Brown v. City of Bloomington

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Civil No.: 15-11(DSD/DTS)

Tase Brown, Melonie Scott

and Ashley Scott,

Plaintiffs,

v. ORDER

City of Bloomington,

Matthew George, a Minnesota

peace officer (Bloomington)

sued in his personal capacity,

Carolyn Kne, a Minnesota

peace officer (Bloomington)

sued in her personal capacity,

and John and Jane Does 1-10,

Defendants.

A.L. Brown, Esq. and Capitol City Law Group, LLC, 287 East

Sixth Street, Suite 20, Saint Paul, MN 55101, counsel for

plaintiffs.

Jason M. Hiveley, Esq. and Iverson Reuvers Condon, 9321 Ensign

Avenue South, Bloomington, MN 55438, counsel for defendants.

This matter is before the court upon the motion for summary

judgment by defendants City of Bloomington; Matthew George and

Carolyn Kne, acting in their individual capacities as officers of

the Bloomington police department; and John and Jane Does 1-10.

Based on a review of the file, record, and proceedings herein, and

for the following reasons, the court grants the motion in part.

BACKGROUND

This civil rights dispute arises out of defendants’ response

to a November 4, 2014, report that plaintiffs Melonie Scott and

Ashley Scott were committing fraud at Bloomington Lincoln Mercury

car dealership in Bloomington, Minnesota.

On September 20, 2014, Melonie went to the dealership to

purchase a new car and trade in her then-current vehicle, a 2008

Dodge Caliber. Melonie Dep. at 7:1-18. At the dealership, Melonie

worked with Rocky Foster - the finance manager - and Renaldo

Dennis. Id. at 36:1-4. Melonie decided to purchase a 2012

Chevrolet Captiva and entered into a “Retail Installment Contract

and Security Agreement” with the dealership. Id. at 7:1-7;

see Hiveley Aff. Ex. D. Under the terms of the agreement, Melonie

agreed that the remainder of the loan outstanding on the Caliber

would be added to the loan for the Captiva.1 Hiveley Aff. Ex. D at

56-57. Melonie and the dealership also entered into a “Conditional

Delivery Agreement, Addendum to Installment Sales Contract.” Id.

at 53. The addendum provides that the dealership would deliver the

Caliber to Melonie conditioned on its ability to obtain financing

from a lending institution. Id. In the event the dealership was

unable to obtain financing, Melonie was obligated either to pay the

full purchase price of the vehicle or immediately return it to the

1 Melonie traded in her Caliber at a value of $0. Hiveley

Aff. Ex. D. at 56-57.

2

dealership.2 Id.

After signing the above paperwork, Melonie left the dealership

with the Captiva. See Melonie Dep. at 47:3-23. Although she had

not read all of the paperwork, Melonie believed that she had

completed the requisite forms and was to begin making monthly

payments of $403.67 to First Investors beginning November 4, 2014.3

Id. at 25:1-26:5, 43:1-12. Within a week of leaving the

dealership, Melonie received a welcome call from First Investors

regarding the financing of her vehicle, but received no other

information. Id. at 38:15-19.

A week later, Melonie returned to the dealership to pickup

license plates for the Captiva. Id. at 35:6-14. Rocky Foster

informed her that the plates had not yet arrived, but would be in

soon. Id. Foster also requested paycheck stubs for income

verification purposes, which she provided. Id. at 35:6-14.

Melonie left the dealership under the impression that the deal was

2 Melonie testified that she completed a handwritten credit

application in order to obtain financing. Melonie Dep. at 7:19-

8:17. The application, however, was not produced in discovery, and

Melonie has not seen the application since she completed it. Id.

at 8:2-11. Rather, the application that was in the possession of

the dealership, and that was produced during discovery, is

typewritten and contains numerous errors. Specifically, it

misspells Melonie’s name and contains incorrect income, contact,

and employment information. Id. at 8:20-24, 12:1-16:22. Melonie

believes that a dealership employee falsified the inaccurate

typewritten application. See Compl. ¶ 33.

3 Melonie testified that someone at the dealership informed

her that First Investors, a lender, would provide the financing.

Melonie Dep. at 38:8-14.

3

complete. Id. at 36:17-23, 43:17-21.

The dealership, however, later informed Melonie that it was

unable to obtain financing, accused her of lying on the credit

application in order to steal the vehicle, and asked her to return

the Captiva. Id. at 28:8-29:15. After consulting with various

attorneys, she decided not to return the vehicle. Id. at 29:15-21.

On November 4, 2014, Melonie, accompanied by her sister

plaintiff Ashley Scott, returned to the dealership in a rental car4

to make her first loan payment and to pickup license plates for the

Captiva.5 Id. at 46:9-13; Compl. ¶ 43. At the dealership, Melonie

complained to the finance director, Matthew Zarras, about not

receiving her license plates sooner. Melonie Dep. at 54:13-19.

