# Bossio v. Bishop (INMATE 2)

> District Court, M.D. Alabama · December 9, 2019

URL: https://www.frixlaw.com/law-library/cases/10630032

## Case

- **Court:** District Court, M.D. Alabama
- **Decided:** December 9, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10630032

## How later opinions describe it (automated extraction)

- stating that a verified complaint serves the same purpose of an affidavit for purposes of summary judgment
- holding that moving party has initial burden of showing there is no genuine dispute of material fact for trial
- holding that to establish a genuine dispute of material fact, the nonmoving party must produce evidence such that a reasonable trier of fact could return a verdict in his favor

## Opinion text

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION

HECTOR MANUEL BOSSIO, JR., )
)
Plaintiff, )
)
v. )CIVIL ACTION NO. 3:16-CV-839-ECM-WC
)
CPL. DORA BISHOP (HUNTER), et al., )
)
Defendants. )

RECOMMENDATION OF THE MAGISTRATE JUDGE
I. INTRODUCTION
This 42 U.S.C. § 1983 action is before the court on a complaint filed by Hector
Manuel Bossio, Jr. (“Bossio”), a pre-trial detainee confined in the Russell County Jail,
asserting that his arrest on January 7, 2016 in Russell County was unlawful because the
police officers had no probable cause to detain, search and arrest him. Bossio names
Russell County police officers Corporal Dora Bishop and Sergeant Marc Cutt and Police
Chief Ray Smith, as defendants (collectively “the defendants”). He seeks monetary and
injunctive relief for the alleged violations of his constitutional rights.
The defendants filed an answer, special report, and supporting evidentiary
materials addressing Bossio’s claims for relief. In these documents, the defendants deny
violating Bossio’s constitutional rights.
After the defendants filed their initial special report, the court issued an order
directing Bossio to file a response to the arguments set forth by the defendants in the
report and advising him that his response should be supported by affidavits or statements
made under penalty of perjury and other appropriate evidentiary materials. (Doc. 46 at
pp. 1-2). The order specifically advised the parties that “at some time in the future the
court will treat the defendants’ report . . . as a dispositive motion[.]” Id. In addition, the
order specifically cautioned the parties that “unless within ten (10) days from the date of

this order a party files a pleading which presents sufficient legal cause why such action
should not be undertaken . . . the court may at any time [after expiration of the time for
the plaintiff filing a response to the order] and without further notice to the parties (1)
treat the special report and any supporting evidentiary materials as a motion for summary
judgment, and (2) after considering any response as allowed by this order, rule on the

motion in accordance with the law.” (Doc. 46 at p. 2). (emphasis in original). Bossio
filed a response to this Order on February 21, 2017. (Doc. 47).
Pursuant to the directives of the orders entered in this case, the court deems it
appropriate to treat the defendants’ reports as a motion for summary judgment. Upon
consideration of the defendants’ motion for summary judgment, the evidentiary materials

filed in support thereof, and the sworn complaint, the court concludes that summary
judgment is due to be granted in favor of the defendants.
II. SUMMARY JUDGMENT STANDARD
“Summary judgment is appropriate if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show there is

no genuine [dispute] as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258,
1263 (11th Cir. 2007) (internal quotation marks omitted); Rule 56(a), Fed. R. Civ. P.
(“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.”). The party moving for 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, including pleadings, discovery materials and affidavits], which it believes
demonstrate the absence of a genuine [dispute] of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986); Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593
(11th Cir. 1995) (holding that moving party has initial burden of showing there is no
genuine dispute of material fact for trial). The movant may meet this burden by

presenting evidence indicating there is no dispute of material fact or by showing that the
nonmoving party has failed to present appropriate evidence in support of some element of
its case on which it bears the ultimate burden of proof. Celotex, 477 U.S. at 322–24;
Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011) (holding that moving party
discharges his burden by showing the record lacks evidence to support the nonmoving

party’s case or the nonmoving party would be unable to prove his case at trial).
When the defendants meet their evidentiary burden, as they have in this case, the
burden shifts to the plaintiff to establish, with appropriate evidence beyond the pleadings,
that a genuine dispute material to his case exists. Clark v. Coats & Clark, Inc., 929 F.2d
604, 608 (11th Cir. 1991); Celotex, 477 U.S. at 324; Fed.R.Civ.P. 56(e)(3) (“If a party

