The opinion of the court was delivered by: Steven J. McAuliffe United States District Judge
Robert Byrnes brought this suit against the City of Manchester, its police department, and two of its police officers. He claims that the officers violated his federal constitutional and state common law rights when they stopped his vehicle and arrested him for driving under the influence of alcohol. Defendants say that the officers had reasonable suspicion and probable cause to support their actions and that, in any event, they are entitled to qualified immunity from suit.
When ruling on a motion for summary judgment, the court must "view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party's favor." Griggs--Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990). Summary judgment is appropriate when the record reveals "no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). In this context, "a fact is 'material' if it potentially affects the outcome of the suit and a dispute over it is 'genuine' if the parties' positions on the issue are supported by conflicting evidence." Int'l Ass'n of Machinists & Aerospace Workers v. Winship Green Nursing Ctr., 103 F.3d 196, 199--200 (1st Cir. 1996) (citations omitted).
The material facts are generally undisputed. To the extent they are contested, the court will, for the purpose of ruling on the pending motion for summary judgment, take the facts in the light most favorable to Byrnes, the party opposing summary judgment.
On Friday night, January 8, 2010, at around 11:30 p.m., Robert Byrnes, Matt Poulin, John Bixby, and Seth Manders exited Penuche's Grill, a well-known bar in Manchester, NH. They got into Byrnes's SUV, and drove to the 7-Eleven convenience store located at the corner of Bridge and Maple Streets. Poulin sat in the front passenger seat, Bixby in the rear seat behind him, and Manders in the back seat behind Byrnes, who was driving. Byrnes parked in front of the convenience store. The lot was well-lit.
Byrnes and Bixby exited the car and entered the store to buy snacks. Byrnes described the store as "not busy with customers," and he and Bixby "did not have to wait in line to make . . . purchases." Document No. 10-2, par. 7. Nevertheless, it is undisputed that cars were coming and going from the parking lot.
Parked to the left of Byrnes's car was an unmarked minivan occupied by Manchester police detectives Emmett Macken and Derek Sullivan. According to plaintiff's account of the facts, the minivan and Byrnes's car were parked "very close" to each other. The two officers were assigned to the street crime unit. To blend into the general population, they wore plainclothes - jeans, baseball hats, and sweatshirts. They were undercover to better observe and attempt to stop crimes in progress. Sullivan was in the driver's seat. Macken sat in the front passenger seat.
According to plaintiff's account, while Byrnes and Bixby were in the
store, Sullivan and Macken were looking over - "staring" - at Manders
and Poulin. Manders, who had his window rolled down, spoke to the
officers asking, "What, did you forget your i.d.?" Macken heard
Manders, but ignored him. Manders then said, "I heard we're supposed
to get a couple of inches [of snow]." According to Bixby (who had by
then exited the store and
re-entered the vehicle), Macken responded, "You don't know who you're
talking to. You better just walk away." Manders replied "We're
supposed to get a couple of inches of snow . . . . I heard you got a
couple inches."*fn1 Soon after, a woman exited the
store and walked in front of, or past, Byrnes's car. As she walked by,
Manders said to Macken "something along the lines of 'Not bad, huh?
Would you?,'" or "Hey, would you do her?" In response, Macken told
Manders that he was acting inappropriately. Manders responded, "What,
you want to suck my dick?" Or, as Bixby recalled, "Seth said something
to them about . . . suck his dick." Document No. 6-5, at 3.*fn2
Manders and the other passengers laughed while looking at the
officers. Manders did not make any threatening gestures, and the
officers did not fear for their own safety. The court credits
plaintiff's account that Manders was not hanging out of the car window when he made the
Macken conferred with Sullivan, and the officers radioed for a marked cruiser.*fn3 In their depositions and affidavits, the officers said they wanted to speak with Manders in order to head off trouble, but thought it best to do so with a uniformed officer present. The officers testified that they believed Manders had committed the offense of disorderly conduct by "trying to goad strangers into a fight," but it is undisputed that the officers did not intend to arrest Manders or any of the other passengers at the scene. Macken Aff., Document No. 6-3, par. 8. They said it appeared to them that Manders was looking for trouble and they were concerned that he might end up in a physical altercation with someone else. Macken testified: "[I]f . . . somebody told you to suck their dick that you didn't know . . . a lot of people out here at night in Manchester are going to react in a violent way probably towards that person . . . ."
