Cobb v. City of Columbus, No. 2:99-CV-579.

205 F.Supp.2d 827

Michael COBB, Plaintiff, v. CITY OF COLUMBUS, et al., Defendants.

No. 2:99-CV-579.

United States District Court, S.D. Ohio, Western Division.

April 20, 2001.

James Donald McNamara, Columbus, OH, for plaintiff.

Patricia A. Delaney, Columbus City Attorney's Office, Columbus, OH, for defendant.

OPINION AND ORDER

KING, United States Magistrate Judge.

Plaintiff Michael Cobb brings this action under 42 U.S.C. § 1983, seeking monetary damages from defendant Donovan Kane, an officer of the Columbus Police Department ["CPD"].¹ Plaintiff alleges that defendant Kane stopped plaintiff without legal justification and conducted an illegal pat-down search of him in violation of his rights under the Fourth Amendment. Defendant Kane contends that he had reasonable suspicion to stop the vehicle in which plaintiff was a passenger and to perform a brief pat-down of plaintiff.² The parties have consented to disposition by the undersigned. 28 U.S.C. § 636(c). Trial to the Court was held on February 22, 2001. Pursuant to the provisions of Fed.R.Civ.P. 52(a), the Court now makes the following findings of fact and conclusions of law.

I. The Evidence

Both plaintiff Michael Cobb and Bobby Haddix testified that on the evening of June 10, 1998, Cobb met Haddix at the latter's residence.³ The two left for the area around the Ohio State University in Columbus, Ohio, in Haddix's red Z-28 Camaro. They first went to Scully's, where they played pool and watched television. Later in the evening, the two walked to Panini's, a restaurant and bar, where they remained until about 2:30 a.m. They then walked back to Haddix's vehicle. Haddix was driving south on High Street when the men passed a Taco Bell restaurant, decided to eat, and circled the block. Haddix turned north from Eighth Avenue onto High Street. As they waited in the left turn lane to enter the Taco Bell premises, plaintiff noticed that a police cruiser was behind them.

Defendant Kane testified that both he and Officer Frank Nichols⁴ were on routine motor patrol in a marked police cruiser at approximately 2:45 a.m. on the morning of June 11, 1998. Transcript, at 8, 12. The officers were driving north on High Street, between Eighth and Euclid Avenues, when a group of five or six young men flagged them down. Tr., at 14, 80; Deposition of Frank Nichols, at 14, 15. These young men, who were upset and very excited, informed the officers that a vehicle, possibly a Trans-Am, Camaro, or Thunderbird, had been following them and that the occupants of the vehicle had been threatening to "kick their ass." Tr., at 14-17; Nichols Depo., at 14, 15. Although defendant initially testified on deposition that these men informed the officers that the vehicle following them was black, Deposition of Donovan Kane, at 14, he testified at trial that the men did not indicate the color of the vehicle. Tr., at 17.⁵ The young men did not indicate that the occupants of the vehicle had weapons. Tr., at 25-26; Nichols Depo., at 45. One of the young men pointed a vehicle out as the one that had been following the group. Tr., at 28; Nichols Depo., at 15. Defendant testified that the vehicle, which was parked in a lot just south of the officers, and on the west side of High Street, sat in the lot for approximately 10 to 15 seconds before pulling north onto High Street. Tr., at 28-29. Officer Nichols first observed the vehicle after it had pulled back onto High Street, apparently from either a side street or a parking lot. Nichols Depo., at 20-21. When the vehicle passed the cruiser, the officers pulled onto High Street. Id. Although plaintiff disputes the incident with the group of young men, the Court finds that defendant's evidence concerning this group, i.e., the testimony of both defendant Kane and Officer Nichols, is credible and that the group of young men did, in fact, approach the officers.

Although plaintiff testified that there was other traffic on High Street, defendant testified that no other vehicles were between the Haddix vehicle and the police cruiser. Id., at 35-36. According to defendant, the cruiser caught up to the Haddix vehicle when it slowed down to turn into Taco Bell. Id., at 36. Plaintiff and Haddix testified, and defendant does not dispute, Id., at 45; Nichols Depo., at 26, that the Haddix vehicle, followed by the police cruiser, pulled into the drive-through line at Taco Bell. At the officers' directive, Haddix left the drive-through line and pulled into a parking space facing the neighboring 7-Eleven convenience store. Tr., at 45. The parking lot was well lit. Id., at 47. Officer Nichols approached the driver's side of the vehicle and defendant approached plaintiff on the passenger side. Id., at 48; Nichols Depo., at 26. Defendant did not specifically recall whether either of the occupants asking why they had been stopped. Tr., at 49. However, defendant testified that he and Nichols informed the occupants of the vehicle why they had been stopped. Id. According to defendant, plaintiff objected that he and Haddix had done nothing wrong. Id., at 52. Defendant asked plaintiff for identification more than once and plaintiff refused each request. Id., at 52-53; Nichols Depo., at 28. Defendant also testified that plaintiff refused to even verbally provide his name and date of birth. Tr., at 53. At that point, defendant ordered plaintiff out of the vehicle because "[h]e was going in the back of the cruiser ...." Tr., at 63. See also Id., at 57.

