Schmidt v. Stassi

250 F.Supp.3d 99

Michael SCHMIDT

v.Brett STASSI, et al.

CIVIL ACTION No. 16-15902.

United States District Court, E.D. Louisiana.

Signed April 21, 2017

Eddie Jack Jordan, Jr., Eddie J. Jordan, Jr., LLC, Anthony James Ibert, James C. Lawrence, Jr., J. C. Lawrence & Associates, New Orleans, LA, Andrew A. Lemeshewsky, Jr., Law Offices of Andrew A. Lemeshewsky, Jr., Metairie, LA, for Michael Schmidt.

Freeman Rudolph Matthews, Blake J. Arcuri, Ronald Shane Bryant, Timothy R. Richardson, Usry, Weeks & Matthews, New Orleans, LA, for Brett Stassi, et al.

SECTION I

AMENDED ORDER AND REASONS

LANCE M. AFRICK, UNITED STATES DISTRICT JUDGE

Eugenie Boisfontaine went missing in Baton Rouge in 1997. Her battered and decomposing body was found three months later in a Louisiana bayou. The murder has never been solved.

Now, twenty years later, the search to find her killer is playing out on the Killing Fields —a nationally televised reality show on the Discovery Channel. Detective Rodie Sanchez, a grizzled veteran of the Iberville Parish Sheriff's office, came out of retirement to lead the search for Eugenie's murderer. Detective Sanchez has vowed that only death will stop him.

The Sheriff's investigators attempted to link potential suspects to DNA evidence found near the body. Most of the individuals of interest to the investigation voluntarily provided the investigative team with DNA samples. Michael Schmidt—Eugenie's ex-husband—did not.

Detective Sanchez found that refusal suspicious. He could not believe that Schmidt, if Schmidt was truly innocent, would not want to help locate Eugenie's murderer. Further, the fact that Schmidt had the temerity to hire multiple criminal defense lawyers, including the former United States Attorney for the Eastern District of Louisiana, made Detective Sanchez all the more suspicious.

With Schmidt not cooperating, the investigators set out to obtain a DNA sample involuntarily. They initially tried a subpoena. But when Schmidt's legal team filed a motion to suppress, the investigators took another tack: they decided to surreptitiously tail Schmidt until he unknowingly left DNA in public. Whether they did so because it made for good television is entirely unclear.

Members of the investigative team followed Schmidt's Hummer through Jefferson Parish until he stopped at a strip mall and went into a shop. One of the officers jumped out of her unmarked chase vehicle and used a cotton swab on the Hummer's door handle. The Sheriff's office then compared the DNA that was obtained with the DNA found near Eugenie's body. The DNA did not rule Schmidt out as a potential suspect.

Schmidt believes that the officers' conduct was unlawful. In particular, he objects that both (1) the swabbing of the car and (2) the DNA analysis constitute unconstitutional searches under the Fourth Amendment. Schmidt also argues that filming the process was a separate Fourth Amendment violation in and of itself. The Sheriff and his officers disagree.

The parties filed cross motions¹ for summary judgment on the threshold question of whether either the swabbing or the DNA analysis constituted a Fourth Amendment "search". The officers also request qualified immunity. For the following reasons, the Court concludes that the swabbing of the door constituted a Fourth Amendment search, but that the officers are entitled to qualified immunity on all Fourth Amendment claims.

I.

A.

Summary judgment is proper when, after reviewing the pleadings, the discovery and disclosure materials on file, and any affidavits, the court determines that there is no genuine dispute of material fact. See Fed. R. Civ. P. 56. "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party seeking summary judgment need not produce evidence negating the existence of material fact, but need only point out the absence of evidence supporting the other party's case. Id. ; Fontenot v. Upjohn Co. , 780 F.2d 1190, 1195 (5th Cir. 1986).

Once the party seeking summary judgment carries its burden pursuant to Rule 56, the nonmoving party must come forward with specific facts showing that there is a genuine dispute of material fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The showing of a genuine issue is not satisfied by creating " ‘some metaphysical doubt as to the material facts,’ by ‘conclusory allegations,’ by ‘unsubstantiated assertions,’ or by only a ‘scintilla’ of evidence." Little v. Liquid Air Corp. , 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). Instead, a genuine issue of material fact exists when the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party responding to the motion for summary judgment may not rest upon the pleadings, but must identify specific facts that establish a genuine issue. Id. The nonmoving party's evidence, however, "is to be believed, and all justifiable inferences are to be drawn in [the nonmoving party's] favor." Id. at 255, 106 S.Ct. 2505 ; see also Hunt v. Cromartie , 526 U.S. 541, 552, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999).

