2004 | Cited 0 times | D. Maine | May 27, 2004


The issue here is whether a state trooper should receive qualifiedimmunity for a drug arrest he made after receiving approval from anassistant district attorney. The charges against the arrestee were laterdropped.

The plaintiff John Cox ("Cox") has asserted several state and federalclaims against the Maine State Police, Trooper John Hainey ("TrooperHainey"), and the Oxford County District Attorney's Office ("DA'sOffice") arising out of his May 9, 2001, arrest for aggravated furnishingof a scheduled drug.1 The United States Magistrate Judge filed withthe Court on March 30, 2004, his Memorandum Decision on Defendants'Motion to Strike and Recommended Decision on Defendant's Motion forSummary Judgment. The Magistrate Judge recommended summary judgment in favor of the Maine State Police onall claims, in favor of the DA's Office on all federal claims, and infavor of Trooper Hainey on a state defamation claim and on a federalpunitive damages claim. Cox has not objected to those recommendations.The Magistrate Judge also recommended that a federal constitutional claim(based upon lack of probable cause for the arrest) proceed againstTrooper Hainey and that state law claims proceed against the DA's Officefor malicious prosecution, and negligent and intentional infliction ofemotional distress (Counts III, V, VII). Trooper Hainey and the DA'sOffice filed an objection to the Recommended Decision on April 16, 2004,objecting to the Magistrate Judge's conclusions that Trooper Hainey isnot entitled to qualified immunity and that the claims against the DA'sOffice can proceed to trial.

I have reviewed and considered the Recommended Decision; I have made ade novo determination of all matters objected to in the RecommendedDecision pursuant to Fed.R.Civ.P. 72; and I ADOPT IN PART AND REJECT INPART the Recommended Decision as discussed below. I ADOPT the MagistrateJudge's decision on all matters where there has been no objection. Thus,the Maine State Police is entitled to summary judgment; the DA's Officeis entitled to summary judgment on Counts IX and X; and Trooper Hainey isentitled to summary judgment on Count VIII (defamation), Counts IX and Xrelated to the Fifth and Eighth Amendments, claims of malicious prosecution and claims forpunitive damages. However, I REJECT the conclusion of the RecommendedDecision that Trooper Hainey should not receive summary judgment on allremaining federal claims. Instead, I conclude that Trooper Hainey isentitled to qualified immunity. Since that resolves all federal claims,the remaining state law claims against the DA's Office are REMANDED tostate court.


(1) Qualified Immunity for Trooper Hainey

The analysis of a qualified immunity defense for Trooper Haineyrequires that I determine whether the actions Cox complains of amount toa violation of a constitutional right (here, the right to remain free ofarrest unless there is probable cause); if so, whether the contours ofthe right were clearly established at the time of the violation; and, ifso, whether an objectively reasonable officer possessing the informationavailable to Trooper Hainey would have believed that the arrest violatedCox's constitutional right. See Acevedo-Garcia v. Monroig, 351 F.3d 547,563-64 (1st Cir. 2003) (citation omitted); Abreu-Guzman v. Ford,241 F.3d 69, 73 (1st Cir. 2001) (citations omitted). On the defendants'motion for summary judgment, I view the factual record in the light mostfavorable to Cox, the non-moving party, and give Cox the benefit of allreasonable inferences in his favor. See, e.g., Cadle Co. v. Hayes,116 F.3d 957, 959 (1st Cir. 1997). The defendants do not object to the Recommended Decision's conclusion thatCox has alleged conduct amounting to a violation of a constitutionalright (i.e., being arrested without probable cause). Therefore, I do notreview that issue. This right was clearly established at the time of thealleged violation.2 Abreu-Guzman, 241 F.3d at 73. Accord RecommendedDecision at 23. The crux of the defendants' objection is the thirdcomponent of qualified immunity: whether an objectively reasonableofficer would have understood that the arrest violated Cox's clearlyestablished constitutional right to be arrested only on probable cause.See, e.g., Saucier v. Katz, 533 U.S. 194, 202 (2001); Abreu-Guzman, 241F.3d at 73; Topp v. Wolkowski, 994 F.2d 45, 48 (1st Cir. 1993).