fails to properly support an assertion of fact or fails to properly address another party’s
assertion of fact [by citing to materials in the record including affidavits, relevant
documents or other materials], the court may . . . grant summary judgment if the motion
and supporting materials—including the facts considered undisputed—show that the
movant is entitled to it[.]”); Jeffery, 64 F.3d at 593–94 (holding that, once a moving party
meets its burden, “the non-moving party must then go beyond the pleadings, and by its
own affidavits [or statements made under penalty of perjury], or by depositions, answers

to interrogatories, and admissions on file,” demonstrate that there is a genuine dispute of
material fact). In civil actions filed by inmates, federal courts “must distinguish between
evidence of disputed facts and disputed matters of professional judgment. In respect to
the latter, our inferences must accord deference to the views of prison authorities. Unless
a prisoner can point to sufficient evidence regarding such issues of judgment to allow him

to prevail on the merits, he cannot prevail at the summary judgment stage.” Beard v.
Banks, 548 U.S. 521, 530 (2006) (internal citation omitted). This court will also consider
“specific facts” pled in a plaintiff’s sworn complaint when considering his opposition to
summary judgment. Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1098 (11th Cir.
2014); Barker v. Norman, 651 F.2d 1107, 1115 (5th Cir. Unit A 1981) (stating that a

verified complaint serves the same purpose of an affidavit for purposes of summary
judgment). However, “mere conclusions and unsupported factual allegations are legally
insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321,
1326 (11th Cir. 2005).
A genuine dispute of material fact exists when the nonmoving party produces

evidence that would allow a reasonable fact-finder to return a verdict in its favor such
that summary judgment is not warranted. Greenberg, 498 F.3d at 1263; Allen v. Bd. of
Pub. Educ. for Bibb Cnty., 495 F.3d 1306, 1313 (11th Cir. 2007). The evidence must be
admissible at trial, and if the nonmoving party’s evidence “is merely colorable . . . or is
not significantly probative . . . summary judgment may be granted.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249–50 (1986), Fed. R. Civ. P. 56(e). “A mere ‘scintilla’ of
evidence supporting the supporting party’s position will not suffice[.]” Walker v. Darby,

911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252). Only disputes
involving material facts are relevant, materiality is determined by the substantive law
applicable to the case. Anderson, 477 U.S. at 248.
To demonstrate a genuine dispute of material fact, the party opposing summary
judgment “must do more than simply show that there is some metaphysical doubt as to

the material facts. . . . Where the record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party, there is no ‘genuine [dispute] for trial.’” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “The evidence of the
non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”
Anderson, 477 U.S. at 255. At the summary judgment stage, this court should accept as

true “statements in [the plaintiff’s] verified complaint, [any] sworn response to the
officers’ motion for summary judgment, and sworn affidavit attached to that response[.]”
Sears v. Roberts, 2019 WL 1785355, *3 (11th Cir. April 24, 2019); United States v. Stein,
881 F.3d 853, 857 (11th Cir. 2018) (holding that a plaintiff’s purely self-serving and
uncorroborated statements “based on personal knowledge or observation” set forth in a

verified complaint or affidavit may create an issue of material fact which precludes
summary judgment); Feliciano v. City of Miami Beach, 707 F.3d 1244, 1253 (11th Cir.
2013) (citations omitted) (“To be sure, [Plaintiff’s] sworn statements are self-serving, but
that alone does not permit [the court] to disregard them at the summary judgment stage . .
. . Courts routinely and properly deny summary judgment on the basis of a party’s sworn
testimony even though it is self-serving.”). However, general, blatantly contradicted and
merely “[c]onclusory, uncorroborated allegations by a plaintiff in [his verified complaint

or] an affidavit . . . will not create an issue of fact for trial sufficient to defeat a well-
supported summary judgment motion.” Solliday v. Fed. Officers, 413 F. App’x 206, 207
(11th Cir. 2011) (citing Earley v. Chamption Int’l Corp., 907 F.2d 1077, 1081 (11th Cir.
1990). In addition, conclusory allegations based on purely subjective beliefs of a plaintiff
and assertions of which he lacks personal knowledge are likewise insufficient to create a

genuine dispute of material fact. Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir.
1997). In cases where the evidence before the court which is admissible on its face or
which can be reduced to admissible form indicates there is no genuine dispute of material
fact and the party moving for summary judgment is entitled to it as a matter of law,
summary judgment is proper. Celotex, 477 U.S. at 323-24; Waddell v. Valley Forge

