Clemmons v. Cothron

LUCIAN A. CLEMMONS, Plaintiff, v. ADAM COTHRON, et al., Defendants.

NO. 2:19-cv-00065

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NORTHEASTERN DIVISION

February 23, 2021

MEMORANDUM OPINION

Lucian Clemmons filed this action under 42 U.S.C. § 1983 against Adam Cothron and Doug Foster, in their individual capacities as troopers for the Tennessee Highway Patrol ("THP"), and Richard Cobble, in his individual and official capacities as a deputy sheriff for the Putnam County Sheriff's Department. Before the Court are two Motions for Summary Judgment: one filed by Cobble (Doc. No. 55); and one filed by Cothron and Foster (the "Troopers") (Doc. No. 63). Plaintiff filed a Response to each Motion. (Doc. No. 79) (Response to Cobble); (Doc. No. 83) (Response to the Troopers)). Both Cobble (Doc. No. 81) and the Troopers (Doc. No. 85) filed a Reply. For the following reasons, Cobble's Motion will be granted, and the Troopers' Motion will be granted in part and denied in part.

I. Background

A. Events Leading to Traffic Stop

Around 8:00 p.m. on August 21, 2018, Troopers Cothron and Foster were parked in Cothron's patrol car on a paved median on the interstate in Putnam County, perpendicular to the road, with headlights on and white "take down" lights activated. (Doc. No. 84 ¶¶ 1-2). Cothron, in the driver's seat, and Foster, in the front passenger seat, saw a black Chevrolet Avalanche approaching. (Id. ¶¶ 3-4). Plaintiff was driving this vehicle eastbound in the right lane with his cruise control set to 75 mph, and he tapped the break to cancel the cruise control when he passed the patrol car. (Id. ¶¶ 3-7). The Troopers claim that they saw Plaintiff drive across the white fog line¹ (id. ¶ 6), and Plaintiff denies doing so (Doc. No. 83-7 at 12).²

The Troopers pulled onto the interstate, travelling eastbound in the left lane. (Doc. No. 84 ¶ 8). There were no vehicles between the Troopers and Plaintiff. (Id. ¶ 9). The Troopers claim that they saw Plaintiff cross the fog line two more times (id. ¶¶ 10-11), and Plaintiff again denies doing so (Doc. No. 83-7 at 12). The Troopers pulled directly behind Plaintiff in the right lane, and Cothron determined that Plaintiff was travelling between 59 and 61 mph in a 70 mph zone. (Doc. No. 84 ¶¶ 12-13). Plaintiff testified that he was approaching the exit he took to get home. (Doc. No. 83-7 at 6-7).

B. Traffic Stop and Initial Questioning

At 8:03 p.m., Cothron turned on his blue lights and Plaintiff pulled over on the exit off-ramp. (Doc. No. 84 ¶ 14). At 8:04 p.m., the Troopers approached Plaintiff's vehicle on foot—Cothron on the passenger side and Foster on the driver side. (Id. ¶ 15). Cothron asked for Plaintiff's license and registration. (Id. ¶ 16). Plaintiff provided his license, and while he looked for his registration, Cothron explained that Plaintiff was being stopped for "failure to maintain his lane of travel." (Id. ¶ 17).

Over the next three minutes or so, the Troopers asked Plaintiff a series of questions. Cothron asked Plaintiff, "Where you been? You been working?" (Troopers' Exhibit Manually Filed Oct. 26, 2020 ("Video 1") at 20:04:50).³ Plaintiff said that he had been working at Purdue Farms in Monterey, Tennessee. (Video 1 at 20:04:53). Foster then asked Plaintiff why he was travelling toward Monterey, rather than away, and Plaintiff said that he visited family after work and was on his way home. (Doc. No. 84 ¶¶ 19-20).

Cothron mentioned Plaintiff's tattoo and asked him about a gang affiliation. Cothron claims that he noticed Plaintiff had a tattoo on his right arm that was "known to [Cothron] to be related with the Gangster Disciples." (Doc. No. 73-1 ¶ 13). Plaintiff states that "[i]t is questionable as to whether . . . Cothron could have clearly seen the tattoo" (Doc. No. 84 ¶ 21), and Plaintiff testified that the tattoo was not gang related. (Doc. No. 83-7 at 10-11). Regardless, the video reflects that Cothron said to Plaintiff, "I noticed your tattoo. Are you part of Gangster Disciples?", and Plaintiff said, "No." (Video 1 at 20:05:16). Cothron asked, "Were you ever? When you were younger?", and Plaintiff said, "A long time ago." (Id. at 20:05:19). Cothron asked, "So you're not affiliated with them anymore?", and Plaintiff said, "No." (Id. at 20:05:23).

Cothron asked Plaintiff if he had been ever been arrested, and Plaintiff said that he had been previously arrested for a domestic offense. (Doc. No. 84 ¶ 23). Cothron asked Plaintiff if he had any warrants, and if he was on probation or parole, and Plaintiff said no. (Id. ¶ 24). Cothron asked Plaintiff if there were any illegal drugs or weapons in the vehicle, and if he would consent to a search of the vehicle, and Plaintiff said no. (Id. ¶ 26).