Zarras informed her that they were working on the problem, asked

her to wait, and left. Id. Zarras subsequently called the

Bloomington police to report a fraud in progress. Id.; Incident

Report, Hiveley Aff. Ex. E at 5.

Officer Robert George and other unidentified officers

responded to the call.6 Melonie Dep. at 55:12-22; Incident Report

4 Melonie and Ashley arrived in a rental car because the

dealership tags on the Captiva had expired. Melonie Dep. at 47:3-

48:14.

5 Melonie went to the dealership to deliver her first payment

instead of sending it to the financing company because she did not

receive any information concerning where to send her payments.

Melonie Dep. at 51:5-19.

6 It is unclear how many officers responded to the call.

4

at 05. Once the officers arrived, an officer informed Melonie and

Ashley that they were responding to a report of a stolen vehicle.

Melonie Dep. at 55:12-22. Melonie protested that she did not steal

a vehicle, and, in response, George told her and Ashley to “be

quiet, have a seat ..., and don’t move.”7 Id. Ashley testified

that George told them that they were detained. Ashley Dep. at

24:13-17. George then went to speak with Zarras while an officer

in plain clothes stood by the exit. Melonie Dep. at 55:12-22;

Ashley Dep. at 23:23-24:3. Zarras informed George that Melonie had

previously been at the dealership to buy a Captiva, but that the

dealership was unable to secure financing through First Investors.

Incident Report at 5. Zarras explained that First Investors had

advised the dealership that they were unable to verify Melonie’s

employment because of inaccurate and false information provided on

the application. Id. Zarras also told George that he had

attempted to resolve the problem with Melonie and that she had

provided additional contact information for an employer, but First

7 Melonie did not explicitly testify that George was the

officer who told her and Ashley to be quiet and not move. See

Melonie Dep. at 55:12-22. She did testify, however, that this same

officer then went to speak with Zarras. Id. Therefore, it is

reasonable to conclude that George is the officer who detained

Melonie and Ashley because he interviewed Zarras. See Incident

Report at 5-8. Further, George does not deny that he was the

officer who told Melonie and Ashley to have a seat and not move.

5

Investors could not verify that information either.8 Id. at 6.

Finally, Zarras stated that he told Melonie that the loan was not

approved and that she needed to return the car per the terms of the

agreement, but she refused. Id. Zarras informed George that he

did not want to press any charges if Melonie agreed to return the

Captiva in exchange for her Caliber.9 Id. at 7.

After speaking with Zarras, George told Melonie that the

dealership did not want to press charges. Brown Aff. Ex. 1 at

5:08-5:38. Melonie asked George what charges could be filed, and

he responded that she lied on the credit application, which was a

crime. Id.; Melonie Dep. at 58:4-17. She disputed that she

provided false information on her application and told George that

the dealership employees had filled out the incorrect credit

application. Incident Report at 8. She also informed him that she

had consulted with several attorneys about the car and that one

attorney advised her to keep the car. Id.; Brown Aff. Ex. 1 at

4:30-50. Melonie and Ashley testified that George was not

interested in hearing their side of the story and refused to look

at paperwork that Melonie claimed supported her position. Melonie

Dep. at 60:15-61:13; Ashley Dep. at 37:4-9. George then gave

8 Melonie denies that the dealership had informed her that

there were inaccuracies or false information on her credit

application. Melonie Dep. at 42:10-43:25.

9 George did not speak with the employees who had helped

Melonie when she bought the Captiva because they had been fired

prior to the incident. Melonie Dep. at 59:1-9.

6

Melonie a choice between exchanging vehicles or being arrested for

theft by swindle. Brown Aff. Ex. 1 at 5:50-6:10; Melonie Dep. at

58:10-17; Ashley Dep. at 25:8-10.

George proceeded to ask Melonie where the Captiva was located,

and Melonie informed him that it was at her mother’s home.10

Melonie Dep. at 70:8-20. Although Melonie did not remember her

mother’s address, she knew how to get there. Id. Melonie called

her mother on her cell phone so that George could speak with her,

but Brown was uncooperative and did not provide her address. Id.

at 71:14-17; Incident Report at 8.

Because she did not want to be arrested, Melonie agreed to

lead the police to her mother’s house in Richfield, Minnesota.

Melonie Dep. at 79:8-15; Incident Report at 8. Before leaving the

dealership, George seized Melonie’s identification and cell phone.

Melonie Dep. at 81:10-13; Brown Aff. Ex. 1 at 11:00-15. Ashley

asked George whether she could get a copy of the report that was

going to be filed. Brown Aff. Ex. 1 at 11:30-35. George responded

that there was not going to be any report because this was a “civil

matter.” Id. at 11:35-50. Melonie and Ashley got into the rental

car driven by Sayeed Omar, Melonie’s friend,11 and proceeded to

10 Melonie’s mother is plaintiff Tase Brown. Melonie had been

living intermittently between Ashley’s apartment and her mother’s

house. Melonie Dep. at 18:25-19:9; Ashley Dep. at 8:13-10:9.

