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Crystal Moses v. Mark Mele

April 24, 2012


The opinion of the court was delivered by: Paul Barbadoro United States District Judge

Opinion No. 2012 DNH 074


On July 15, 2008, Crystal Moses accompanied her son's girlfriend, Catherine Sims, to the Lebanon police department. When Officer Mark Mele sought to speak to Sims alone, Moses protested and the situation became heated. After Moses escorted Sims out of the police station and back to their car in the parking lot, she was arrested for witness tampering. She was subsequently prosecuted. Moses now brings suit against Officer Mele for unlawful arrest under the Fourth Amendment and malicious prosecution under New Hampshire law. Officer Mele has filed a motion for summary judgment. For the reasons stated below, I grant that motion.


A. Facts

Sims and her boyfriend, Kyle Moses ("Kyle"),*fn1 were living together in the house of Kyle's mother, Crystal Moses ("Moses").

Pl.'s Dep. at 14, Doc. No. 29-4. On July 12, 2008, Kyle and Sims were involved in an automobile accident in Lebanon, New Hampshire. Kyle called his mother, who arrived quickly at the location of the crash. Id. at 12.

Officer Mele was dispatched to the accident. Based on information that he gathered at the scene, Officer Mele arrested Kyle for his conduct before, during, and after the accident.*fn2

On July 15, Officer Mele called Sims. He told her that the statement she had given about the accident differed from Kyle's statement, and he asked if she could come down to the police station to answer some questions. Sims agreed to go, but on the condition that Moses could accompany her and be present during questioning.*fn3 Probable Cause Hr'g at 5, Doc. No. 31-6.

Moses drove Sims to the station and sat with her in the lobby. When Officer Mele approached and asked Sims to follow him to an interview room, Moses stood up to go with Sims. Officer Mele stopped Moses, telling her: "[Y]ou're going to have to stay here. I'm going to interview [Sims] alone." Def.'s Dep. at 99, Doc. No. 35. Moses registered her displeasure, and Officer Mele then asked Sims if she would speak with him alone "for one second." Id. Moses did not object, and Sims stepped into a hallway with Officer Mele.

Officer Mele reminded Sims that her statement about the accident contained inconsistencies, and he told her that he would not speak to her with Moses in the room. He warned her that Moses had accompanied her not to protect her interests, but rather to safeguard the interests of her son. Sims responded that she would not speak to Officer Mele alone and would have to call her mother. Officer Mele cautioned Sims against leaving the police station, and threatened to put out a warrant for her arrest if she left. Probable Cause Hr'g at 6, Doc. No. 31-6. Sims said that she "had to go tell [Moses] what the situation had turned into." Id. Moses, who could see the conversation through a glass divider, observed that Sims was becoming distressed and was starting to cry.

When Sims rejoined Moses in the lobby, Moses stated to her, "I don't think you have to talk to him alone and [] you should either call your mother or leave." Pl.'s Dep. at 18-19, Doc. No. 31-4.*fn4 Moses asserts that while she and Sims were speaking, Officer Mele began to "talk[] at [Sims] very assertively and somewhat aggressively and telling her that if she left he was going to arrest her and that she needed to speak with him and things to that effect." Id. at 19. At that point, Moses put her arm around Sims's back, and escorted Sims out of the station. Id. at 20. A surveillance video of the two walking out of the station shows Moses's arm around Sims, and although the video is quite choppy, no pushing or untoward force is apparent.

As Moses ushered Sims toward her Jeep in the parking lot, Officer Mele followed a few steps behind. Upon reaching Moses's car, Sims immediately entered it and sat down in the front passenger-side seat. The door next to her remained open. Moses stood adjacent to the car, holding the open door as she spoke with Officer Mele. In her deposition, Moses explained that her intent was "to get outside and keep [Officer Mele] from badgering [Sims] until her mother came and could comfort and support her." Pl.'s Dep. at 27, Doc. No. 31-4. Officer Mele continued to "badger" the two women while they were outside, however, repeatedly telling Sims that she should not leave the premises. Moses told Sims that they "should leave because the officer was being a threatening bully and obviously trying to manipulate her." Pl.'s Inter. #15, Doc. No. 31-8.

After approximately a minute outside with Moses and Sims, Officer Mele called for assistance. Several officers responded, rapidly emerging from the nearby police station. Moses had closed the passenger door just prior to the officers' arrival, but reopened it as they reached her car. Officer Mele directed the officers to separate Moses from Sims and to detain Moses. Officer Mele explained to his supervisor, Corporal Gerald Brown, that "he wanted to speak alone with Sims but Moses told Sims she could not and then Moses [] physically escorted Sims out of the station."*fn5 Brown Dep. at 9, Doc. No. 34-5. Based on that information, Corporal Brown believed that there was probable cause to arrest Moses for witness tampering, and he instructed another officer to take her into custody. Id. at 8-9.

After Moses was taken into the station for processing, Officer Mele and others continued to talk to Sims. Sims's mother, who had been called at some point during or just after the preceding events, eventually arrived at the department and sat with Sims during an interview. Mele Dep. at 109, Doc. No. 35; Probable Cause Hr'g at 21-22, Doc. No. 31-6. Before she left the station, Sims also provided and signed a short written ...

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