A police officer is afforded qualified immunity so long as the presenceof probable cause is at least arguable. See Fletcher v. Town of Clinton,196 F.3d 41, 53 (1st Cir. 1999) (citation omitted). "Probable cause," forpurposes of a warrantless arrest, means a "reasonable likelihood" that acrime has been committed by the person to be arrested. Valente v.Wallace, 332 F.3d 30, 32 (1st Cir. 2003) (citing Illinois v. Gates,462 U.S. 213, 235 (1983)). The First Circuit has described probable causeas a "fluid concept": Its existence must be evaluated under the entirety of the circumstances. Probable cause to arrest does not demand either the same quantum of proof or the same degree of certitude as a conviction. Probable cause does, however, require reasonably trustworthy information such as would lead a prudent person to believe that the suspect likely had committed or was committing a criminal offense.

United States v. Lee, 317 F.3d 26, 32 (1st Cir. 2003) (emphasis added)(citations omitted).

Trooper Hainey arrested Cox for aggravated furnishing of a scheduleddrug. An objectively reasonable officer would have had the followinginformation available in evaluating the existence of probable cause forthat arrest3:

A confidential informant ("CI") told police that Joseph Cox (Cox's15-year-old son4) was selling drugs to students at Oxford HighSchool. Defs.' Statement of Material Facts ("Defs.' SMF") ¶ 7 (DocketItem 18); Pl's Opposing Statement of Material Facts ("Pl's Opposing SMF")¶ 7 (Docket Item 24). The CI agreed to set up a controlled drug purchase from Joseph Cox. Defs.' SMF ¶ 8; Pl.'sOpp'n SMF ¶ 8. After being supplied with an electronic sound transmittingdevice, Defs.' SMF ¶ 15; Pl.'s Opposing SMF ¶ 15, the CI proceeded tothe Cox residence under police supervision. Defs.' SMF ¶ 17; Pl'sOpposing SMF ¶ 17. He was inside the residence for about ninety minutes,Defs.' SMF ¶ 22; Pl's Opposing SMF ¶ 22, and police could hear theconversations over the transmitting device. Defs.' ¶¶ 16, 18-19; Pl'sOpposing SMF ¶¶ 16, 18-19. During that time, Cox's son, Joseph, sold the CIfour dosage units of oxycodone hydrochloride ("Roxicodone"). Defs.' SMF¶¶ 19, 23-24; Pl's Opposing SMF ¶¶ 19, 23-24. Through the transmittingdevice, Trooper Hainey heard Joseph tell the CI inside the Cox residencethat Joseph's father had recently come back from North Carolina on a"drug run,"5 and that he would also have his father get "an eighth ofmarijuana" for the CI.6 Defs.' SMF ¶ 20; Hainey Dep. at 16. Cox, thefather, was not at home. Pl's Statement of Material Facts in Dispute("Pl.'s SMF in Dispute") ¶ 12 (Docket Item 26); Defs.' Response to Pl'sStatement of Material Facts in Dispute ("Defs.' Response to Pl.'s SMF inDispute") ¶ 12 (Docket Item 29). A search of the Cox residence eleven days later pursuant to a warrant revealed twoRoxicodone7 tablets and drug paraphernalia in son Joseph's bedroom.Defs.' SMF ¶ 30; Pl.'s Opposing SMF ¶ 30. A triple-beam scale withmarijuana residue, an empty Roxicodone bottle and a bottle of sixty-fiveRoxicodone tablets were found in the family kitchen. Defs.' SMF ¶ 31;Pl.'s Opposing SMF ¶ 31. Both father and son were home at the time ofthe search. Defs.' SMF ¶ 33; Pl.'s Opposing SMF ¶ 33; Hainey Dep., Ex.1, Maine State Police Investigation Report at 4.