11 Sayeed Omar did not enter the dealership and is not a party

to this action.

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drive to Brown’s house, followed by three or four squad cars.12

Melonie Dep. at 17:6-24, 109:9-10.

En route to Brown’s home, Melonie called her mother on

Ashley’s cell phone and told her that she was leading the police to

her home. Id. at 82:4-10; Ashley Dep. at 40:4-14. Brown told

Melonie that she did not want the police at her home. Melonie Dep.

at 81:22-25; Ashley Dep. at 40:4-22. Omar then stopped the rental

car, and Melonie told the police that her mother did not want them

at her house. Melonie Dep. at 82:22-83:3; Incident Report at 8.

According to Melonie, the police told her that she would be

arrested if she did not continue to her mother’s house. Melonie

Dep. at 82:22-83:3. Brown heard this over the phone and decided to

allow Melonie to lead the police to her home. Id.

On arriving at Brown’s home, the police pulled up to the side

of the rental car and told Melonie and Ashley to stay in the

vehicle while they waited for the Richfield police to arrive.

Ashley Dep. at 43:21-44:9. Soon thereafter, three Richfield

officers arrived, and Ashley and Melonie exited the rental car and

walked towards Brown’s home.13 Ashley Dep. at 45:1-10; Incident

Report at 8. Brown then exited her home and, while in the middle

of the street, yelled at the police to leave her property. Melonie

12 The squad cars did not have their emergency lights on.

Melonie Dep. at 109:12.

13 It is unclear whether Omar remained in or exited the

vehicle.

8

Dep. at 83:25-84:14; Incident Report at 8.

Brown, Melonie, and Ashley went into the house, and several

police officers approached the front and back door and were also on

other areas of the property. Melonie Dep. at 84:5-14; Ashley Dep.

at 47:11-15; Brown Dep. at 31:23-32:3. Brown again told the

officers to leave her property. Brown Dep. at 33:12-14. Melonie

told the officers that she was not going to give up the vehicle

and, approximately twenty minutes after arriving at Brown’s home,

the officers departed. Melonie Dep. at 87:6-20; Incident Report at

0008.

George returned to the dealership to inform Zarras that

Melonie was not going to return the vehicle, and the dealership

decided to press criminal charges. Incident Report at 9. On

November 6, 2014, defendant Officer Kne executed a search warrant

and, pursuant to the warrant, seized the Captiva located in Brown’s

garage. Brown Dep. at 41:2-43:5; Incident Report at 16. Kne

arrested Brown for aiding and abetting a theft by swindle, and the

Captiva was returned to the dealership. Incident Report at 13, 16.

On the same day, Melonie learned about her mother’s arrest and

turned herself into police. Melonie Dep. at 89:11-91:17. Brown

and Melonie were released the same day, and both were acquitted

after separate trials. Melonie Dep. at 92:14-15, 101:22-102:5;

Brown Dep. at 59:10-60:2.

9

On January 5, 2015, plaintiffs filed suit alleging that

George and John and Jane Does unreasonably seized Melonie and

Ashley at the dealership (Count I), unreasonably seized Melonie and

Ashley in the escort to Brown’s home (Count II), and unreasonably

searched and seized Brown’s home (Count IV) all in violation of the

Fourth Amendment; that George unreasonably seized Melonie’s cell

phone in violation of the Fourth Amendment (Count III); and that

Kne and John and Jane Does violated the Fourteenth Amendment (Count

VI) and committed conversion (Count VII) by transferring the

Captiva to the dealership without due process.14 Defendants now

move for summary judgment.

DISCUSSION

I. Standard of Review

“The court shall grant summary judgment if 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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

A fact is material only when its resolution affects the outcome of

the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

14 Plaintiffs concede their Monell claims against the City of

Bloomington and their claims against all defendants for submitting

misleading statements to obtain a warrant (Count V) and defamation

(Count VIII). Pls.’ Opp’n Mem. at 1 n.1. Those claims, therefore,

are dismissed with prejudice, and the City of Bloomington is

dismissed from this action.

10

(1986). A dispute is genuine if the evidence is such that it could

cause a reasonable jury to return a verdict for either party. See

id. at 252 (“The mere existence of a scintilla of evidence in

support of the plaintiff’s position will be insufficient ....”).

On a motion for summary judgment, the court views all evidence

and inferences in a light most favorable to the nonmoving party.

Id. at 255. The nonmoving party, however, may not rest upon mere

denials or allegations in the pleadings but must set forth specific

facts sufficient to raise a genuine issue for trial. Celotex, 477

U.S. at 324. A party asserting that a genuine dispute exists - or

cannot exist - about a material fact must cite “particular parts of

materials in the record.” Fed. R. Civ. P. 56(c)(1)(A). If a

plaintiff cannot support each essential element of a claim, the

court must grant summary judgment because a complete failure of

proof regarding an essential element necessarily renders all other

facts immaterial. Celotex, 477 U.S. at 322-23.

