Lemieux v. Bango

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 24-cv-80653-ALTMAN

AVENS LEMIEUX,

Plaintiff,

v.

JOSEPH BANGO, et al.,

Defendants.

___________________________/

ORDER

In this civil-rights complaint under 42 U.S.C. § 1983, our Plaintiff, Avens Lemieux, alleges that

four West Palm Beach police officers—Joseph Bango, “Agent Ward,” “Agent Louis,” and “Agent

Birch”—illegally searched him and seized his property during a June 4, 2021 traffic stop at a Ramada

Inn. See Amended Complaint [ECF No. 5] at 4–5. After reviewing Lemieux’s allegations, we’ll

DISMISS one claim without prejudice and allow the Amended Complaint to PROCEED on the

remaining three.

THE FACTUAL ALLEGATIONS

On the night of June 4, 2021, Lemieux and three passengers—including his thirteen-year-old

son—“entered the Ramada Hotel parking lot . . . where [Lemieux] was a guest meeting family.”

Amended Complaint ¶ A.1. While Lemieux was looking for a place to park, his car was “blocked off”

by the Defendants’ vehicles, “bright flood style lights were activated,” and the Defendants “jumped

out with weapons drawn, screaming and cursing at [Lemieux] and [the] passengers.” Id. ¶¶ A.3–A.5.

All the occupants of the vehicle were “patted down and searched” by the officers and Lemieux was

handcuffed. Id. ¶¶ A.6–A.7. Defendants Ward, Birch, and Bango “began to search [Lemieux’s] vehicle

without [his] consent” and did not even try “asking for [his] permission or consent to search [his]

vehicle or personal property.” Id. ¶ A.9. Lemieux told the Defendants that he “was not in possession

of anything illegal in [his] vehicle or [on his] person” and that his car only “contained [his] ‘medically

prescribed flowers’ with receipt of purchase and proof of prescription.” Id. ¶ A.11.

The Defendants conducted a “complete search of the vehicle and personal bags of property

[and] came up with nothing illegal.” Id. ¶ A.14. Lemieux tried to ask the Defendants why they stopped

(and were now searching) his vehicle, but the Defendants insisted that “it was just a regular traffic

stop.” Id. ¶ A.12. After Defendant Bango “jumped on his cell phone and made a brief call,”

Defendants Ward, Birch, and Bango conducted another search of Lemieux’s vehicle that came up

empty. Id. ¶¶ A.14, A.16. Those same three Defendants then “huddled up and made another phone

call.” Id. ¶ A.16.

After this second phone call, Defendants Ward and Birch approached Lemieux and “separated

[him] from the passengers of [his] vehicle.” Id. ¶ A.17. When Lemieux asked “if something was wrong,

and was [he] being taken to jail,” Defendants Ward and Birch said “no,” pointed at Lemieux’s

“crotch,” and explained that “[w]e’re going in there.” Id. ¶ A.18. Lemieux, who was still handcuffed,

was restrained by Defendant Birch against the side of his vehicle while “Ward start[ed] to unfasten my

pants and pull them down.” Id. ¶ A.20. During this strip search, Ward first “lift[ed] and move[d]

[Lemieux’s] testicles and penis around while shining [a] light in [Lemieux’s] crotch area,” and then

Birch “pushed” Lemieux over so that Ward could “spread [Lemieux’s] butt cheeks” and conduct a

search of the anal cavity. Id. ¶¶ A.21–A.23. This search was interrupted by Bango, who told Ward and

Birch that “we gotta go” after noticing that Lemieux’s sister had started to record the encounter. Id. ¶

A.24. The Defendants quickly pulled up Lemieux’s pants, uncuffed Lemieux, and “quickly dispersed

without issuing [Lemieux] any ticket or citation.” Id. ¶¶ A.25–A.26. After Lemieux noticed that his

“medical flowers” were missing from his vehicle, Lemieux’s son “said he witnessed Officer Bango

remove them from my vehicle[.]” Id. ¶ A.27.