Plaintiff and Haddix testified that the officers did not inform them of the reason for the stop of the vehicle. In fact, both men testified that, when plaintiff asked the officers why he and Haddix had been stopped, the officers did not immediately answer. According to plaintiff, Officer Nichols eventually responded, "For harassing those people over there." Plaintiff then asked, "What people?" It was at this point that, according to plaintiff, defendant asked him if he "wanted to show him his i.d.?" Plaintiff responded in the negative. He again asked, "What people?" Defendant then asked him to step out of the vehicle. Plaintiff and Haddix both testified that, up to this point, neither officer questioned them about the alleged incident with the group of young men on High Street.

The Court finds that plaintiff was an extremely credible witness. His demeanor was forthcoming and his testimony was without evasiveness; he resisted exaggeration, even when testifying about his subjective response to the events of that night. The Court therefore accepts plaintiff's version of the events and his testimony that defendant requested identification only once before ordering plaintiff out of the vehicle.

The parties agree that plaintiff obeyed defendant's order to step out of the vehicle. Id., at 56. As plaintiff exited the vehicle, he made no furtive movements or threatening comments. Defendant saw no sign of weapons. Id., at 60-62. Once plaintiff exited the Haddix vehicle, defendant directed him to the back of the vehicle. Id., at 56. Defendant had plaintiff interlace his fingers behind his head, Id., and informed plaintiff that he would be patted down. Id., at 57. Defendant placed one hand on top of plaintiff's interlaced fingers and lightly patted down Cobb's outer clothing. Id., at 63.

Defendant testified that, prior to patting plaintiff down, he asked plaintiff "if there was anything that [defendant] should know about." Id., at 88. Although plaintiff responded in the negative, defendant felt a "hard ... rectangular-shaped box," Id., at 89, in plaintiff's front left pocket. Defendant asked plaintiff what the object was, and plaintiff responded that defendant didn't "need to know what it is." Id., at 90.⁶

The parties agree that other police officers were in the Taco Bell parking lot during some or all of these events. Plaintiff and Haddix testified that they did not observe either Officer Nichols or defendant speak with the other officers; defendant testified that, within minutes after stopping the Haddix vehicle, he and Officer Nichols sent another officer, whom defendant could neither identify nor describe at trial, Id., at 59-60, down the street to locate the victims. Id., at 40, 59. See also Nichols Depo., at 36. The men were never located. Id., at 60; Nichols Depo., at 37.

As noted supra, Officer Nichols approached Haddix, who was driving his car that night. Nichols asked Haddix for identification, Nichols Depo., at 26, which Haddix provided. Id., at 46. Haddix was never directed to leave the car, nor was he patted down, searched, arrested or charged with any offense. Officer Nichols testified on deposition that he heard defendant ask plaintiff for identification and then direct plaintiff to get out of the vehicle. Id., at 28. Nichols "guess[ed]" that the order was issued because plaintiff did not provide identification. Id., at 29. At that point, Nichols moved to the other side of the car to assist his partner if necessary. Id., at 30. He focused his attention on plaintiff. Id. Nichols did not observe plaintiff do anything threatening toward either police officer. Id. Importantly, Officer Nichols did not fear for his personal safety. Id., at 31. Afterwards, defendant told Nichols that plaintiff "was being uncooperative, he wouldn't give him his ID and since we were investigating this, we had to get him out." Id., at 32. Defendant testified at trial that he had determined to place plaintiff in the cruiser in order to continue his investigation: "And he, being the passenger, was being un-cooperative and we thought maybe he would be more cooperative if he didn't have his friend next to him." Tr., at 86.

Plaintiff testified that the pat-down was light and was completed within 15 to 30 seconds. The parties agree that there were other people in the Taco Bell parking lot at the time of the pat-down. Plaintiff experienced "a little" embarrassment due to being searched in front of these people.⁷

II. Discussion

A. The Standard

The...