II. John and Jane Doe Defendants

As a preliminary matter, defendants argue that the

unidentified defendants must be dismissed from the action as a

matter of law. It is improper for a court to dismiss unnamed

defendants early in litigation where it is likely that discovery

may lead to the defendant’s identification. Munz v. Parr, 758 F.2d

1254, 1257 (8th Cir. 1985). But a court may dismiss unnamed

defendants “when it appears that the true identity of the

11

defendant[s] cannot be learned through discovery or the court’s

intervention.” Id.

Here, discovery has been completed, the deadline for

amendments has passed, and plaintiffs do not seek additional

discovery or ask for the court’s intervention in identifying the

unnamed defendants. Indeed, plaintiffs do not state any opposition

to the defendant’s argument that these defendants should be

dismissed. Accordingly, the court dismisses the John and Jane Doe

defendants from this action with prejudice.

III. Fourth Amendment

A. Seizure at the Dealership (Count I)

The Fourth Amendment protects the “right of the people to be

secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures.” U.S. Const. amend. IV. This

right “protects people, not places, and wherever an individual may

harbor a reasonable expectation of privacy” and extends to protect

persons from unreasonable searches and seizures even as they

“walk[] down the street.” Terry v. Ohio, 392 U.S. 1, 9

(1968)(internal quotation marks and citation omitted). But not

every interaction “between policemen and citizens involves seizures

of persons.” I.N.S. v. Delgado, 466 U.S. 210, 215 (1984)(internal

quotation marks omitted)(quoting Terry, 392 U.S. at 19 n.16). A

seizure occurs when an officer restrains a person’s liberty through

either “physical force or show of authority.” Id. A seizure need

12

not always constitute a formal arrest; what first appears to be a

consensual encounter between law enforcement and a person “can be

transformed into a seizure or detention ... if, in view of all the

circumstances ..., a reasonable person would have believed that

[s]he was not free to leave.” Id. (internal quotation marks

omitted)(quoting United States v. Mendenhall, 466 U.S. 544, 554

(1980)).

George argues that no seizure occurred at the dealership

because a reasonable person would have felt free to leave.

Specifically, he points out that no physical force was used against

Ashley or Melonie and that he and the other officers stated that

they were there merely to assist in the exchange of vehicles. This

argument is not persuasive. First, as already discussed, a seizure

can occur even though no physical force is used. See Delgado, 466

U.S. at 215. Further, although George stated that this was a civil

matter, the officers also stated that they were there to respond to

a report of a stolen vehicle, specifically told Melonie and Ashley

that they were “detained” and not to move, and an officer blocked

the exit to the dealership as George spoke with Zarras. Under

these circumstances, a jury could reasonably conclude that George

seized Melonie and Ashley at the dealership. But the Fourth

Amendment only protects against “unreasonable” seizures. To

determine whether a seizure is reasonable, the court must first

determine what type of seizure occurred.

13

Generally, there are two types of seizures. The first is a

“brief investigative” stop that is limited in scope, commonly known

as a Terry stop. Navarette v. California, 134 S. Ct. 1683, 1687

(2014); see also United States v. Aquino, 674 F.3d 918, 923 (8th

Cir. 2012)(“[T]he scope of an investigatory detention under Terry

v. Ohio is limited.”). An officer may perform a Terry stop without

a warrant when the officer has “reasonable suspicion,” that is, the

officer has “a particularized and objective basis for suspecting

the particular person stopped of criminal activity.” Navarette,

134 S. Ct. at 1687 (internal quotation marks and citation omitted).

The officer cannot rely on “inarticulate hunches” to justify a

Terry stop. United States v. Jones, 606 F.3d 964, 966 (8th Cir.

2010)(internal quotation marks omitted)(quoting Terry, 392 U.S. at

22). The reasonable suspicion standard is “considerably less than

proof of wrongdoing by a preponderance of the evidence, and

obviously less than is necessary for probable cause.” Navarette,

134 S. Ct. at 1687 (internal quotation marks and citation omitted).

The second type of seizure is an arrest. An arrest occurs

when “an officer exceeds the permissible scope of Terry,” and it

“must be supported by probable cause.” Aquino, 674 F.3d at 924;

see also United States v. Smith, 648 F.3d 654, 659 (8th Cir.

2011)(internal quotation marks and citation omitted)(“A Terry stop

may become an arrest, requiring probable cause, if the stop lasts

for an unreasonably long time or if officers use unreasonable

14

force.”).

George argues that he performed a Terry stop and, therefore,

the reasonable suspicion standard should apply. Plaintiffs argue

that a probable cause standard should apply because George arrested

them. As to the detention at the dealership, the court agrees with

George.

George and the other officers only briefly detained Melonie

and Ashley at the dealership to investigate a report of a stolen

vehicle. None of the officers used force, and plaintiffs were not

detained any longer than was necessary. Further, in light of the

circumstances known by the officers at the time, it was reasonable

to briefly detain Melonie. Specifically, the manager of the

dealership called the police, accused Melonie of lying on her

credit application and refusing to return the Captiva, and gave

detailed facts to support his allegation. Therefore, George did

not violate Melonie’s Fourth Amendment rights by briefly detaining

her. See Anderson v. Cass Cty., Mo., 367 F.3d 741, 746 (8th Cir.