THE LAW

The Court “shall review . . . a complaint in a civil action in which a prisoner seeks redress from

a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A (emphasis

added). The definition of a “prisoner” includes “any person incarcerated or detained in any facility

who is . . . accused of [or] convicted of . . . violations of criminal law.” Id. §1915A(c). In conducting

its screening of a prisoner’s complaint, the Court must “dismiss the complaint, or any portion of the

complaint,” when it is: (1) “frivolous, malicious, or fails to state a claim upon which relief may be

granted”; or (2) “seeks monetary relief from a defendant who is immune from such relief.” Id. §

1915A(b).

To state a claim upon which relief may be granted, a complaint’s factual allegations “must be

enough to raise a right to relief above the speculative level”—with “enough facts to state a claim to

relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). Under this

standard, legal conclusions “are not entitled to the assumption of truth” and are insufficient to state a

claim. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Moreover, “[w]here a complaint pleads facts that are

merely consistent with a defendant’s liability, it stops short of the line between possibility and

plausibility of entitlement to relief.” Id. at 678 (cleaned up).

ANALYSIS

Lemieux asserts four claims against the Defendants—two for the “unreasonable search[es]”

and two for the “unreasonable seizure[s].” See Amended Complaint at 8–9. In the first count, Lemieux

claims that all four Defendants “violated my [Fourth] Amendment right by searching my vehicle and

personal property without probable cause or consent during what was supposed to be a routine traffic

stop.” Id. ¶ B.1. In the second, Lemieux says that Defendants Ward and Birch “violated me” by

performing “an unreasonable strip search” and “touching my private parts.” Id. ¶¶ B.3–B.4. In the

third, Lemieux alleges that Defendant Bango violated the Fourth Amendment by “unreasonably

seizing my prescription medication without informing me and without leaving me with any reciept or

proof of items siezed[.]” Id. ¶ C.1 (errors in original). In the fourth, Lemieux contends that all four

Defendants unreasonably seized him when he was “pulled over at gunpoint” and then “handcuffed

and arrested” during a supposedly “routine traffic stop.” Id. ¶ C.2. We’ll address these claims in order.

A. Illegal Search of Lemieux’s Vehicle

We begin with Lemieux’s claim that all four Defendants violated the Fourth Amendment “by

searching my vehicle and personal property without probable cause or consent[.]” Id. ¶ B.1. To state

an illegal-search claim under § 1983, Lemieux must show that the Defendants conducted an

“unreasonable” search in violation of the Fourth Amendment. See Lenz v. Winburn, 51 F.3d 1540, 1551

(11th Cir. 1995) (“The Fourth Amendment prohibits only unreasonable searches[.]”). In the context

of a traffic stop, a law enforcement officer who doesn’t arrest the driver or passenger of a car may

conduct a warrantless search of a vehicle in one of two scenarios. First, the officer “may request

consent to search the vehicle.” United States v. Purcell, 236 F.3d 1274, 1281 (11th Cir. 2001) (citing

Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973)). Second, the officer may conduct a warrantless search

of the vehicle if—during the traffic stop—he or she acquires “probable cause to believe the vehicle

contains evidence of a crime.” United States v. Tamari, 454 F.3d 1259, 1264 (11th Cir. 2006); see also

United States v. Lindsey, 482 F.3d 1285, 1293 (11th Cir. 2007) (“The automobile exception [to the Fourth

Amendment] allows the police to conduct a search of a vehicle if (1) the vehicle is readily mobile; and

(2) the police have probable cause for the search.”).

Neither of these exceptions applies here. Lemieux says that he did not consent to the search.

In fact, he alleges that the Defendants never even “ask[ed] for [his] permission or consent to search

[his] vehicle or personal property.” Amended Complaint ¶ A.9. Lemieux also alleges that the

Defendants lacked probable cause to search his vehicle because they had no evidence that Lemieux

(or anyone else in the vehicle) had engaged in any criminal activity. See id. ¶ B.2 (“I was not witnessed

by any officers committing any type of crimes.”). Indeed, Lemieux repeatedly insisted to the

Defendants that he “was not in any possession of anything illegal” and that he “was with [his] child.”

Id. ¶¶ A.11, A.15.1 Since Lemieux has alleged that Defendants Bango, Ward, and Birch searched his

vehicle (and the “personal bags and property” inside the vehicle) without his consent and without

probable cause, he’s plausibly alleged that these three Defendants violated his Fourth Amendment

rights.