Dental Associates, Inc., 276 F.3d 1275, 1279 (11th Cir. 2001) (holding that to establish a
genuine dispute of material fact, the nonmoving party must produce evidence such that a
reasonable trier of fact could return a verdict in his favor). “The mere existence of some
factual dispute will not defeat summary judgment unless that factual dispute is material to
an issue affecting the outcome of the case.” McCormick v. City of Fort Lauderdale, 333

F.3d 1234, 1243 (11th Cir. 2003) (citation omitted). “[T]here must exist a conflict in
substantial evidence to pose a jury question.” Hall v. Sunjoy Indus. Group, Inc., 764 F.
Supp. 2d 1297, 1301 (M.D. Fla. 2011) (citation omitted). “When opposing parties tell
two different stories, one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372,
380 (2007).

Although factual inferences must be viewed in a light most favorable to the
plaintiff and pro se complaints are entitled to liberal interpretation, a pro se litigant does
not escape the burden of establishing by sufficient evidence a genuine dispute of material
fact. See Beard, 548 U.S. at 525. Thus, a plaintiff’s pro se status alone does not compel
this court to disregard elementary principles of production and proof in a civil case.

Here, after a thorough and exhaustive review of all the evidence which would be
admissible at trial, the court finds that Bossio has failed to demonstrate a genuine dispute
of material fact in order to preclude entry of summary judgment in favor of the defendant.
See Matsushita, 475 U.S. at 587.
The court has undertaken a thorough and exhaustive review of all the evidence

contained in the record. After this review, the court finds that Bossio has failed to
demonstrate a genuine dispute of material fact in order to preclude the entry of summary
in favor of the defendants.
III. RELEVANT FACTS1
On January 7, 2016, Defendant Officer Sgt. Cutt responded to a dispatch report of

a suspicious vehicle parked in the driveway of 1804 Timberland Drive in Phenix City,
Alabama. A 911-caller, identifying herself as residing at this address, reported that there

1 The facts are construed in the light most favorable to the plaintiff, as this court must do. See Beard, 548 U.S. at
was a suspicious vehicle parked in her driveway and that a man appeared to be asleep in
the car. The caller explained that she was not at home, but a neighbor had contacted her
about the vehicle in her driveway and she was concerned. (Doc. 34-1 at pp. 2-3). The
defendants filed with the Court an audio file which contained a recording of the 911 call.

(Docs. 34-6, 35-2). The Court has listened to the audio recording of the 911 call and
independently confirms that the 911 call is correctly summarized above.2
After receiving the dispatch call, Defendant Officer Sgt. Cutt arrived at 1804
Timberland Drive and identified a black Nissan Altima in the driveway. Sgt. Cutt asked
the Phenix City Police Department dispatch to run the license plate of the vehicle.

Dispatch advised Sgt. Cutt that it had been reported stolen through the Columbus Police
Department by Headquarters Nissan of Columbus, Georgia. (Doc. 34-1 at p. 3). The
defendants filed with the Court an audio file which contains recordings of the dispatch
communications with the defendant officers. (Doc. 34-6; Doc. 35-2). The Court has
listened to the audio recording of dispatch and the officers’ communications and

independently confirms that these communications are correctly summarized herein.
Approximately one minute later, Defendant Officer Cpl. Bishop arrived at the
residence. She and Sgt. Cutt approached the vehicle and attempted to wake the plaintiff.
While the plaintiff was placing his hands on the steering wheel as instructed, Cpl. Bishop
and Sgt. Cutt noticed a clear plastic bag containing some type of powdered substance

lying in the plaintiff’s lap. This substance was later identified as methamphetamine.
(Doc. 34-1 at p. 4; Doc. 34-2 at p. 2).