2004)(internal quotation marks and citation omitted)(“Officers are

entitled to rely on the veracity of information supplied by the

victim of a crime.”).

It was also reasonable for the officers to briefly detain

Ashley because she had accompanied Melonie to the dealership and

was present when the police arrived. The officers therefore had

reasonable suspicion to detain her in order to determine whether

15

and to what extent she was involved in the alleged crime.

Accordingly, George did not violate Ashley’s Fourth Amendment

rights either.

It is irrelevant that Melonie denies, and was later acquitted

of, lying on her application or that Ashley was never charged with

a crime because “an officer’s reasonable mistake can still give

rise to reasonable suspicion.” United States v. Cotton, 782 F.3d

392, 395 (8th Cir. 2015). As a result, the court grants summary

judgment as to Count I of the complaint.15

B. Continued Seizure in the Escort (Count II)

1. Unreasonable Seizure

George also argues that Melonie and Ashley were not seized

when they led the officers to Brown’s home because they did so

voluntarily. Although this may be true as to Ashley, a reasonable

jury could find that Melonie was seized. Melonie testified that

she only agreed to lead the officers to her mother’s house because

she did not want to be arrested and that she did not feel free to

divert from the caravan of police cars following her. Melonie Dep.

at 81:10-13, 82:22-83:3, 109:3-14. In addition, George confiscated

Melonie’s cell phone and identification. These facts, with all

reasonable inferences made in Melonie’s favor, support a conclusion

that Melonie reasonably believed that she was not free to leave the

15 Because the court finds that there is no constitutional

violation as to Count I, it will not address whether George is

entitled to qualified immunity as to that count.

16

car or stop leading the officers to her mother’s house. The same

facts do not apply to Ashley: she was not threatened with arrest

and none of her property was seized. Although she may have felt an

obligation to remain because of her sister’s situation, or because

she needed transportation home, this is not a seizure because it

was not the result of an officer’s use of force or a submission to

an officer’s authority. See Delgado, 466 U.S. at 215 (internal

quotation marks and citation omitted)(“Only when the officer, by

means physical force or show of authority, has restrained the

liberty of a citizen may we conclude that a seizure has

occurred.”). Accordingly, the court grants summary judgment on

Ashley’s claim against George in Count II.

Because a jury could find Melonie was seized, the court must

next determine whether a jury could find that the seizure was

unreasonable. Again, the parties dispute whether this was a

Terry stop or an arrest.

A Terry stop becomes an arrest when the “purported

investigatory stop exceed[s] the scope justified under the

circumstances.” Peterson v. City of Plymouth, Minn., 945 F.2d

1416, 1419 (8th Cir. 1991). In determining whether a Terry stop is

transformed into an arrest, a court considers:

(1) the number of officers and police cars involved, (2)

the nature of the crime and whether there is reason to

believe the suspect is armed, (3) the strength of the

officer’s articulable, objective suspicions, (4) the need

for immediate action by the officer, (5) the presence or

lack of suspicious behavior or movement by the person

17

under observation, and (6) whether there was an

opportunity for the officer to have made the stop in less

threatening circumstances.

Id. at 1419-20 (quoting United States v. Seelye, 815 F.2d 48, 50

(8th Cir. 1987)).

A jury could find that George exceeded what was permissible

under the circumstances by confiscating Melonie’s phone and

identification and forcing her to lead a caravan of three to four

police cars to her mother’s residence. First, the number of police

officers and cars involved in the incident was excessive given that

a nonviolent crime was alleged and that the two suspects were

unarmed and generally cooperative. Second, there was no need for

immediate action by George. George had Melonie’s and Ashley’s

contact information, knew the make and model of the allegedly

stolen car, and had at least a general idea of where the car was

located. Further, George himself appeared to believe that

immediate action was unnecessary based on his statement that the

dispute was a “civil matter.” Therefore, even if the dealership

decided to press charges, George could have arrested Melonie at a

later time, under less threatening circumstances, and after having

completed a more thorough investigation. Finally, there was no

apparent reason for George to confiscate Melonie’s identification

because he had her contact information. Under these circumstances,

and making all reasonable inferences in favor of Melonie, a

reasonable jury could find that George arrested Melonie by forcing

18

her to lead a caravan of police to her mother’s house. See id. at

1420 (finding that officers arrested plaintiff, who was accused of

stealing a snowblower, by placing him in the back of a squad car

for twenty minutes even though officers possessed plaintiff’s

contact information, could have arrested him at a later time, and

knew that the dispute was a civil matter).