During the questioning about drugs or weapons, Cothron noticed Plaintiff become extremely nervous, with his breathing heavy and labored. (Id. ¶¶ 27-28). Foster told Plaintiff that he could "see [Plaintiff's] heart beating in his chest," and Plaintiff said that he was nervous. (Video 1 at 20:06:47). In a quick exchange, Cothron asked Plaintiff in a raised voice, "Why you so nervous?", Plaintiff said, "Huh?", and Cothron repeated, "Why you so nervous?" (Id. at 20:06:52). Plaintiff said, "Just nervous, period." (Id. at 20:06:54). Cothron claims in his affidavit that, during this initial round of questioning, Plaintiff displayed a "sign of deception" through "stiff and rigid body posture" and by "only briefly look[ing] at [Cothron] while [Cothron] was talking to [Plaintiff]." (Doc. No. 73-1 ¶ 18). Plaintiff denies this claim by pointing out that neither Cothron nor Foster mentioned this behavior during their depositions. (Doc. No. 84 ¶ 30).

C. Warrant Check and Drug Dog Request

At 8:07:16 p.m., the Troopers ended their initial questioning of Plaintiff and returned to the patrol car. (Doc. No. 84 ¶ 31). At 8:07:54 p.m., Cothron initiated a call to THP dispatch during which he requested a warrant check and drug dog. (Video 1 at 20:07:54). While Cothron was waiting for dispatch to respond, he checked Plaintiff's driver's license and called Wilson County, the location of Plaintiff's domestic offense charge, to see if Plaintiff had any outstanding warrants there. (Doc. No. 84 ¶ 33). Meanwhile, Foster called the Blue Lighting Operations Center ("BLOC")⁴ to ask if it had a record of any warrants for Plaintiff. (Id. ¶ 34).

At 8:12:13 p.m., the driver's license check showed that Plaintiff's license was valid. (Id. ¶ 35). At 8:14:22 p.m., dispatch advised that the National Crime Information Center ("NCIC") did not identify any outstanding warrants for Plaintiff. (Id.). And at 8:17:06 p.m., Putnam CountyDeputy Sheriff Cobble arrived at the scene with drug dog Bolt. (Id. ¶ 37). Throughout this time, Foster had not heard back from BLOC (id. ¶ 36), and Plaintiff points out that the Troopers do not state when, if ever, the BLOC results were received (id. ¶ 40).

D. Dog Sniff, Search, and Criminal History Investigation

In January 2015, September 2015, October 2016, and October 2017, Deputy Sheriff Cobble and Bolt were certified for detecting marijuana, methamphetamine, cocaine, and heroin. (Doc. No. 55-1 at 11, 14, 18, 20). This certification was valid at the time of the traffic stop. (Doc. No. 84 ¶ 43). Cobble claims that Bolt "has never had a false alert" (Doc. No. 80 ¶ 2), and Plaintiff denies this claim by pointing to Trooper Cothron's deposition testimony agreeing that drug dogs are not "100 percent perfect." (See Doc. No. 79-6 at 2).

At 8:17:55, Plaintiff complied with Cothron's instruction to exit the vehicle. (Video 1 at 20:07:55). At 8:19:11, Cobble led Bolt down the driver side of Plaintiff's vehicle. (Id. at 20:19:11). Cobble told the Troopers that Bolt gave a positive alert at the driver side door. (Doc. No. 84 ¶¶ 38-39). Based on this alert, the Troopers began searching the vehicle, and Cothron found a loaded handgun with two magazines in the center console. (Id. ¶ 44). The Troopers then placed Plaintiff in handcuffs. (Video 1 at 20:21:21).

At 8:22 p.m., Cothron called THP dispatch to request Plaintiff's criminal history in order to determine whether Plaintiff could lawfully possess the gun. (Doc. No. 84 ¶ 45). While waiting for Plaintiff's criminal history report, the Troopers continued searching the vehicle, and they did not find any illegal drugs. (Id. ¶¶ 46-47).

At 8:32 p.m., Cothron received Plaintiff's criminal history report from dispatch. (Id. ¶ 48). Plaintiff admits that he was a convicted felon at the time of the traffic stop (Doc. No. 80 ¶ 8), but the video reflects that the Troopers had some initial uncertainty about Plaintiff's criminal historystatus. Cothron reviewed the report and found that Plaintiff had been arrested on various charges, but Cothron was unsure whether Plaintiff had been convicted on any of those charges, saying at one point, "So is he a felon in possession of a firearm?" (Video 1 at 20:36:04). Cothron claims that the report led him to believe that Plaintiff was a convicted felon because it showed that Plaintiff had been issued an identification number in the Tennessee Offender Management Information System ("TOMIS") and therefore had previously been in Tennessee Department of Correction custody. (Doc. No. 73-1 ¶ 33). Plaintiff denies this claim, noting that Cothron did not mention any TOMIS number at the time. (Doc. No. 84 ¶ 50).

At 8:38:23 p.m., Cothron asked Plaintiff if he had been convicted of a marijuana charge listed on the criminal history report that Cothron believed to be a felony. (Video 1 at 20:37:44). Plaintiff said, "Yes I was." (Id. at 20:38:23). Cothron asked Plaintiff "how much time" he did for that offense, and Plaintiff said, "None. Pretrial diversion." (Id. at 20:38:25). Cothron again asked, "But you was convicted of it," and Plaintiff said, "Yes." (Id. at 20:38:30). Cothron then asked Plaintiff if he had been convicted of two domestic offenses listed on the criminal history report, and Plaintiff said no. (Id. at 20:38:...