Cox, the father, told officers at the time of the search that he had aprescription for oxycodone, including the Roxicodone pills found in hishouse.8 Pl.'s SMF in Dispute ¶ 4; Defs.' Response to Pl.'s SMF inDispute ¶ 4; Defs.' SMF ¶ 33; Pl.'s Opposing SMF ¶ 33. Cox denied thathe had provided Roxicodone pills to his son or anyone else. Pl.'s SMF inDispute ¶ 5; Defs.' Response to Pl.'s SMF in Dispute ¶ 5. Cox said thathe kept his pills "on his person" at all times except when sleeping.9Defs.'SMF ¶ 33; Pl.'s Opposing SMF ¶ 33. Cox also stated that he accounts for the number of pills he uses and that if anybody took someof them, he would know about it. Defs.' SMF ¶ 34; Pl's Opposing SMF ¶34. He said that on April 21, 2001 (before the controlled buy), he calledhis pharmacist because he felt that he was missing a few of hisRoxicodone pills. Pl's SMF in Dispute ¶ 2; Defs.' Response to Pl's SMFin Dispute ¶ 2.10 Trooper Hainey next conferred with an assistant district attorney,11discussing the items and information obtained during the search of theCox residence and the existence of probable cause to arrest Cox, Defs.'SMF ¶ 35; Pl's Opposing SMF ¶ 35. The assistant district attorney agreed that probablecause existed to arrest Cox. Defs.' SMF ¶ 37; Pl's Opposing SMF ¶ 37.

I conclude that based on the above information, a reasonable officercould believe that probable cause arguably existed. I point out firstthat a reasonable officer "is under no obligation to give any credence toa suspect's story" in deciding whether there is probable cause. Criss v.City of Kent, 867 F.2d 259, 263 (6th Cir. 1988).12 At the time of thearrest, the officer knew the following: Cox had a prescription forRoxicodone; Cox's son had sold Roxicodone pills in the house to a CIeleven days before; Cox's son had told the CI that Cox, his father, hadrecently returned from North Carolina on a drug (or dope) run; Cox's sontold the CI that Cox would get him marijuana; a triple beam scale withmarijuana residue was found in the family kitchen; an empty Roxicodonebottle was found in the family kitchen along with a bottle of sixty-fiveRoxicodone pills; and two Roxicodone pills were found in son Joseph'sbedroom. Given that information, a reasonable officer was not required toconsider Cox's statements that he was not involved in drug activity.

Importantly, thereafter Trooper Hainey shared all this information withan assistant district attorney and obtained the assistant districtattorney's view that there was probable cause for the arrest.13 The First Circuit has notaddressed how advice from a district attorney affects a qualifiedimmunity reasonableness inquiry. Judge Brody of this Court has said thatit is reasonable for an officer to abide by the advice of an assistantdistrict attorney to interpret language of a warrant. See Miller v.Kennebec County, 63 F. Supp.2d 75, 81 (D. Me. 1999), rev'd in part onother grounds, 219 F.3d 8 (1st Cir. 2000). Moreover, the Seventh Circuithas held that a police officer is entitled to qualified immunity in asection 1983 action if the officer consulted a district attorney orprosecutor before making the arrest and thus had a reasonable basis forbelieving that there was probable cause to make the arrest. See Kijonkav. Seitzinger, 363 F.3d 645, 648 (7th Cir. 2004). See also Lavicky v.Burnett, 758 F.2d 468, 476 (10th Cir. 1985); Arnsberg v. United States,757 F.2d 971, 981 (9th Cir. 1985). Such a rule is sensible because itencourages the police to consult with prosecutors before making anarrest-"a valuable screen against false arrest." Kijonka, 363 F.3d at648. Qualified immunity for a police officer does not attachautomatically to advice from a prosecutor or district attorney. Relianceon the advice obtained from a district attorney still must be objectivelyreasonable in light of the officer's conversation with the district attorney and the amount of information theofficer and district attorney had available at the time. Cf. Miller, 219F.3 at 11 (no qualified immunity where district attorney did not seewarrant and lacked information about what was said by arrestee). See alsoWomack v. City of Bellefontaine Neighbors, 193 F.3d 1028, 1031 (8th Cir.1999). But advice based upon a fair presentation of the availableinformation certainly supports an objective reasonableness conclusion.