We come out the other way, however, on Defendant Louis. Although Lemieux says that each

of the Defendants (including Louis), violated the Fourth Amendment “by searching my vehicle and

personal property,” id. ¶ B.1, his own recitation of the facts does not support this conclusion. Lemieux,

in fact, twice alleges that only Defendants Bango, Ward, and Birch searched his vehicle and property.

See id. ¶ A.9 (“At this point Agent Ward, Agent Birch, and Joseph Bango began to search my vehicle

without my consent[.]”); id. ¶ A.16 (“After another search of my vehicle came back empty Officers

Ward, Birch, and Bango huddled up and made another phone call.”). Although Defendant Louis was

in the vicinity of the search, Lemieux makes it clear that Louis’s sole task was to watch him and the

other passengers during the search. See id. ¶ A.8 (“My passengers and I were then taken away from the

immediate vicinity of the vehicle and were ordered to sit on the floor . . . under the custody of Agent

Louis.”). Since Louis never searched Lemieux’s vehicle, he cannot be liable for violating Lemieux’s

Fourth Amendment rights. See Holland v. City of Auburn, Ala., 657 F. App’x 899, 904–05 (11th Cir.

1 Lemieux did admit that he was in possession of “medically prescribed flowers.” Amended Complaint

¶ A.11. But, even if we assume that this vague statement gave the Defendants probable cause to search

for controlled substances, Lemieux’s admission came after the Defendants began to search the vehicle.

See ibid. In other words, the facts alleged in the Amended Complaint still indicate that the Defendants

lacked probable cause when they began their search. And that’s the moment that matters. See New Jersey

v. T.L.O., 469 U.S. 325, 340 (1985) (“Ordinarily, a search—even one that may permissibly be carried

out without a warrant—must be based upon ‘probable cause’ to believe that a violation of the law has

occurred.” (emphasis added)).

2016) (“Plaintiff does not allege that Detective Creighton was involved with the vehicular search . . . .

Because Plaintiff has failed to provide any sort of factual connection between Detective Creighton’s

actions and the search of his car, the district court properly dismissed the claim.”); see also Brown v. City

of Huntsville, Ala., 608 F.3d 724, 737 (11th Cir. 2010) (“To establish § 1983 liability, a plaintiff must

show proof of an affirmative causal connection between a government actor’s acts or omissions and

the alleged constitutional violation[.]” (cleaned up)).

We’ll therefore allow Lemieux’s illegal-search claim to PROCEED against Defendants

Bango, Ward, and Birch, but we DISMISS without prejudice that same claim as to Defendant Louis.

B. Illegal Strip Search

Next, Lemieux asserts a second illegal-search claim against Defendants Ward and Birch for

the (allegedly) unreasonable and unnecessary strip search. See Amended Complaint ¶ B.3. A strip

search “absent particularized suspicion [is] unconstitutional[.]” Thomas ex rel. Thomas v. Roberts, 323

F.3d 950, 956 (11th Cir. 2003); see also Kastritis v. City of Daytona Beach Shores, 835 F. Supp. 2d 1200,

1216 (M.D. Fla. 2011) (Scriven, J.) (“Under the law, a law enforcement officer may subject an

individual to a strip search only upon a particularized showing of probable cause that would justify

‘going beyond a search of the outer clothing and belongings.’” (quoting Safford United Sch. Dist. No. 1

v. Redding, 557 U.S. 364, 374 (2009))).

Having carefully reviewed Lemieux’s allegations, we cannot say that Defendants Ward and

Birch had a sufficiently “particularized suspicion” to strip search Lemieux. The officers twice searched

Lemieux’s vehicle (and the personal items in it) and found, in Lemieux’s words, “nothing illegal[.]”