While Sullivan was on the radio calling for the marked cruiser, Manders asked Macken if he had any jokes. Macken responded "Yup, we're about to." About the same time, Byrnes exited the store. He noticed the "exchange" between Manders and Macken. When he got into the car, Byrnes asked Manders what was going on. Manders told him that Macken "had a problem." Byrnes looked over to Macken. Macken said "Why don't you get out of here," to which Byrnes replied, "Oh, really, Nice mini van. You couldn't afford the expensive model?" Byrnes laughed, backed out of the parking space, and pulled up within eight feet from the minivan. Macken told him to "go bounce." Byrnes replied, "Yeah, bounce." Byrnes and his passengers laughed. Macken later testified that he did not believe the men were "engaging" him, but were just laughing. Byrnes then pulled out of the parking lot and onto Bridge Street, before the marked cruiser arrived.
Sullivan and Macken followed Byrnes's vehicle to identify it for the uniformed officer, Todd Leshney, who was responding to their call. Sullivan and Macken observed Byrnes turn off Bridge Street and onto Mammoth Road. Except for purportedly observing Byrnes's failure to use a turn signal,*fn4 the officers did not observe anything unusual about Byrnes's driving. Officer Leshney caught up and pulled onto Mammoth Road in the marked cruiser. He pulled Byrnes's vehicle over, approached the driver's side window, and asked Byrnes to produce his license and registration. While retrieving those documents, Byrnes asked Leshney why he had been pulled over. Leshney did not answer, but took the documents and walked back to the cruiser. When asked during his deposition whether he had observed anything that would have led him to believe that Byrnes was intoxicated, Leshney replied, "I didn't make any observations, no." That statement is consistent with his explanation that, if he thought a driver was drunk or otherwise impaired, he would not return to the cruiser, but would stay with the driver to investigate a possible DUI.
After Leshney walked away, Sullivan approached Byrnes and Macken approached Manders. Macken either pulled Manders out of the vehicle or asked him to exit. Manders appeared to be intoxicated. Macken demanded, "[D]id you tell me to suck your dick? How about now? How about now?" Macken then admonished Manders about the danger of speaking to people in the way he had spoken to the officers. "I explained that the way he was acting could have caused a fight or other violence if we had not been police officers, and that you never know who you may be dealing with." Manders apologized "because [he] felt as though maybe [he] brought this upon Rob [Byrnes] by telling [Macken] that joke." He told Macken, "I'm sorry. I didn't know you were an officer." Macken then ran Manders's name through dispatch to check for outstanding warrants. After learning there were none, Macken acceded to Manders's request that he be allowed to re-enter the vehicle to warm-up. Manders was not placed under arrest.
While Macken was dealing with Manders, Sullivan was at Byrnes's window. Byrnes testified that "he detected a strong odor of alcohol, and [he] observed Byrnes's eyes to be glossy and bloodshot and his speech to be slurred." When Sullivan asked Byrnes if he had been drinking, Byrnes said that he had had one beer that evening. Byrnes asked Sullivan why he had been pulled over, but Sullivan did not answer. Sullivan then left the side of the vehicle for a few moments. When he returned, he noticed that Byrnes was chewing gum. Byrnes later testified that he did not begin chewing gum in response to being pulled over, but, instead, had been chewing gum all evening. Sullivan then asked Byrnes three or four times to exit the vehicle to perform a field sobriety test. Byrnes refused each request, instead asking Sullivan repeatedly why he had been pulled over. According to Byrnes, Sullivan never answered his questions.
Sullivan ordered Byrnes to unlock the door, and, when Byrnes refused, Sullivan grabbed him by the jacket to pull him out of the car. But Byrnes relented and exited the vehicle of his own accord. Sullivan placed Byrnes under arrest for DUI. Sullivan later testified that Byrnes did not stumble when he exited the vehicle and did not exhibit any difficulty walking with his hands cuffed behind his back. He did not sway and could stand without losing his balance.
Byrnes was transported to the police station where he refused to submit to a breathalyzer test. Macken filled out the Department of Motor Vehicles report necessary to initiate a statutory suspension of Byrnes's driving privileges for refusal to take the breathalyzer test. Byrnes was booked, photographed, fingerprinted, and placed in a cell for approximately sixteen minutes. Macken later testified that, while Byrnes was at the station, he did not sway or stumble, he listened to Macken's commands, and was cooperative.