The evidence here for Cox's involvement was certainly notoverwhelming, and the charge was later dropped. But at the time of thearrest, the supply of Roxicodone in the house from Cox's prescription,the presence of pills in the kitchen and his son's bedroom, his son'sprevious sale of Roxicodone in the family house and his statements abouthis father's drug activity (confirmed to some degree by a scale withmarijuana residue found in the family kitchen) were enough to furnish areasonable likelihood that Cox supplied the Roxicodone to his son —notwithstanding his protestations of innocence. Particularly when theofficer received the added confirming informed judgment of an assistantdistrict attorney that probable cause existed, I conclude that anobjectively reasonable officer could believe that probable cause (a"reasonable likelihood") was arguably present to arrest Cox foraggravated furnishing of a scheduled drug to his son. Trooper Hainey is entitled to qualified immunity and therefore summaryjudgment as to Count IX and its companion Count X requesting attorneysfees pursuant to 42 U.S.C. § 1988.

(2) Remand of Remaining State Claims

This case was removed to federal court on April 29, 2003, pursuant to28 U.S.C. § 1446. However, all federal claims have now been resolved andonly certain state claims remain. A federal court, in its discretion, mayrelinquish jurisdiction after removal when there is no longer a basis forfederal subject matter jurisdiction. See 28 U.S.C. § 1367(c)(3) (1993).See also Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357 (1988);Menorah Ins. Co., Ltd. v. INX Reins. Corp., 72 F.3d 218, 224 (1st Cir.1995); Rose v. Baystate Med. Ctr., Inc., 985 F. Supp. 211, 219 (D. Mass.1997) (after loss of federal claim on summary judgment, district courtcan remand other state claims); accord Charles Alan Wright, Arthur R.Miller, and Edward H. Cooper, Federal Practice and Procedure, § 3739, at436-440 (1998) (stating that "if the jurisdictionally sufficient claimsare dismissed before the trial commences, the district court normallyshould remand the jurisdictionally insufficient supplemental claims tothe state court . . ., although it has some discretion to retain andadjudicate them").

Given that only state law issues remain, state court adjudication bestserves the interests of "economy, convenience, fairness, and comity."See Cohill, 484 U.S. at 353. I therefore remand the remaining state law claims againstthe DA's Office to state court.


Summary judgment is entered in favor of the Maine State Police onCounts I, II, IV, VI, VIII, IX and X, thereby removing the Maine StatePolice from the lawsuit.

Summary judgment is entered in favor of the DA's Office on Counts IXand X. Counts III, V and VII remain and are REMANDED to state court.

Summary judgment is entered in favor of Trooper Hainey on Counts VIII,IX and X, thereby removing Trooper Hainey from the lawsuit.

The case is remanded to the Maine Superior Court (Oxford County).


1. Other defendants have been dismissed by stipulation.

2. The defendants criticize the Recommended Decision's reliance onAbreu-Guzman arguing that the right "that arrests be based upon probablecause" is too general for purposes of determining whether the right wasclearly established in the qualified immunity analysis. Defs.' Objectionto Recommended Decision at 10-11 (citing Anderson v. Creighton,483 U.S. 635, 639 (1987) (Docket Item 36). However, the First Circuitclearly stated that "[i]t has been established for a very long time thatthe Fourth Amendment requires that arrests be based on probable cause."Abreu-Guzman, 241 F.3d at 73 (citing Beck v. Ohio, 379 U.S. 89, 91(1964)).

3. Whether probable cause should be measured against only the crime ofarrest-here, aggravated furnishing of a scheduled drug-was not argued orbriefed by the parties. The First Circuit has adopted the "related crimesdefense." "An officer's erroneous legal description of the basis for anarrest should not expose the officer to liability if another officerwould have concluded that there was probable cause to arrest for arelated offense on the basis of the same conduct. . . . [W]e shouldconsider whether the conduct in question would allow a reasonable officerto conclude that probable cause existed to arrest for the related crimeoffered as justification." Sheehy v. Town of Plymouth, 191 F.3d 15, 20(1st Cir. 1999). The Magistrate Judge did conclude that "a reasonableofficer standing in Hainey's shoes could have (i) at least arguably foundprobable cause to believe John Cox guilty of trafficking in marijuana.. . ." Recommended Decision at 23. Because the parties have not argued it,I have not relied upon probable cause for arrest for the lesser crime.