2 Pursuant to Orders of this Court, the plaintiff was provided the opportunity to listen to the
Sgt. Cutt instructed Cpl. Bishop to place hand cuffs on the plaintiff and to recover
the baggie from the subject’s lap. (Doc. 34-1 at p. 4). While placing handcuffs on the
plaintiff, Sgt. Cutt observed a pistol under the plaintiff’s leg and advised Cpl. Bishop of
it. (Doc. 34-1 at pp. 4-5; Doc. 34-2 at p. 4). Cpl. Bishop immediately instructed the

plaintiff to get on the ground. The plaintiff complied. Sgt. Cutt recovered a North
American Arms .22 caliber Derringer handgun silver in color which was fully loaded and
laying on the front seat of the car. (Doc. 34-1 at p. 5; Doc. 34-2 at p. 4). While lying on
the ground, the plaintiff identified himself as Hector Manuel Bossio and reported that he
did not have a permit to carry a pistol. (Doc. 34-1 at p. 5).

Dispatch also advised Cpl. Bishop that the plaintiff did not have a permit to carry a
pistol. (Doc. 34-2 at p. 4; Doc. 35-2). Dispatch further advised that the Columbus Police
Department had faxed to dispatch a warrant for plaintiff’s arrest for the stolen vehicle.
(Doc. 34-1 at pp. 5-6; Doc. 34-2 at p. 4; Doc. 35-2). Later, Cpl. Bishop discovered, when
reading the plaintiff’s criminal history, that the plaintiff was a convicted felon and

forbidden to carry a firearm. (Doc. 34-2 at p. 4). A search of Bossio’s person was
conducted and a large amount of cash was discovered on his person in his wallet. (Doc.
34-1 at p. 5). Sgt. Cutt completed a field test on the baggie recovered from the plaintiff’s
lap which tested positive for methamphetamine. (Doc. 34-1 at p. 6; Doc. 34-2 at p. 4).
The plaintiff was placed in the back of the patrol vehicle and Cpl. Bishop advised

him of his Miranda rights. Cpl. Bishop stated that Bossio acknowledged his rights and
stated he understood what his rights were. (Doc. 34-2 at p. 4). Cpl. Bishop noted Bossio
made several spontaneous statements. First, he stated that he was waiting to meet a
person named Jamie at the residence and fell asleep in the rental vehicle. He also stated
that he did not steal the vehicle and did not know Jamie’s last name. Further, Bossio
stated that he had the rental agreement which Cpl. Bishop reviewed and discovered that
the vehicle was due back on January 4, 2016 – three days before the arrest. (Doc. 34-2 at

pp. 4-5).
Next, Bossio gave two versions of how he came to possess the methamphetamine.
First, he stated that he did not notice there was a clear blue plastic bag containing
methamphetamine in his lap and that one of the officers could have put it there while he
was sleeping. After Cpl. Bishop told Bossio that his story was ridiculous, Bossio stated

that he was digging around in the vehicle and found the bag but did not know what the
substance was inside. Next, Cpl. Bishop asked Bossio about the gun and Bossio stated
that the pistol was already inside the vehicle when he rented the vehicle from
Headquarters Nissan. (Doc. 34-2 at p. 5).
During this time, Sgt. Cutt completed an inventory of the stolen/recovered Nissan

Altima. Sgt. Cutt recovered several items from the front side of the vehicle, and glove
compartment. These items included (1) a set of digital scales, (2) Samsung flip cellular
phones, (1) purple in color LG cell phone, (1) ZTE cell phone, (1) black in color Verizon
cellular phone, (1) black in color LG cellular phone and (1) rental vehicle contract. Also,
Sgt. Cutt recovered (1) gallon sized Ziploc bag, which contained (12) individual

packaged clear plastic bags with a crystal-like substance, suspected to be
methamphetamine. This item was located in the right passenger side trunk lining of the
vehicle, just above the wheel well. This item was secured for evidentiary purposes and
turned over to Cpl. Bishop. (Doc. 34-1 at pp. 6-7; Doc. 35-1 at p. 19).
After Sgt. Cutt located the bag of methamphetamine in the trunk, Cpl. Bishop
asked Bossio about it. Bossio stated that someone must have planted the drugs in his

vehicle. He also stated that he did not know the drugs were in the trunk. Bossio further
stated that someone took his money and his dope. Cpl. Bishop transported Bossio to the
Phenix City Police Department for further processing. (Doc. 34-2 at p.6). Bossio was
charged with the crimes of bringing stolen property into the state (13A-8-20), trafficking
in methamphetamine (13A-12-213), and certain persons forbidden to possess a pistol.