Upon his release from police custody, Byrnes was served with summonses for Driving While Intoxicated, N.H. Rev. Stat. Ann. ch. ("RSA") 265-A:2, and Failure to Use Directional, RSA 265:45. Approximately one hour elapsed from the time Byrnes was placed under arrest until the time he left the station. The City Solicitor subsequently nol prossed both charges.
Byrnes filed a fifteen count complaint in the state superior court, alleging defendants violated his Fourth and Fourteenth Amendment rights and various state laws. Defendants removed the case to this court, invoking federal question jurisdiction. The parties completed discovery and defendants filed motions for summary judgment as to all counts. In response, Byrnes withdrew seven counts*fn5 and objected to the motion as to Counts I, II, III, and IV (the federal claims) and Counts XI, XII, XIII, and XV (the state claims).
The Fourth Amendment guarantees "[t]he right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. CONST. amend.
IV. In Counts I and II of his complaint, Byrnes says the vehicle stop, the extension of that stop to investigate his possible DUI, and his arrest for DUI, all constituted unreasonable seizures in violation of his Fourth Amendment rights. Defendants say they are entitled, both on qualified immunity grounds and on the merits, to summary judgment in their favor with respect to Byrnes's Fourth Amendment claims. The court agrees.
Byrnes's Fourth Amendment claims address the three distinct seizures, and fall into two broad categories. In the first category are Byrnes's claims that the vehicle stop, the extension of that stop to investigate possible DUI (including the officers' request that he submit to field sobriety testing), and his arrest for DUI, were all unreasonable seizures, because they were not - measured objectively - supported by reasonable suspicion and/or probable cause. In the second category are claims that focus on the officers' alleged improper motives in effecting the stop and arrest. As to all three seizures, Byrnes claims the officers were motivated, not by probable cause or reasonable suspicion, but by a subjective desire to exact revenge for "injured pride" resulting from the interaction with Manders and Byrnes in the parking lot. Byrnes contends that he is entitled to prevail on these claims even if, objectively, probable cause or reasonable suspicion for the stop and arrest existed at the time.
Those claims falling within the second category are not viable. The Supreme Court, in Whren v. United States, 517 U.S. 806 (1996), unequivocally held that "[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis." Id. at 811, 813 (rejecting "the principle that ulterior motives can invalidate police conduct that is justifiable on the basis of probable cause to believe that a violation of law has occurred."). Whren's holding is grounded in the notion "that the Fourth Amendment's concern with 'reasonableness' allows certain actions to be taken in certain circumstances, whatever the subjective intent." Id. at 814 (emphasis in original).*fn6
Defendants, therefore, are entitled to judgment as a matter of law on all claims asserting that the officers' actions were unreasonable because they were motivated by a subjective desire for revenge.*fn7 See MacDonald v. Town of Windham, Civil No. 06-cv-245-JD, 2007 WL 4012581, at *6 (D.N.H. Nov. 16, 2007) (entering summary judgment in favor of defendants; plaintiffs' claim that arrest was motivated by desire to harass held irrelevant to the probable cause inquiry).
With respect to those claims alleging that the officers acted without reasonable suspicion or probable cause, the court finds, for the following reasons, that defendants are entitled to summary judgment.
B. The Stop "[S]topping an automobile and detaining its occupants constitute a 'seizure' within the meaning of [the Fourth Amendment], even though the purpose of the stop is limited and the resulting detention quite brief." Delaware v. Prouse, 440 U.S. 648, 653 (1979). Byrnes claims that when the officers stopped his car they engaged in an unreasonable seizure under the Fourth Amendment because the officers lacked reasonable suspicion (or probable cause) to believe that Manders had committed the offense of disorderly conduct (the basis of the stop). "Probable cause" arises from the "facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense." Kay v. New Hampshire Democratic Party, 821 F.2d 31, 34 n.6 (1st Cir. 1997); Burke v. Town of Walpole, 405 F.3d 66, 80 (1st Cir. 2005).
Defendants concede that they seized Byrnes when they stopped his vehicle, and they do not dispute Byrnes's standing to challenge the seizure's reasonableness. See United States v. Sower, 136 F.3d 24, 27 (1st Cir. 1998) (both driver and passenger may challenge the detention). They argue, however, that under Terry v. Ohio, 392 U.S. 1 (1968) and Prouse, 440 U.S. at 663, the stop was reasonable because they had an "articulable and reasonable suspicion," id., that Manders had committed the offense of disorderly conduct in the ...