4. In May 2001, Joseph was 15 years old. Cf. Defs.' SMF ¶ 1; Pl.'sOpposing SMF ¶ 1. Joseph's ageis significant to the charge of aggravatedfurnishing, which applies to furnishing to "a child who is in fact lessthan 18 years of age." See 17-A M.R.S.A. § 1105-C(1)(A).

5. Cox does not dispute this statement, but consulting the policerecord in support reveals that Trooper Hainey heard Joseph Cox say "doperun," and that both father and son made the trip together. See HaineyDep., Ex. 1, Maine State Police Investigation Report at 4.

6. Cox purports to dispute this assertion. See Pl.'s Opposing SMF ¶20. However, his disagreement is not supported by a record citation asrequired by Local Rule 56(c) and is therefore disregarded pursuant toLocal Rule 56(e).

7. The Defendants' Objection to the Recommended Decision, at 12,says Roxicodone; the Defendants' Statement of Material Facts uses onlythe generic term oxycodone, Defs.' SMF ¶ 30, but the underlyingpolice document says Roxicodone, Hainey Dep., Ex. 1, Maine State PoliceInvestigation Report at 4. Moreover, the pills were of the same size andcolor as those Joseph sold the CI. Defs.' SMF ¶ 36; Pl.'s SMF ¶36.

8. Roxicodone and OxyContin both contain oxycodone hydrochloride (alsoknown simply as oxycodone), the difference being that OxyContin is atime-release drug while Roxicodone is not. See Defs.' SMF ¶¶ 23, 25; Pl.'sOpposing SMF ¶¶ 23, 25.

9. The Defendants' Statement of Material Facts states that John Cox,the father, also said that "the scale was for his `personal use,'" andthat he "denied any involvement in selling drugs." Defs.' SMF ¶ 32. Theplaintiff denies that the scale was for personal use, Pl.'s Opposing SMF¶ 32, but provides no record support and so could be treated as admittingit. See Local Rule 56(e). When I consult the record support for thedefendants' assertions, however, I find that those statements were madeafter Cox's arrest. Hainey Dep., Ex. 1, Maine State Police InvestigationReport at 6. It therefore cannot be part of the probable causeanalysis.

10. The parties engage in an unfruitful dispute over how to treatone of the plaintiff's statements of undisputed facts. The plaintiffadvanced the following as an undisputed fact: 3. During the time the search warrant was executed there was no evidence of drug trafficking or drug furnishing activities that could be attributed to the Plaintiff (other than a scale that would not be used in trafficking Oxycontin or Roxicodone). John Cox Affidavit ¶ 13; Hainey Dep. at 29-32.The defendants responded: Qualified. A triple beam scale with marijuana residue was found in the kitchen "hutch." Hainey Dep. Exhibit 2 at p. 1, "Item Number" 6. In Trooper Hainey's experience, these scales are "[o]ften used for measuring large amounts of marijuana." Hainey Dep. at p. 30, Lines 2-13. John Cox admitted that the scale was his. Id., Exhibit 1 at p. 6. "Miscellaneous drug paraphernalia" was also found in the Plaintiff's bedroom. Id. at p. 31, Lines 6-8; Hainey Dep. Exhibit 2 at p. 2, "Item Number" 9. Six plastic bags containing marijuana residue were found throughout the house in plain view. Hainey Dep. Exhibit 1 at p. 5.Defs.' Response to Pl.'s SMF in Dispute ¶ 3. The Magistrate Judgeincorporated the plaintiff's statement as part of his statement ofundisputed facts because the defendants' response was "inconsistent withthe underlying assertion to which it responds, and I view the cognizablerecord in the light most favorable to the Plaintiff as non-movant."Recommended Decision at 10 n. 10. The parties continue to argue over thisassertion and response in their legal memoranda following the RecommendedDecision. To the extent I understand the dispute (and it seems to belargely semantic), I by pass it. The determination of probable cause isbased upon a combination of facts and circumstances available to thearresting officer. Here, the triple beam scale with marijuana residuediscovered in the search was relevant to the existence of probable causeon the oxycodone charge in at least a couple of ways. First, it couldcorroborate the statements Trooper Hainey heard son Joseph make elevendays earlier during the recorded undercover buy. Then, Joseph said boththat his father had just returned from a "drug run" (or dope run) toNorth Carolina and that his father could get marijuana for the CI. Theevidence of marijuana-related activity the search revealed could showthat Joseph was not simply telling tall tales in that overhearddescription of his father's drug trafficking involvement. Second, thephysical evidence showing that Cox was willing to be involved in marijuanaactivity was of some import in determining whether it was plausible thathe would sell his prescribed Roxicodone pills or provide them to hisson.

