Harvey v. Butcher

1

TL HARVEY, Plaintiff, v. JAKE BUTCHER, et al., Defendants.

No. 1:18-cv-00008-JNP-DAO

United States District Court, D. Utah

August 2, 2023

MEMORANDUM DECISION AND ORDER DENYING DEFENDANTS JAKE BUTCHER AND THOMAS SIMPSON'S MOTION FOR SUMMARY JUDGMENT

Jill N. Parrish United States District Court Judge

On January 1, 2018, Plaintiff TL Harvey (“Mr Harvey”) proceeding pro se, filed a complaint against Defendants Jake Butcher (“Officer Butcher”) and Thomas Simpson (“Officer Simpson”) collectively (“Defendants”). ECF No. 1. Amongst other claims, Mr. Harvey asserted that Defendants had violated his Fourth Amendment rights by successively stopping him for a window tint violation and sought damages pursuant to 42 U.S.C. §§ 1983 and 1985. Id. Before the court is a motion for summary judgment based on qualified immunity filed by Defendants. ECF No. 104.

As Mr Harvey was proceeding pro se, the matter was initially referred to Magistrate Judge Daphne Oberg. On February 2, 2021, Judge Oberg issued a Report and Recommendation in favor of granting Defendants' motion for summary judgment. ECF No. 118. Mr. Harvey filed a series of objections, of which only the first objection was timely. ECF Nos. 119, 120, 121, 122. The court construed Mr Harvey's objections as solely against Officer Simpson's conduct and pertaining to the first traffic stop. ECF No. 123. After considering Mr. Harvey's objections, the court adopted Magistrate Judge Oberg's Report and Recommendation in full and granted Defendants' motion. Id.

Mr. Harvey appealed the decision to the Tenth Circuit. ECF No. 127. On July 14, 2022, the Tenth Circuit reversed and remanded the court's prior order. The Tenth Circuit instructed the court to interpret Mr. Harvey's objections as concerning both officers' conduct and to examine “the constitutionality of both stops under the Fourth Amendment.” ECF No. 145 at 2.

On September 20, 2022, the court held a status conference and ordered parties to file supplemental briefing on the constitutionality of the traffic stops. Having reviewed the supplemental briefing, the existing record, and the relevant law, the court DENIES Defendants' motion for summary judgment.^[1]

BACKGROUND

On January 11, 2016, Mr. Harvey was driving through Utah on his way to Wyoming. Harvey Dep. Ex. A, ECF No. 104-2, 34:20-25. At 2:24 p.m., Utah Highway Patrol Trooper Thomas Simpson stopped Mr. Harvey for a window tint violation. Simpson Daily Log, Ex. D, ECF No. 104-5. Utah prohibits drivers from operating a vehicle with front side windows that “allow less than 43% light transmittance.” Utah Code § 41-6a-1635(1)(b) (2015). Officer Simpson measured the front side window of Mr. Harvey's vehicle at 27.5% light transmittance. Simpson Decl. Ex. B, ECF No. 104-3 ¶ 18. Because the window tint violated Utah law, Officer Simpson ran checks on Mr. Harvey's license and registration. Id. at ¶ 22. Officer Simpson gave Mr. Harvey a warning, and the traffic stop concluded at 2:40 p.m. Simpson Citation, Ex. C, ECF No. 104-4.

Eight minutes after Mr. Harvey left, Officer Simpson contacted Utah Highway Patrol Trooper Jake Butcher who was located further down the highway and accompanied by a narcotics detection dog. The chat proceeded as follows:

[Officer Simpson]: got a car for you to go stop.

[Officer Butcher joins chat]

[Officer Simpson]: I just let him go[.] [H]e['s] proba[bl]y at about milepost 100-101 on I-84 east

[Officer Butcher]: what you got?

[Officer Simpson]: red. Volks with [Arizona] plates

[Officer Simpson]: it['s] a lease car so it[']s to the guy but he[']s from [M]inn[e]sota

[Officer Simpson]: keeps do[d]ging my questions of where[] he[']s coming from

[Officer Butcher]: ok [I']ll hurry and head that way

[Officer Simpson]: window tint measured 27%

[Officer Simpson]: so easy stop but if you can run your dog you might get something

[Officer Butcher]: ok thanks. I['ll] watch for it

[Officer Simpson]: AZ limit is 33% and MN limit is 50%

[Officer Simpson]: either way he[']s under

[Officer Butcher]: ok sounds good

[Officer Simpson]: FYI he[']s been stopped prior in Utah for window tint accordi[n]g to RMS

[Officer Simpson]: can[']t even see the driver through [t]he window tint

Redacted IM Transcript Ex. E, ECF No. 104-6.

