Aubrey v. Ermatinger

STEVEN B. AUBREY and BRIAN E. VODICKA, Plaintiffs, v. ROBERT L. ERMATINGER, JR. and SCOTT ROBERT SAYERS, Defendants.

CIVIL ACTION NO. 3:19-CV-0056-B

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

December 7, 2020

MEMORANDUM OPINION AND ORDER

Before the Court are Plaintiffs Steven Aubrey and Brian Vodicka's Motion for Partial Summary Judgment (Doc. 163) and Defendants Robert Ermatinger, Jr. and Scott Robert Sayers's Motion for Summary Judgment (Doc. 167). These cross-motions require the Court to determine whether Ermatinger and Sayers are entitled to qualified immunity on Aubrey and Vodicka's 42 U.S.C. § 1983 claims arising from Ermatinger and Sayers's preparation of several search-warrant affidavits and warrantless entry into Aubrey and Vodicka's home.

For the reasons explained below, Ermatinger and Sayers are entitled to qualified immunity on the § 1983 claims premised on the search-warrant affidavits. However, genuine issues of material fact exist regarding whether Ermatinger and Sayers are entitled to qualified immunity on the § 1983 claims premised upon their warrantless entry. Accordingly, the Court DENIES Aubrey and Vodicka's motion (Doc. 163) and GRANTS IN PART and DENIES IN PART Ermatinger and Sayers's motion (Doc. 167). Further, the Court OVERRULES all evidentiary objections presented in the briefing as moot.

I.BACKGROUND

A. Factual Background

This is a dispute between former suspects in a murder investigation and the investigators following their trail. The story begins on May 13, 2016, when firefighters responded to a reported structure fire and found the burned remains of Dallas attorney Ira Tobolowsky in the garage of his home. Doc. 169-1, Defs.' App., 57. A responding arson investigator called Sayers, a homicide detective at the Dallas Police Department, to the scene. Id. Sayers claims that upon arrival, he spoke with Tobolowsky's wife, who identified Aubrey and Vodicka as individuals who might have wanted to kill Tobolowsky. Id. at 58. Tobolowsky, she explained, was involved in contentious litigation with Aubrey and Vodicka. Id.¹ Because the investigation was initially classified as an arson investigation, arson investigators "took primary responsibility" and obtained two search warrants for Aubrey's and Vodicka's cell-phone records from May 10, 2016, to May 16, 2016. Id. at 58; see id. at 1-3, 5-7.

Subsequently, the investigation into Tobolowksy's death was reclassified as a murder investigation led by Ermatinger, another Dallas Police Department homicide detective, whom Sayers assisted. Id. at 66. The arson investigators provided the cell-phone records obtained through the search warrants, as well as the information they had learned thus far, to Ermatinger and Sayers. See id. at 58-59, 66-67. Specifically, Ermatinger and Sayers state that they learned about a lawsuit between Aubrey and his mother in which Tobolowsky represented Aubrey's mother, id. at 58, 66,which was later dismissed with prejudice, Doc. 179, Pls.' App., 94, as well as a subsequent defamation lawsuit filed by Tobolowsky against Aubrey and Vodicka. Doc. 169-1, Defs.' App., 58, 66.

Ermatinger and Sayers also state that during the investigation, they spoke with members of Tobolowsky's family, who confirmed the "contentious litigation" between Tobolowsky and Aubrey and Vodicka. Id. at 59, 66-67. Tobolowsky's family members, according to Ermatinger and Sayers, explained that "Aubrey had made multiple references to 'jihad'" during the lawsuit, and as a Jewish family, Tobolowksy's family (as well as Tobolowsky) believed these references constituted "antisemitic threats to [Tobolowsky's] safety and life." Id. at 59, 67.²

On May 18, 2016, Ermatinger and Sayers attended a hearing in the pending defamation lawsuit in order to speak with Aubrey and Vodicka, but they did not appear. Doc. 169-1, Defs.' App., 67. After the hearing, Ermatinger could not locate Aubrey or Vodicka and received information from the U.S. Marshal's Service that "Aubrey's credit card had been used at a truck stop in Belton, Texas, a town roughly two hours south of Dallas." Id. at 68. Additionally, Ermatinger found out that Aubrey's credit card was used to book a hotel room in Dallas "under the name of Alexandria Krot." Id. His investigative notes suggest that he received this information around 6:30 p.m. on May 18, 2016. Doc. 165, Pls.' App., 30.

Ermatinger and Sayers claim that based on the information they had received throughout the investigation, they concluded that Aubrey and Vodicka "had a motive to harm Tobolowsky," "appeared to be deliberately avoiding the detectives," and "may have information or involvementwith the murder." Doc. 169-1, Defs.' App., 60, 68. Further, they suspected that Tobolowsky's murderer suffered burns, because the fire "occurred within a small, confined space in Tobolowsky's garage[.]" Id. In light of this suspicion, on May 18, 2016, Ermatinger applied for and obtained three search warrants: two permitted detectives to search Aubrey's and Vodicka's bodies for injuries and burns, and the other authorized a search of Aubrey and Vodicka's residential apartment. Id.; see Doc. 165, Pls.' App., 7-17. Ermatinger's notes suggest he obtained the warrants around 9:00 p.m., and thereafter, around 10:00 p.m., he found out that a woman named Alexandra Krot did indeed check in to the hotel room booked with Aubrey's credit card. Doc. 165, Pls.' App., 30.