Because a jury could conclude that George arrested Melonie

without a warrant, the court must next determine whether George had

probable cause to do so. See Aquino, 674 F.3d at 924 (“[A] Terry

stop that becomes an arrest must be supported by probable cause.”);

see also United States v. Evans, 851 F.3d 830, 835 (8th Cir.

2017)(“A warrantless arrest by law enforcement is reasonable where

there is probable cause to believe that someone has committed or is

committing a crime.”).

Whether probable cause exists “is determined according to the

totality of the circumstances.” Evans, 851 F.3d at 835.

Therefore, law enforcement “may not disregard plainly exculpatory

evidence, even if substantial inculpatory evidence (standing by

itself) suggests that probable cause exists.” Id. (internal

quotation marks and citation omitted). Although officers are not

required to conduct an unnecessarily burdensome investigation, they

“have a duty to conduct a reasonably thorough investigation prior

to arresting a suspect ....” Id. (internal quotation marks and

citation omitted).

19

George points to the accusations of the dealership manager and

the fact that Melonie arrived at the dealership in a rental vehicle

as evidence supporting probable cause for an arrest. The court is

not persuaded. In arresting Melonie, George disregarded evidence

that Melonie lacked the requisite intent to defraud the dealership.

Specifically, he ignored the fact that she arrived at the

dealership voluntarily with the first month’s car payment and her

statements that did not return the vehicle based on the advice of

legal counsel. Further, other than speaking with Zarras, George

did not undertake any investigation. Indeed, he did not even

inspect the allegedly fraudulent documents. Brown Aff. Ex. 1 at

8:00-8:45. Under these circumstances, a reasonable jury could well

conclude that George lacked probable cause to arrest Melonie.

3. Qualified Immunity

Having concluded that a reasonable jury could find that George

violated Melonie’s Fourth Amendment rights, the court must decide

whether he is entitled to qualified immunity. Littrell v.

Franklin, 388 F.3d 578, 582 (8th Cir. 2004). “The doctrine of

qualified immunity protects [law enforcement] officers from

personal liability under § 1983 insofar as their conduct does not

violate clearly established ... constitutional rights of which a

reasonable person would have known.” Baribeau v. City of

Minneapolis, 596 F.3d 465, 473 (8th Cir. 2010) (alteration in

original) (citation and internal quotation marks omitted). The

20

court applies the doctrine of qualified immunity in a manner that

“gives ample room for mistaken judgments by protecting all but the

plainly incompetent or those who knowingly violate the law.”

Walker v. City of Pine Bluff, 414 F.3d 989, 992 (8th Cir. 2005)

(internal quotation marks omitted)(quoting Hunter v. Bryant, 502

U.S. 224, 229 (1991)).

To determine whether George is entitled to qualified immunity,

the court first considers whether the alleged facts demonstrate

that their conduct violated a constitutional right and, if so,

whether the right claimed was clearly established at the time of

the alleged injury. Howard v. Kan. City Police Dep’t, 570 F.3d

984, 988 (8th Cir. 2009). “If the answer to either question is

no,” then the officers are entitled to qualified immunity. Doe v.

Flaherty, 623 F.3d 577, 583 (8th Cir. 2010). “A defendant cannot

be said to have violated a clearly established right unless the

right’s contours were sufficiently definite that any reasonable

official in the defendant’s shoes would have understood that he was

violating it.” Tatum v. Robinson, 858 F.3d 544, 547 (8th Cir.

2017)(internal quotations marks omitted)(quoting Plumhoff v.

Rickard, 134 S. Ct. 2012, 2023 (2014)). A court “must not define

clearly established law at a high level of generality,” id., but

there need not be “a case directly on point.” Id. (internal

quotation marks omitted)(quoting White v. Pauly, 137 S. Ct. 548,

551 (2017)(per curiam)). “There is no requirement that the very

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action in question has previously been held unlawful, but rather,

in the light of pre-existing law the unlawfulness must be

apparent.” Vaughn v. Ruoff, 253 F.3d 1124, 1129 (8th Cir.

2001)(internal quotation marks and citations omitted).

The court finds that George is not entitled to qualified

immunity. It is well established that a warrantless arrest of a

citizen without probable cause constitutes a violation of the

Fourth Amendment. It is also well established that a brief

detention becomes an arrest when it exceeds what is reasonable

under the circumstances. See Peterson, 945 F.2d at 1420 (holding

that officers were not entitled to qualified immunity when they

arrested plaintiff without probable cause by exceeding the

permissible scope of the investigatory stop). An objectively

reasonable officer in George’s position would not have believed

that forcing Melonie to lead a caravan of police cars to her

mother’s house and confiscating her identification and cell phone

was reasonably necessary under the circumstances. Nor would a

reasonable officer believe he had probable cause to arrest Melonie

for theft in light of the evidence available and lack of

investigation into the allegations. Because George is not entitled

to qualified immunity, the court denies summary judgment on

Melonie’s claim as to Count II.