At 3:07 p.m., less than thirty minutes after Officer Simpson had released Mr. Harvey, Officer Butcher stopped Mr. Harvey. Butcher Daily Log Ex. H, ECF No. 104-9. Officer Butcher maintains that he stopped Mr. Harvey because Officer Butcher “believed the tint on his windows violated Utah's window tint statute.” Butcher Decl. Ex. F, ECF No 104-7 ¶¶ 15, 19. Mr. Harvey informed Officer Butcher that he had just been stopped for a window tint violation. Id. ¶ 20. Officer Butcher then asked Mr. Harvey for his license and registration. Id. ¶ 21.

While waiting for records checks on Mr. Harvey's license and registration, Officer Butcher walked his narcotics dog around Mr. Harvey's vehicle. Id. ¶ 23. The dog set off an alert. Id. ¶ 24. Officer Butcher notified Mr. Harvey of the dog's alert and instructed Mr. Harvey to exit his vehicle so that Officer Butcher could search the car. Id. ¶ 28-29. Mr. Harvey requested the presence of Officer Butcher's supervisor for the search. Id. ¶ 30.

At 3:40 p.m. Sergeant Bryce Rowser arrived, and Officer Butcher searched Mr. Harvey's vehicle. Rowser Daily Log Ex. K, ECF No. 104-12; Butcher Decl. Ex. F, ECF No 104-7 ¶ 37. Officer Butcher did not find any narcotics. Butcher Decl. Ex. F, ECF No. 104-7 ¶ 38. As his own tint meter was out of battery, Officer Butcher used Sergeant Rowser's tint meter to measure the tint on Mr. Harvey's car windows. Unsurprisingly, the window measured at 27.5% light transmittance. Id. ¶ 39. Officer Butcher issued a warning to Mr. Harvey and returned his license and registration. Id. ¶ 40. The second traffic stop lasted sixty-five minutes and concluded at 4:22 p.m. Butcher Daily Log Ex. H, ECF No. 104-9.

LEGAL STANDARD

Summary judgment is warranted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute is genuine only if “a reasonable jury could find in favor of the nonmoving party on the issue.” Macon v. United Parcel Serv., Inc., 743 F.3d 708, 712 (10th Cir. 2014). “In making this determination,” the court must “view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party.” Id. at 712-13 (internal quotation omitted).

“The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal citation omitted). “When a defendant asserts qualified immunity at summary judgment, the burden shifts to the plaintiff, who must clear two hurdles in order to defeat the defendant's motion.” Gutteridge v. Oklahoma, 878 F.3d 1233, 1238 (10th Cir. 2018) (quoting Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009)). A plaintiff must show that “(1) a reasonable jury could find facts supporting a violation of a constitutional right, which (2) was clearly established at the time of the defendant's conduct.” Gutierrez v. Cobos, 841 F.3d 895, 900 (10th Cir. 2016) (quoting Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014)). “Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Fogarty v. Gallegos, 523 F.3d 1147, 1161 (10th Cir. 2008) (internal citation omitted). “Precedent need not be ‘directly on point' so long as it places the ‘statutory or constitutional question beyond debate.'” Crane v. Utah Dep't of Corr., 15 F.4th 1296, 1303 (10th Cir. 2021) (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015)).

ANALYSIS

To survive summary judgment, Mr. Harvey must demonstrate that a reasonable jury could find that Defendants violated his clearly established constitutional rights. The court first addresses the successive stops and then moves to Officer Butcher's use of a narcotics dog.

I. Successive Stops

The Fourth Amendment protects individuals from “unreasonable searches and seizures.” U.S. CONST. AMEND. IV. TRAFFIC STOPS ARE SEIZURES AKIN TO Terry stops under the Fourth Amendment and must be reasonable. Delaware v. Prouse, 440 U.S. 648, 653-54 (1979); Whren v. United States, 517 U.S. 806, 809-10 (1996). A traffic stop can be split into two parts, both of which must be reasonable: the initial act of stopping the vehicle and the conduct that occurs during the stop. See United States v. Botero-Ospina, 71 F.3d 783, 786 (10th Cir. 1995) (quoting Terry v. Ohio, 392 U.S. 1, 20 (1968)) (“To determine the reasonableness of an investigative detention, we make a dual inquiry, asking first ‘whether the officer's action was justified at its inception,' and second ‘whether it was reasonably related in scope to the circumstances which justified the interference in the first place.'”).

The initial decision to stop a vehicle must be reasonable. See United States v. Winder, 557 F.3d 1129, 1134 (10th Cir. 2009). To stop a vehicle, an officer must have either “(1) probable cause to believe a traffic violation has occurred, or (2) a reasonable articulable suspicion that a particular motorist has violated any of the traffic or equipment regulations of the jurisdiction.” Id. (citation omitted).

Once a stop begins, it must last no longer than necessary to effectuate the original purpose for the stop. See Rodriguez v. United States, 575 U.S. 348,...