The following day, detectives located Aubrey and Vodicka and executed the search warrants. Doc. 169-1, Defs.' App., 68. When the detectives conducted the search of Vodicka's person, Vodicka consented to an interview with Ermatinger, during which he explained that he and Aubrey were a married couple that had been "together for twenty years[.]" Id. at 61, 68. Vodicka also stated that he had acquired immunodeficiency syndrome (AIDS) and bipolar disorder, and that he spent two weeks receiving in-patient treatment at a mental health facility. Id. Additionally, when Ermatinger asked Vodicka about Aubrey's previous "jihad" references, Vodicka stated that Aubrey sent one email to his mother in 2009 that contained a "jihad" reference. Id. at 61, 69. Vodicka also asserts that during the interview, he informed Ermatinger that Aubrey had a dermatologist's appointment "just hours after the fire and Tobolowsky's death . . . ." Doc. 179, Pls.' App., 124.

About one week after the interview, Ermatinger and Sayers received information that there were holes drilled in Tobolowsky's fence "allow[ing] someone in the adjacent alley to watch the Tobolowskys going to and from the garage without being seen[.]" Doc. 169-1, Defs.' App., 61, 69.Further, Ermatinger and Sayers claim that another detective "recalled seeing a drill and drill bits at [Aubrey and Vodicka's] apartment" during the May 19 search. Id.

After receiving this information, Sayers applied for and executed four more search warrants: another warrant to search Aubrey and Vodicka's residential apartment; a warrant to search the apartment Aubrey used for his massage business; and two warrants to obtain Aubrey's and Vodicka's cell-phone records. Doc. 169-1, Defs.' App., 21-24, 27-30, 33-35, 37-39.

Sayers executed the two apartment searches on May 25, 2016. Id. at 61. Between these searches and the first search of Aubrey and Vodicka's residence, detectives seized three laptops. Id. at 61-62. Sayers thus obtained another warrant to subject the seized laptops to forensic examination. Id. at 41-44. Finally, on October 5, 2016, Sayers obtained a warrant requiring Google, Inc. to produce data-location records associated with Aubrey and Vodicka's Google accounts. Id. at 46-52. In all, there are nine search warrants from the murder investigation relevant to this Order, which are listed below:³

Author

Date

Subject of Warrant

Location in Doc. 169-1

Ermatinger

5/18/2016

Aubrey's Person

8-10

Ermatinger

5/18/2016

Vodicka's Person

12-14

Ermatinger

5/18/2016

Aubrey and Vodicka's Residence

15-17

Sayers

5/25/2016

Aubrey and Vodicka's Residence

21-24

Sayers

5/25/2016

Aubrey's Business Apartment

27-29

Sayers

5/26/2016

Aubrey's Cell Phone

33-35

Sayers

5/26/2016

Vodicka's Cell Phone

37-39

Sayers

5/31/2016

Three Laptops

41-44

Sayers

10/5/2016

Google's Records

46-55

During the murder investigation, Dallas Police Department officers were investigating Aubrey for an additional crime—prostitution. See Doc. 169-1, Defs.' App., 70. In Ermatinger's investigative notes from October 13, 2016, he states that he received information suggesting that Aubrey was offering prostitution services, rather than massage services, on a website. Doc. 179, Pls.' App., 107-08. According to the notes, Ermatinger relayed this information to another detective and instructed the detective "to again check into the possibility that Aubrey is a male prostitute and[,] if so[,] to make cases." Id. at 108. The notes state that one week later, the detective contacted Ermatinger and indicated that he was "working the case on [Aubrey] for Prostitution and expected to arrest him at 2 pm." Id. at 22. "Ermatinger requested he be informed that the arrest did occur." Id.

Later that day, Aubrey was arrested on prostitution charges by an undercover officer, whom he called "Ryan." Doc. 121, Third Am. Compl., ¶¶ 224, 233 (51-52).⁴ Prior to the arrest, Aubrey sent "Ryan" a text message, which had a 2:15 p.m. time stamp, indicating that he had parked at the hotel where they were to meet. See Doc. 179, Pls.' App., 88. Aubrey states in his declaration that after parking, he unloaded his massage table, walked to the hotel room where he planned to meet "Ryan," and began unpacking the table. Id. at 175. He states that he set up the table and spoke with "Ryan" about money for four-to-five minutes, at which point "Ryan" excused himself, and officersarrested Aubrey. Id. Aubrey states the arrest occurred "at approximately 2:30 p.m." Id. Ermatinger's investigative notes, on the...