police4aqi

Police, The Fourth Amendment, Qualified Immunity

The Old He Said / She Said

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Case: Sherman v. Holt, Dist. Court, ND New York 2013

What happened:

The following facts are not contested. At approximately 10:45 p.m. on May 10, 2011, plaintiff and her boyfriend, Adnan Durak (“Durak”), were sitting in plaintiff’s automobile in the parking lot of Mohawk Valley Community College (“MVCC”) in Utica. They were approached by defendant Holt, who was then operating as part of a law enforcement detail addressing a recurring problem with young people using the MVCC parking lot after hours for illicit purposes. After some interaction with plaintiff and her boyfriend, Officer Holt ordered plaintiff out of the driver’s seat of the car, placed her in handcuffs, and put her in the back of his patrol vehicle. Officer Holt then ordered Durak out of the vehicle and conducted a search of the passenger compartment, which resulted in the seizure of a “roach” containing marijuana remnants from the front ash tray, and, from plaintiff’s purse, a plastic bag with cut up drinking straws and white powder residue, which was later determined to be cocaine. Other officers eventually responded to the scene, and the plaintiff’s handcuffs were removed. She was released and allowed to drive away from the scene after receiving an appearance ticket for possession of marijuana. On May 18, 2011, following laboratory analysis of the residue in the baggie found in her purse, plaintiff was also charged with misdemeanor cocaine possession. Both charges were ultimately adjourned in contemplation of dismissal.

The parties otherwise offer widely divergent versions of the circumstances surrounding this incident. During his deposition, defendant Holt testified that he drove his marked police vehicle to a position nearby plaintiff’s parked vehicle in the MVCC lot. (Holt. Dep. at 55-57).[2] He observed that plaintiff, in the driver’s seat, looked at the officer as he approached her vehicle on foot, in his police uniform. The plaintiff then bent over and reached towards the center console of the vehicle in a “furtive” manner, apparently trying to conceal or grab something. (Holt Dep. at 55, 62-68). When Officer Holt reached the front driver’s window, which was rolled down, he smelled “burnt marijuana,” although he did not see any smoke in or around the vehicle. (Holt. Dep. at 58-59, 73, 75).

According to defendant olt, plaintiff became belligerent towards him “right off the bat,” and tried to reach towards the floor area next to the middle console, where her purse was located, notwithstanding the officer’s directions for her to stop doing that. (olt Dep. at 79-81). After repeatedly ignoring the officer’s orders not to keep reaching for her purse, defendant Holt opened the driver’s door, grabbed plaintiff’s left arm, and guided her out of the vehicle in an effort “to gain her attention/compliance.” (Holt Dep. at 82-83, 86, 88-94).

Once she was out of her vehicle, plaintiff reached into her sweat jacket pocket, causing defendant Holt to grab her arm again. The officer thinks he probably patted down that pocket, making sure plaintiff did not have a weapon. (Holt Dep. at 96-98, 100-01). During this incident, plaintiff was yelling at the officer not to touch her, and she tried to push his hand away when he went to grab her arm. (Holt Dep. at 89-90, 98). Defendant Holt thereafter handcuffed plaintiff behind her back and placed her in the rear seat of his patrol vehicle. Officer olt testified that he restrained plaintiff in this way because, based on his detection of the odor of marijuana, he was going to search the passenger compartment of the vehicle and its passengers; plaintiff was not compliant, and, unless she was restrained, she would have impeded his search and further investigation. (Bolt Dep. at 99-102, 104). Officer Holt described his use of force against plaintiff as “slight.” He denied striking, kicking, pushing, or pulling her, or twisting her arms behind her back; and he testified that the plaintiff did not complain of pain or sustain any apparent injury during the incident, including while he handcuffed her. (Holt. Dep. at 87, 88, 90, 93-94, 103, 105).

Defendant Holt testified that, after he discovered marijuana in plaintiff’s vehicle, Durak advised him that the plaintiff had been smoking marijuana inside the vehicle, and that Durak suspected the marijuana belonged to her. Toward the end of the Officer Holt’s encounter with plaintiff, she purportedly admitted to the officer that she had smoked marijuana in her vehicle, and that the marijuana found therein belonged to her. (Holt Dep. at 113-14, 122).

The plaintiff and her boyfriend present a radically different version of what occurred on the evening of May 10, 2011. They testified that they were en route to Durak’s home when plaintiff realized she could not locate her cell phone. They stopped under a street light in the MVCC parking lot, where both had been students, so plaintiff could look for her phone. (Sherman Dep. at 30-31, 35, 71, Dkt. No. 29-6; Durak Dep. at 9-12, Dkt. No. 29-9). Plaintiff got out of her car, found the cell phone under the front seat, and then got back in the car, prepared to complete the trip to Durak’s home. (Sherman Dep. at 36, 68-69; Durak Dep. 12).

Before plaintiff and Durak could leave, they were approached by Officer Holt, who asked them, “What the fuck are you guys doing here?” (Sherman Dep. at 36, 37; Durak Dep. at 13). Plaintiff explained they were stopped so she could look for her cell phone and defendant Holt told her, “Don’t fucking lie.” (Sherman Dep. at 37-38, Durak Dep. at 13). Officer Holt began to search around the driver’s side door and plaintiff said to him, “You can’t do that.” (Sherman Dep. at 56; Durak Dep. at 13). Defendant Holt then ordered plaintiff out of the car, and plaintiff reached for her purse, purportedly so she could produce her driver’s license. (Sherman Dep. at 56-57; Durak Dep. at 13-14). Plaintiff testified that she was scared, and may have raised her voice, but she did not use profane language, and she complied with all of Officer Holt’s directions. (Sherman Dep. at 73-74).

Defendant Holt grabbed plaintiff’s left arm, cursing, and pulled her out of the car “violently.” (Sherman Dep. at 57-58; Durak Dep. at 14). Plaintiff complained that defendant Holt was hurting her, and asked if she could call her mother, which the officer did not allow. (Sherman Dep. at 58-59; Durak Dep. at 15). Officer Holt then pushed plaintiff’s chest against the rear spoiler of her car, put her in a restraint, roughly handcuffed her behind her back, and put her in the back of his police vehicle. (Sherman Dep. at 59, 60). Durak testified that, at this point, Officer Holt yelled at plaintiff that she was “under arrest.” (Durak Dep. at 15).

As the officer handcuffed her, plaintiff heard a crack as her wrist snapped and exclaimed that he was really hurting her. (Sherman Dep. at 59; Durak Dep. at 15). Although Holt refused to release her from the handcuffs notwithstanding plaintiff’s complaints that they were hurting her, other officers eventually arrived and loosened, and then later removed the cuffs. (Sherman Dep. at 60, 62-63). While the other officers were present, officer Holt stated that plaintiff pushed him; but both the plaintiff and Durak stated that she did not push the officer. (Sherman Dep. at 62; Durak Dep. at 20).

Both Sherman and Durak denied that they smoked marijuana in plaintiff’s car. (Sherman Dep. at 37, 41; Durak Dep. at 13). Both denied knowing that there was a “roach” of marijuana in the car, and plaintiff testified that she could not smell marijuana in the car.[3] (Sherman Dep. at 37; Durak Dep. at 13, 17). Durak denied the marijuana found in the car belonged to him, but testified that he did not tell Officer Holt that it belonged to the plaintiff. (Durak Dep. at 19).

Decision: No qi for Officer Holt because he may not have actually smelled marijuana.

Written by Burgers Allday

December 20, 2013 at 8:16 pm

Posted in Uncategorized

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