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C. Seizure of Melonie’s Cell Phone (Count III)

1. Unreasonable Seizure

Count III of the complaint alleges that George violated

Melonie’s Fourth Amendment rights by unreasonably seizing her cell

phone. First, George argues that this claim fails as a matter of

law because there is no evidence that the phone was searched.16 But

the fact that George did not search the phone is irrelevant because

“seizures of property are subject to Fourth Amendment scrutiny even

though no search within the meaning of the Amendment has taken

place.” Soldal v. Cook Cty., 506 U.S. 56, 68 (1992).

Next, George argues that summary judgment should be granted on

this claim because the seizure of the phone was reasonable. A

warrantless seizure of property is “per se unreasonable unless it

falls within a well-defined exception to this requirement.” Dixon

v. Lowery, 302 F.3d 857, 862 (8th Cir. 2002). George does not

identify a specific exception, but argues that the seizure was

reasonable because it was related to his investigation of the

crime. The court is not persuaded. There is no evidence in the

record that suggests the phone was used or would be used in

furtherance of the alleged crime. Indeed, George fails to state

16 The parties do not dispute that Melonie’s phone was

“seized” as that term is understood under the Fourth Amendment.

See United States v. Jacobsen, 466 U.S. 109, 113 (1984)(“A

‘seizure’ of property occurs when there is some meaningful

interference with an individual’s possessory interest in that

property.”).

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exactly how seizing Melonie’s cell phone assisted him in

investigating the crime. To the extent that George seized the

phone in order to prevent Melonie from calling her mother to “mess

up the car,” Melonie Dep. at 82:4-10, there is no evidence that

Melonie planned to do so. As a result, a reasonable jury could

conclude that George violated Melonie’s Fourth Amendment rights by

unreasonably seizing her phone.

2. Qualified Immunity

George is not entitled to qualified immunity. It is clearly

established that the warrantless seizure of property is a per se

violation of the Fourth Amendment, and no objectively reasonable

officer in George’s position would have believed that there was a

legal basis for the seizure of Melonie’s cell phone. Therefore,

the court denies George’s motion for summary judgment as to Count

III.

D. Search and Seizure at Brown’s Home (Count IV)

In Count IV, Melonie Scott, Ashley Scott, and Tase Brown

allege that George violated their Fourth Amendment rights by

entering the curtilage of Brown’s home, despite Brown telling him

to leave. George argues that summary judgment should be granted as

to Melonie’s and Ashley’s claims because they did not have a

protected privacy interest in the property. The court agrees.

Violations of the Fourth Amendment “cannot be asserted by

persons lacking a legitimate expectation of privacy in the place

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searched.” United States v. Kuenstler, 325 F.3d 1015, 1020 (8th

Cir. 2003)(internal quotation marks and citation omitted). Ashley

has put forth no evidence that she had a reasonable expectation of

privacy in her mother’s house. And although Melonie lived

intermittently between Ashley’s apartment and her mother’s house,

there is no evidence that she had a privacy interest in her

mother’s house at the time of the incident. Indeed, neither Ashley

nor Melonie provide any evidence to rebut George’s argument that

they lacked a reasonable expectation of privacy in Brown’s home.

Therefore, summary judgment is granted on Ashley’s and Melonie’s

claims in Count IV.

Even assuming that Melonie and Ashley had a privacy interest

in the property, George argues that plaintiffs’ claims should be

dismissed because he entered the curtilage only to speak with

Brown, Ashley, and Melonie - not to search for evidence.

Plaintiffs contend that the officers entered Brown’s property,

after being told to leave, to conduct a search.

Although the curtilage of a citizen’s home is a

constitutionally protected area, police officers are permitted to

enter the curtilage in order to approach the home and knock

“because that is no more than any private citizen might do.”

Florida v. Jardines, 569 U.S. 1, 8 (2013)(internal quotation marks

and citation omitted). Police officers with no warrant, however,

are not free to do as they please; their actions are constrained by

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the implied license that “typically permits [a] visitor to approach

the home by the front path, knock promptly, wait briefly to be

received, and then (absent invitation to linger longer) leave.”

Id.

Here, George and the other officers entered the curtilage of

Brown’s home even though Brown told them that they were not

welcome. After knocking on the door, Brown again told them to

leave, but they continued to linger for about twenty minutes.

Therefore, a jury could conclude that George trespassed on Brown’s

property.

But trespass without an accompanying search is not a

constitutional violation. United States v. Jones, 565 U.S. 400,

408 n.5 (2012); see also United States v. Karo, 468 U.S. 705, 713

(1984)(“[A]n actual trespass is neither necessary nor sufficient to

establish a constitutional violation.”). Although Brown testified

that there were multiple officers on her property, plaintiffs point

to no evidence in the record showing that a search actually took

place. Further, even if a jury could infer that a search took

place, there is no evidence that George participated in the search.

As a result, the court grants summary judgment on Count IV.17

IV. Fourteenth Amendment (Count VI)

Melonie alleges that defendant Kne violated her rights under

17 Having concluded there is no constitutional violation, the

court need not decide whether George is entitled to qualified

immunity as to this count.