(13A-11-72). He was processed and booked into the Russell County Jail to await trial on
those charges. (Doc. 34-3 at p. 4).
IV. DISCUSSION
Bossio asserts that the defendants violated his constitutional right to be free from
an unlawful arrest. Specifically, he claims that the defendants had no probable cause to

arrest him and thus “[m]y rights where {sic] violated when the police searched me. My
rights were violated when I was arrested. My rights where {sic} violated when the police
took possession of my personal belongings.” (Doc. 1 at pp 5, 7). “The Fourth
Amendment’s guarantee against unreasonable searches and seizures encompasses the
right to be free from arrest without probable cause.” Crosby v. Monroe County, 394 F.3d

1328, 1332 (11th Cir. 2004).
To establish a violation of the Fourth Amendment, [a plaintiff] must
demonstrate that [his] arrest was unreasonable. Brower v. County of Inyo,
489 U.S. 593, 599, 109 S. Ct. 1378, 103 L.Ed.2d 628 (1989) (“Seizure
alone is not enough for § 1983 liability; the seizure must be unreasonable.”)
(quotation marks omitted). An arrest is unreasonable if it is not supported
by probable cause. Crosby v. Monroe County, 394 F.3d 1328, 1332 (11th
Cir. 2004). “Probable cause is defined in terms of facts and circumstances
sufficient to warrant a prudent man in believing that the suspect had
committed or was committing an offense.” Id. (citing Gerstein v. Pugh,
420 U.S. 103, 111, 95 S. Ct. 854, 43 L.Ed.2d 54 (1975).

Walker v. City of Hunstville, Ala., 310 F. App’x 335, 337 (11th Cir. 2009). “An arrest
without a warrant and lacking probable cause violates the Constitution and can underpin
a § 1983 claim, but the existence of probable cause at the time of arrest is an absolute bar
to a subsequent constitutional challenge to the arrest.” Brown v. City of Huntsville, Ala.,
608 F.3d 724, 734 (11th Cir. 2010).
“The probable-cause standard is incapable of precise definition or quantification
into percentages because it deals with probabilities and depends upon the totality of the
circumstances.” Maryland v. Pringle, 540 U.S. 366, 371 (2003). It is well-settled that
“probable cause is a flexible, common-sense standard. . . . [I]t does not demand any
showing that [the officer’s belief an offense has been or is being committed] is correct or
more likely true than false.” Texas v. Brown, 460 U.S. 730, 742 (1983). Probable cause
to arrest is present when the arrest is “objectively reasonable based on the totality of the
circumstances. . . . This standard is met when the facts and circumstances within the
officer’s knowledge, of which he or she has reasonably trustworthy information, would
cause a prudent person to believe, under the circumstances shown, that the suspect has
committed, is committing, or is about to commit an offense. . . . Although probable cause
requires more than suspicion, it does not require convincing proof . . . and need not reach
the [same] standard of conclusiveness and probability as the facts necessary to support a

conviction.” Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir. 2002) (internal quotation
marks and citations omitted); Brown, 608 F.3d at 734 (“Probable cause exists where the
facts within the collective knowledge of law enforcement officials, derived from
reasonably trustworthy information, are sufficient to cause a person of reasonable caution
to believe that a criminal offense has been or is being committed.”); see also Illinois v.

Gates, 462 U.S. 213, 232 (1983) (“[P]robable cause is a fluid concept — turning on the
assessment of probabilities in particular factual contexts — not readily, or even usefully,
reduced to a neat set of legal rules.”). “Whether probable exists depends upon the
reasonable conclusion to be drawn from the facts known to the arresting officer at the
time of the arrest.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004) (citing Pringle, 540

U.S. at 371).
“To determine whether an officer had probable cause to arrest an individual,
[federal courts] examine the events leading up to the arrest, and then decide ‘whether
these historical facts, viewed from the standpoint of an objectively reasonable police
officer, amount to’ probable cause.” Pringle, 540 U.S. at 371 (quoting Ornelas v. United

States, 517 U.S. 690, 696 (1996). In making this determination, a court must examine the
elements of the charge(s) on which the plaintiff was arrested as the question of
“[w]hether a particular set of facts gives rise to probable cause . . . to justify an arrest for
a particular crime depends, of course, on the elements of the crime.” Crosby, 394 F.3d at
1333.