Amended Complaint ¶ A.14. Since there was no reason to suspect that Lemieux was hiding contraband

in or around his “private parts” after searching his vehicle, id. ¶ B.4, Lemieux has plausibly alleged that

Ward and Birch’s decision to strip search him was unreasonable under the Fourth Amendment, see,

e.g., Evans v. Stephens, 407 F.3d 1272, 1280 (11th Cir. 2005) (“Officer Stephens searched Plaintiffs’ car

for over ten minutes, and . . . found nothing about drugs. In addition, Stephens searched the area

surrounding the car and found nothing about drugs. . . . This lack of revealed evidence undermines

the reasonableness of Officer Stephens’s belief that Plaintiffs possessed drugs. Thus, we decide,

bearing all the circumstances in mind, that Officer Stephens violated Plaintiffs’ right to be free from

an unreasonable search when he performed an investigatory strip search for drugs [since] he was

without the necessary reasonable suspicion that Plaintiffs . . . had drugs[.]” (cleaned up)); D.H. by

Dawson v. Clayton Cnty. Sch. Dist., 830 F.3d 1306, 1317 (11th Cir. 2016) (holding that an officer’s decision

to “remove all of [D.H.’s] underclothing in front of D.H.’s peers bore no rational relationship to the

purpose of the search itself”).

This second claim, therefore, shall PROCEED to service.

C. Seizure of Property

Lemieux also accuses Defendant Bango of seizing his “prescription medication” without

“probable cause” and without telling Lemieux that his medication had been taken. Amended

Complaint ¶ C.1. A police officer violates the Fourth Amendment when he seizes a person’s property

either without probable cause or in an otherwise unreasonable manner. See Case v. Eslinger, 555 F.3d

1317, 1330 (11th Cir. 2009) (“Case argues that the retention of his seized property violated the Fourth

Amendment, but we disagree because Officer Davis had probable cause to seize Case’s property. . . .

[W]e [previously] explained that, if an initial seizure of property by officers constituted an illegal seizure

then ‘certainly, the continued retention of that property would be a constitutional violation as well.’”

(cleaned up & quoting Bruce v. Beary, 498 F.3d 1232, 1248 (11th Cir. 2007))). The “crucial inquiry” for

a seizure’s legality is whether it was “reasonable under all the circumstances.” United States v. Schandl,

947 F.2d 462, 465 (11th Cir. 1991) (quoting United States v. Wuagneux, 683 F.2d 1343, 1352 (11th Cir.

1982)).2

In a vacuum, Lemieux’s admission that he possessed “medically prescribed flowers,”

Amended Complaint ¶ A.11, might have given Bango sufficient probable cause to seize the flowers.

Although Lemieux is vague about what these “medically prescribed flowers” were, the only reasonable

reading of the Amended Complaint is that Lemieux possessed the “dried flowers” of “a plant of the

genus Cannabis” (i.e., marijuana)—which is a type of “low-THC cannabis” that can be prescribed by

doctors in the State of Florida. See FLA. STAT. § 381.986(1)(f); accord Fla. Dep’t of Health v. Florigrown,

LLC, 317 So. 3d 1101, 1107 (Fla. 2021) (finding that “section 381.986, [permits] the medical use of

‘low-THC cannabis’ for certain patients”).

But Florida’s legalization of medical marijuana didn’t repeal certain criminal statutes related to

the possession and use of marijuana in other contexts. Florida courts have repeatedly held that the

presence of low-THC cannabis in a vehicle is sufficient to establish probable cause that the driver may

have committed marijuana-related criminal offenses—even if law enforcement officers suspect that

the driver is a medical-marijuana user. See, e.g., Johnson v. State, 275 So. 3d 800, 802 (Fla. 1st DCA 2019)

(“[E]ven if smoking marijuana were legal altogether, the officers would have had probable cause based

on the fact that Johnson was operating a car. . . . [T]he possibility that a driver might be a medical-

marijuana user would not automatically defeat probable cause.” (citing FLA. STAT. § 316.193(1)(a)));

State v. Fortin, 383 So. 3d 820, 824 (Fla. 4th DCA 2024) (holding that “the officer had probable cause

to conduct the search” to determine if the defendant’s marijuana complied “with the statutory

requirements concerning medical marijuana packaging,” even though “the defendant had advised the

2 Lemieux’s illegal-seizure claim under the Fourth Amendment is distinct from “[a] complaint of

continued retention of legally seized property [which] raises an issue of procedural due process under the

Fourteenth Amendment[.]” Case, 555 F.3d at 1330 (emphasis added).

officer he had a medical marijuana card prior to the vehicle search” (citing FLA. STAT. §

381.986(14)(a))).