11. According to Defs.' SMF ¶ 36, "Hainey believed that probablecause existed to arrest Cox on May 9, 2001 based upon information anditems obtained during the search, John's prior marijuana and possessionof drug paraphernalia arrests, John's statement that if someone had takenany of his pills he would have known about it, the fact that Joseph hadpossession of some of the pills, the fact that pills of the same size andcolor were purchased by the confidential informant on April 28, 2001, andJoseph's claim that his father left pills around the house." The plaintiff does not dispute that this was Trooper Hainey's belief,but Trooper Hainey's subjective belief is not relevant to determiningwhether an objectively reasonable officer would believe there wasprobable cause to arrest Cox. See n. 12, infra. The plaintiff also doesnot dispute the underlying facts of this belief. (The plaintiff onlypurports to dispute that the he left pills around the house, see Pl'sOpposing SMF ¶ 36, but his disagreement is not supported by a recordcitation as required by Local Rule 56(c) and therefore can be disregardedpursuant to Local Rule 56(e).) Arguably, there is record support for theassertion that Joseph's statements and the information about Cox's priorarrests were available at the time of Cox's arrest to establish theexistence of probable cause. See Hainey Dep. at 19-20, 22. According tothe Maine State Police Investigation Report, Joseph was inside theresidence when the search warrant was executed, see Hainey Dep., Ex. 1,Maine State Police Investigation Report at 4, but there is nocontemporaneous record evidence that Joseph's statements were made beforehis father was arrested. The contemporaneous record evidence availablesuggests that Joseph's statements that his father "leaves [pills] aroundthe house" and that his father "did not know about [Joseph] selling"drugs (presumably the impetus for Trooper Hainey's deposition testimonythat Joseph denied that Cox had ever given him oxycodone tablets, seeHainey Dep. at 22) were made after both Joseph and his father had beenarrested. See Hainey Dep., Ex. 1, Maine State Police Investigation Reportat 6. It is also not evident from deposition testimony when TrooperHainey learned of Cox's prior marijuana and possession of drugparaphernalia arrests. Viewing the factual record most favorably to Cox, Ihave left Joseph's statements and the prior arrests of his father out ofthe probable cause analysis.

12. I also point out that Trooper Hainey's subjective intent and whathe actually believed are irrelevant. Abreu-Guzman, 241 F.3d at 73 (citingCrawford-El v. Britton, 523 U.S. 574, 588 (1998)).

13. "Trooper Hainey conferred with Assistant District Attorney (`ADA')Richard Beauchesne of the Oxford County District Attorney's Office. . . .Hainey went over the items and information obtained during the searchof the Cox residence and discussed the existence of probable causeexisted to arrest John Cox. . . ." Defs.' SMF ¶ 35; Pl.'s Opposing SMF¶ 35. "ADA Beauchesne agreed with Trooper Hainey that probable causeexisted to arrest John Cox. . . ." Defs.'SMF ¶ 37; Pl.'s Opposing SMF¶ 37.

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