:05.

         Though not depicted clearly in the video, Trooper Cook testified that after seeing Buddy as he entered the yard, he yelled for someone to control the dog or to "get a hold of your dog." J.A. 201, 569-70. According to Trooper Cook, he did not at first notice that Buddy was on a chain. Hupp testified that she ran toward Trooper Cook both in response to Buddy's barks but also in response to the trooper's order to control the dog.

         Also not clear from the video is what was said by Trooper Cook and Hupp in their brief encounter. Trooper Cook testified that he told Hupp at least twice to back away and that her response was that he could not tell her what to do on her property. Trooper Cook also maintained that Hupp was "cursing" and "screaming profanities" at him. J.A. 210, 509. Hupp testified, on the other hand, that she did not hear any of Trooper Cook's orders and simply told him, "Whoa, whoa, don't do that, stop." J.A. 121.

         Hupp's husband, Ryan, recorded the incident with his cell phone from inside Myers's home. As Hupp was being arrested, she asked Ryan, "Did you get that on video?" J.A. 86. Ryan answered, "Don't worry, babe. I've got that shit." J.A. 244. Trooper Cook later testified that he understood that statement to mean that Ryan "was glad he had" the video and "wouldn't get rid of it for his-his possession of it." J.A. 247.

         Upon learning that a video had been recorded, Trooper Cook "stepped in" to Myers's home without a warrant and without consent. J.A. 237, 258. He seized four electronic devices: a child's tablet and three cell phones, including Ryan's phone that recorded the incident. J.A. 237, 572.[4] Trooper Cook explained in his deposition that it is his practice to seize electronic recording devices without first obtaining a warrant if he believes that someone has used the device to capture evidence. The State Police retained the devices for a month before returning them.

         B.

         Hupp was charged with obstruction under West Virginia Code § 61-5-17(a). She was arraigned, and after the magistrate judge concluded that probable cause existed for her arrest, she was released on bond. Following a jury trial in the Wood County magistrate court, Hupp was acquitted.

         Appellants Hupp, Myers, and Hupp's minor son-who witnessed his mother's arrest-filed suit against Trooper Cook, West Virginia State Police Colonel C.R. "Jay" Smithers (the superintendent), and the West Virginia State Police. Appellants brought several claims for violation of their constitutional rights under 42 U.S.C. § 1983 and parallel state law claims. Appellants later amended their complaint, bringing claims against the police officers in their individual and official capacities and against the West Virginia State Police. The district court granted in part a motion to dismiss, dismissing the claims against the West Virginia State Police and those brought against the police officers in their official capacities. As a result, claims remained against only Trooper Cook and Colonel Smithers in their individual capacities. The claims against Trooper Cook included section 1983 claims for false arrest, excessive force, malicious prosecution, unlawful search of Myers's house, unlawful seizure of the electronic devices, and unlawful seizure of Buddy; and state law claims for malicious prosecution, intentional infliction of emotional distress (outrage), and battery. A claim for supervisory liability under section 1983 also remained against Colonel Smithers.

         Trooper Cook and Colonel Smithers moved for summary judgment on all of the remaining claims, and Appellants moved for partial summary judgment on the false arrest, excessive force, and unlawful search and seizure claims. The district court granted summary judgment to Trooper Cook and Colonel Smithers and denied summary judgment to Appellants. The district court found that Trooper Cook is entitled to qualified immunity on the false arrest, excessive force, and malicious prosecution claims brought under section 1983 as well as on the common law malicious prosecution claim. The district court granted summary judgment to Trooper Cook on the outrage and battery claims as well. Because the court found that Trooper Cook did not violate Hupp's constitutional rights, it granted summary judgment to Colonel Smithers on the one remaining claim of supervisory liability against him.

         The district court also granted summary judgment to Trooper Cook on the unlawful search and seizure claims. The court concluded that exigent circumstances justified the search of Myers's home and the seizure of the electronic devices because an objectively reasonable officer would have believed that Myers's family members would destroy or conceal the video evidence before a warrant could be obtained. With respect to the claim of unlawful seizure of Buddy, the court found that Trooper Cook's actions did not "meaningfully interfere[ ]" with Appellants' "possessory interest in Buddy." J.A. 636.

         Appellants timely appealed the grant of summary judgment on the claims for false arrest, excessive force, malicious prosecution, unlawful entry, and unlawful seizure of the electronic devices. Appellants also appealed the denial of summary judgment in their favor on the Fourth Amendment claims related to the entry of Myers's home and seizure of the electronic devices. Appellants did not appeal the grant of summary judgment on the supervisory liability claim, claim for unlawful seizure of Buddy, or the state law claims of outrage and battery.

         The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(3), and 1367, and we have ...


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