It is undisputed that at the time of the arrest challenged herein the police officers
had learned from dispatch that the black 2015 Nissan Altima 4 d tag #PKN4877 GA/16
VIN 1N4AL3AP35C95514, which was registered to Headquarters Nissan of Columbus,
Georgia, had been reported stolen. (Doc. 34-2 at p. 3). It is also undisputed that while
the officers were knocking on the driver side window of the car, Cpl. Bishop noticed a
blue clear plastic bag containing a colored powder substance laying on the driver’s lap.
(Doc. 34-2 at p. 3). Later Sgt. Cutt conducted a field test on the substance using a NARK

II drug test kit and the substance tested positive for methamphetamine. (Doc. 34-2 at p. 4
and Doc. 34-1 at p. 6).
It is also undisputed that while Cpl. Bishop was handcuffing Bossio, Sgt. Cutt
observed a handgun under his legs. After Bossio was secured in cuffs, Sgt. Cutt
recovered a silver North American Arms, .22 caliber Derringer handgun which was

laying in the seat where Bossio was sitting. (Doc. 34-1 at pp. 4-5). Finally, when
searching the trunk of the Nissan Altima, Sgt. Cutt and Cpl. Bishop recovered, from
under the lining of the right passenger side of the trunk, a gallon size bag containing 12
clear plastic bags of a crystal-like substance which they suspected was
methamphetamine. (Doc. 34-1 at p. 7; Doc. 34-2 at pp. 5-6). The search of the vehicle

also produced the following (1) a set of digital scales, (2) Samsung flip cellular phones,
(1) purple in color LG cell phone, (1) ZTE cell phone, (1) black in color Verizon cellular
phone, (1) black in color LG cellular phones, and (1) rental vehicle contract. (Doc. 34-2
at p. 6; Doc. 35-1 at p. 19).
Based on all this information, Officer Bishop arrested Bossio for bringing stolen

property into the state pursuant to Ala. Code § 13A-8-20. (Doc. 34-2 at p. 4). Section
13A-8-20 directs that “[a]ny person who fraudulently brings into this state any personal
property which he knew was stolen elsewhere shall, on conviction, be punished as if he
had stolen it in this state.” At the time of the challenged arrest, the defendant officers
knew that the car in which Bossio was seated had been reported stolen through the
Columbus Police Department by Headquarters Nissan of Columbus, GA. (Doc. 34-1 at
p. 3). Further, the defendant officers were advised by Phenix City dispatch that Bossio

had outstanding warrants for his arrest through the Columbus Police Department. (Doc.
34-1 at pp. 5-6). Upon questioning, Bossio stated to Cpl. Bishop that he did not steal the
vehicle. Thereafter, Cpl. Bishop reviewed the rental agreement for the car, which Bossio
had in his possession, and discovered that the vehicle was due to be returned on January
4, 2016 – three days prior to the arrest. (Doc. 34-2 at p. 5). Accordingly, the Court

concludes probable cause existed to arrest Bossio for bringing stolen property into the
state pursuant to Ala. Code § 13A-8-20.
Further, after reading the criminal history on Bossio and learning that he was a
convicted felon and was forbidden to possess a firearm, Officer Bishop charged Bossio
under Ala. Code § 13A-11-72(a) for illegal possession of a firearm. (Doc. 34-2 at p. 4).

In addition, the audio evidence provided to the Court demonstrates that once Hector
Bossio was identified by the Defendant Officers to dispatch and a criminal history was
run, dispatch reported Bossio’s history showed convictions for past domestic violence.
(Docs. 34-6, Exhibit F -- Phenix City Police Department’s complete audio file from
January 7, 2016 relating to the plaintiff; Doc. 35-2). Section 13A-11-72(a) states as

follows:
“No person who has been convicted in this state or elsewhere of committing or
attempting to commit a crime of violence, misdemeanor offense of domestic
violence, violent offense as listed in Section 12-25-32(15), or anyone who is
subject to a valid protection order for domestic abuse, or anyone of unsound mind
shall own a firearm or have one in his or her possession or under his or her
control.”