B.

Governmental officers sued in their individual capacity are entitled to qualified immunity insofar as their conduct "did not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). When qualified immunity is properly applied, "it protects all but the plainly incompetent or those who knowingly violate the law." Ashcroft v. al–Kidd , 563 U.S. 731, 743, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (internal quotation marks omitted). "Once a defendant invokes qualified immunity ... the burden shifts to the plaintiff to demonstrate the inapplicability of the defense." McCreary v. Richardson , 738 F.3d 651, 655 (5th Cir. 2013).

A plaintiff must make two showings to overcome a qualified immunity defense. First, the plaintiff must show that the officer's conduct violated a constitutional right. See Heaney v. Roberts , 846 F.3d 795, 801 (5th Cir. 2017). Second, the plaintiff must show that the constitutional right at issue was clearly established at the time of the alleged violation. Id. A court has the discretion to consider the qualified immunity analysis in any order it chooses. See Pearson v. Callahan , 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).

II.

The parties dispute the threshold issue of whether swabbing the door of Schmidt's Hummer constituted a Fourth Amendment "search." The Court concludes the swabbing was a search under the Fourth Amendment, but that a reasonable officer could conclude otherwise.

A.

Between Katz v. United States² and United States v. Jones ,³ the sine qua non of a Fourth Amendment search was a governmental intrusion into an area in which an individual had a reasonable expectation of privacy. See Smith v. Maryland , 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). Thus, "notions of physical trespass based on the law of real property were not dispositive" in Fourth Amendment analysis, United States v. Knotts , 460 U.S. 276, 285, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983), and the Amendment's reach did not "turn upon the presence or absence of a physical intrusion," id. at 280, 103 S.Ct. 1081 (emphasis added). "An actual trespass" was "neither necessary nor sufficient to establish a constitutional violation." United States v. Karo , 468 U.S. 705, 713, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984).

Under the Katz approach, the officers here would not have performed a Fourth Amendment search. An individual has no reasonable expectation of privacy in the exterior of an automobile. See Cardwell v. Lewis , 417 U.S. 583, 590–93, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974) (plurality opinion). Thus, even though a detective certainly touched Schmidt's car with the cotton swab, the detective's conduct would not have implicated Schmidt's Fourth Amendment rights because Schmidt had no reasonable expectation of privacy in materials on the exterior of his car. Cf. New York v. Class , 475 U.S. 106, 114, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986) ("The exterior of a car, of course, is thrust into the public eye, and thus to examine it does not constitute a ‘search.’ ").

Jones , however, altered (or at least clarified) Fourth Amendment doctrine. Specifically, Jones held that an individual need not invariably have a reasonable expectation of privacy before a governmental intrusion constitutes a Fourth Amendment search. See 565 U.S. at 406, 132 S.Ct. 945. Instead, Jones instructs that some—but not all—trespasses are also Fourth Amendment searches. See Jones , 565 U.S. at 406–12, 132 S.Ct. 945. So the net-net of Jones is that governmental actions can constitute Fourth Amendment searches "even without a showing of any intrusion upon a justified expectation of privacy." 2 Wayne R. LaFave et al., Criminal Procedure § 3.2 (4th Westlaw ed. 2016) ; cf. United States v. Turner , 839 F.3d 429, 434 (5th Cir. 2016) (articulating two-part test).

In returning trespass to the forefront of Fourth Amendment law, Jones prompts just as many questions as it answers. For example, not all trespasses constitute Fourth Amendment searches. See, e.g. , Oliver v. United States , 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) ; United States v. Beene , 818 F.3d 157, 162–63 (5th Cir. 2016). And, perhaps even more importantly, trespass "has taken many forms and changed over time." Orin S. Kerr, The Curious History of Fourth Amendment Searches 2012 Sup. Ct. Rev. 67, 90. But neither Jones nor Florida v. Jardines provides...