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the Fourteenth Amendment by transferring ownership of the Captiva

to the dealership without due process. Kne argues that summary

judgment should be granted on this claim because Melonie did not

have a protected property interest in the Captiva. The court need

not resolve the issue of whether Melonie had a protected property

interest in the Captiva, however, because even if she did, Kne did

not seize it without due process.

When property is seized, the process due to the owner is

notice and that the warrant is signed by a “neutral and detached

judicial officer.” Walden v. Carmack, 156 F.3d 861, 874 (8th Cir.

1998); see also City of West Covina v. Perkins, 525 U.S. 234, 240

(1999)(“[W]hen law enforcement agents seize property pursuant to

warrant, due process requires them to take reasonable steps to give

notice [to the owner] that the property has been taken....”). It

is undisputed that Melonie was notified of the seizure and that the

Captiva was seized pursuant to a valid warrant. Therefore, Kne did

not violate Melonie’s due process rights.

Melonie also contends that Kne violated her due process rights

by returning the car to the dealership even though the warrant

stated that the seized property was to remain in custody subject to

a court order.18 When property is seized pursuant to a search

18 The court notes that Minnesota law allows for the return of

allegedly stolen property to the owner. See Minn. Stat. § 609.523.

The statute sets forth certain requirements to ensure that the

property is returned to the true owner. See id. subdiv. 3(2)

(requiring the owner to provide satisfactory proof of ownership).

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warrant, there is no constitutional violation so long as there is

an adequate post-deprivation remedy. King v. Fletcher, 319 F.3d

345, 350 (8th Cir. 2003); see also Lathon v. City of St. Louis, 242

F.3d 841, 844 (8th Cir. 2001)(finding that having to file four

different replevin actions did not constitute an adequate post-

deprivation remedy). There is no evidence that Melonie lacked an

adequate remedy to challenge the seizure of the Captiva, nor that

the actions of the officers interfered with her ability to pursue

such a remedy. Therefore, Kne’s actions did not violate due

process.

Further, even if Kne violated Melonie’s constitutional rights,

she is entitled to qualified immunity. Melonie points to no legal

authority clearly establishing that returning allegedly stolen

property to its owner pursuant to a valid warrant is a

constitutional violation, and no reasonable officer in Kne’s

position would have believed she was violating Melonie’s rights in

doing so. The court therefore grants summary judgment as to Count

VI.

V. Conversion (Count VII)

Melonie also alleges that Kne committed the common law tort of

conversion by seizing the Captiva and returning it to the

Although Kne did not fulfill any of the requirements before

returning the car to the dealership, Melonie fails to provide any

reason why the violation of the statute, which is procedural and

does not confer any substantive rights, deprives her of due

process.

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dealership. The common law tort of conversion is defined in

Minnesota as “an act of willful interference with personal

property, done without lawful justification by which any person

entitled thereto is deprived of use and possession.” DLH, Inc. v.

Russ, 566 N.W.2d 60, 71 (Minn. 1997)(internal quotation marks and

citation omitted). To succeed on her conversion claim, Melonie

must have had a valid interest in the Captiva and show that Kne

unlawfully deprived her of that interest. Williamson v.

Prasciunas, 661 N.W.2d 645, 649 (Minn. Ct. App. 2003).

Assuming, without deciding, that Melonie held a property

interest in the Captiva, the seizure of the Captiva was not a

conversion because it was done with lawful justification - pursuant

to a valid warrant.

In addition, even if Kne lacked a lawful justification for

seizing the Captiva, the court finds that she is entitled to

official immunity under Minnesota law. “The doctrine of official

immunity protects public officials from liability for discretionary

actions taken in the course of their official duties.” Bailey v.

City of St. Paul, 678 N.W.2d 697, 700 (Minn. Ct. App. 2004). In

undertaking an official immunity analysis a court first asks

whether the conduct is discretionary or ministerial. Id. at 701.

If the conduct is discretionary, the court asks whether the

officer’s conduct was malicious or willful. Id. “In the official

immunity context, wilful and malicious are synonymous.” Rico v.

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State, 472 N.W.2d 100, 107 (Minn. 1991). “Generally, police

officers are classified as discretionary officers entitled to ...

immunity.” Johnson v. Morris, 453 N.W.2d 31, 42 (Minn. 1990).

Kne’s acquisition and execution of the search warrant were

discretionary. Further, there is no evidence that Kne acted

maliciously. See Rico, 472 N.W.2d at 107 (internal quotation marks

and citation omitted)(“Malice means nothing more than the

intentional doing of a wrongful act without legal justification or

excuse....”). As a result, Kne is entitled to qualified immunity,

and the court grants summary judgment on Count VII.

CONCLUSION

Accordingly, based on the above, IT IS HEREBY ORDERED that

defendants’ motion for summary judgment [ECF No. 41] is granted in

part as set forth above.

Dated: July 27, 2018

s/David S. Doty

David S. Doty, Judge

United States District Court

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