“[O]wnership of a pistol is not a requirement for a violation of the statute; rather,
constructive possession of a pistol and a prior conviction for a crime of violence will
support a conviction [for being a felon in possession of a pistol under].” Burton v. State,
728 So.2d 1142, 1148 (Ala. Cr. App. 1997); Dickerson v. State, 517 So. 2d 625, 627
(Ala. Cr. App. 1986), rev’d on other grounds, 517 So. 2d 628 (Ala. 1987) (“[O]wnership
of a pistol is not a requirement to the violation of [Ala. Code § 13A-11-72(a)]; rather,
constructive possession of a pistol and a prior conviction for a crime of violence will
support a conviction.”); see also United States v. Howell, 425 F.3d 971, 976-77 (11th Cir.
2005) (holding that constructive possession of firearm by a convicted felon is prohibited
by federal law). Thus, an individual’s lack of ownership of a pistol is irrelevant to

whether probable cause existed to arrest him for a violation of Ala. Code § 13A-11-72(a).
Officer Bishop testified by affidavit that after reading the criminal history on
Bossio and learning that he was a convicted felon and was forbidden to possess a firearm,
she charged Bossio under Ala. Code § 13A-11-72(a) for illegal possession of a firearm.
(Doc. 34-2 at p. 4). This was confirmed by audio records of reports from Phenix City

dispatch, which this Court independently reviewed. (Doc. 34-6, Exhibit F; Doc. 35-2).
In addition, the facts and circumstances known to the Defendant Officers at the time of
Bossio’s arrest reasonably suggested that Bossio was in constructive possession of a
firearm. Consequently, probable cause existed to arrest Bossio for being a felon in
possession of a pistol.
Finally, after noting that the large bag of methamphetamine recovered from the
trunk of the Nissan Altima weighed approximately 341 grams total and included (11)
bags each weighing 28 grams and one bag weighing 33 grams, Cpl. Bishop, while at the
police station, charged Bossio with trafficking in methamphetamine under Ala. Code §

13A-12-231. (Doc. 34-2 at p. 6). Ala. Code § 13A-12-231 (7) states as follows:
(7) “[a]ny person who knowingly sells, manufactures, delivers, or brings into this
state, or who is knowingly in actual or constructive possession of, 28 grams or
more of 5-methoxy-3, 4-methylenedioxy amphetamine, or of any mixture
containing 5-methoxy-3, 4-methylenedioxy amphetamine is guilty of a felony,
which felony shall be known as “trafficking in illegal drugs” if the quantity
involved:
a. Is 28 grams or more, but less than 500 grams, the person shall be sentenced to
a mandatory term of imprisonment of three calendar years and to pay a fine of
fifty thousand dollars ($50,000).

Based on the amount of methamphetamine which was recovered by police during the
search of the vehicle which was rented in Bossio’s name and where he was sitting when
police answered the 911 call, the Court concludes that probable cause existed to arrest
Bossio for trafficking in methamphetamine. Thus, the Court concludes that Bossio’s
claim of false arrest fails.
V. CONCLUSION
Accordingly, it is the RECOMMENDATION of the Magistrate Judge that:
1. The defendants’ motion for summary judgment be GRANTED.
2. Judgment be GRANTED in favor of the defendants.
3. This case be dismissed with prejudice.
4. Costs be taxed against the plaintiff.
On or before December 23, 2019 the parties may file objections to this
Recommendation. A party must specifically identify the factual findings and legal
conclusions in the Recommendation to which the objection is made; frivolous,
conclusive, or general objections will not be considered.

Failure to file written objections to the proposed findings and recommendations in
the Magistrate Judge’s report shall bar a party from a de novo determination by the
District Court of factual findings and legal issues covered in the report and shall “waive
the right to challenge on appeal the district court’s order based on unobjected-to factual
and legal conclusions” except upon grounds of plain error if necessary in the interests of

justice. 11th Cir. R. 3-1; see Resolution Trust Co. v. Hallmark Builders, Inc., 996 F.2d
1144, 1149 (11th Cir. 1993); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989).
DONE this 9th day of December, 2019.

/s/ Jerusha T. Adams
JERUSHA T. ADAMS
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10630032. Public record. Not legal advice.