But, as we’ve said, Lemieux’s admission came after the Defendants (including Bango) began to

search his vehicle—allegedly without probable cause. See ante, at 5 n.1. A law enforcement officer may

only seize “incriminating evidence or contraband when it is discovered in a place where the officer has a

right to be.” Washington v. Chrisman, 455 U.S. 1, 6 (1982) (emphasis added) (citing Coolidge v. New

Hampshire, 403 U.S. 443, 465 (1971)); see also United States v. Rodgers, 924 F.2d 219, 221 (11th Cir. 1991)

(“The officers, therefore, can seize the contraband only if they can gain access to it under some prior

Fourth Amendment justification.” (citing Texas v. Brown, 460 U.S. 730, 738 (1983) (Rehnquist, J.,

plurality, op.))); United States v. Ochoa, 402 F. App’x 478, 484 (11th Cir. 2010) (“The plain-view doctrine

permits a warrantless seizure where the officer is lawfully located in the place from which the seized

object could be plainly viewed and has a lawful right of access to the object itself.”).

Put another away, Bango’s post-hoc acquisition of probable cause (by way of Lemieux’s

admission that there were “medically prescribed flowers” in his vehicle) didn’t justify the officers’

seizure of those “flowers” from Lemieux’s vehicle, because the Defendants lacked a “prior Fourth

Amendment justification” to search the car in the first place. Rodgers, 924 F.2d at 221; cf. United States

v. Ladson, 774 F.2d 436, 439 (11th Cir. 1985) (affirming suppression of seized evidence as “fruit of the

poisonous tree” where “Agent Markonni’s initial entry into the defendants’ home” was unlawful).

Although this is a much closer call than the others, at this screening phase of the case, we must

construe all facts (and resolve all reasonable inferences) in Lemieux’s favor. Viewing the Amended

Complaint that way, we’ll allow this claim to PROCEED.

D. False Arrest

Finally, Lemieux claims that all four Defendants falsely arrested and seized him when he was

“pulled over at gunpoint,” removed from his vehicle, and handcuffed. Amended Complaint ¶ C.2.

These actions, while perhaps excessive, did not violate Lemieux’s constitutional rights.

“An arrest without a warrant and lacking probable cause violates the Constitution and can

underpin a § 1983 claim[.]” Brown, 608 F.3d at 734. While we accept that the Defendants might have

lacked probable cause to arrest Lemieux, the complaint’s allegations indicate that Lemieux was never

arrested—and that he was, instead, temporarily detained during a traffic stop. See Arizona v. Johnson,

555 U.S. 323, 333 (2009) (“The temporary seizure of driver and passengers ordinarily continues, and

remains reasonable, for the duration of the [traffic] stop.”). And police officers may, in the name of

officer safety, remove a person from his vehicle (even by gunpoint) and handcuff him, even during a

routine traffic stop. See United States v. Spoerke, 568 F.3d 1236, 1248 (11th Cir. 2009) (“During a lawful

traffic stop, officers also may take steps that are reasonably necessary to protect their personal safety,

including requiring the driver and passengers to exit the vehicle as a matter of course.” (cleaned up));

see also United States v. Fields, 178 F. App’x 890, 893 (11th Cir. 2006) (“An officer’s action in handcuffing

a defendant or securing him in a patrol car does not automatically convert a [traffic] stop into an

arrest.”); Malcolm v. City of Miami Police, 574 F. App’x 881, 883 n.3 (11th Cir. 2014) (“Neither

handcuffing nor an officer’s drawing his weapon necessarily converts an investigative stop into a

custodial arrest.” (citing United States v. Hastamorir, 881 F.2d 1551, 1556–57 (11th Cir. 1989))).3 This is

especially true where, as here, the Defendants allowed Lemieux and his passengers to go free at the

end of the encounter “without issuing [Lemieux] a ticket or citation.” Id. ¶ A.26; see also Florida v. Royer,

3 Lemieux never alleges that the Defendants lacked a legal basis to conduct a routine traffic stop. See

generally Amended Complaint.

460 U.S. 491, 500 (1983) (“[A]n investigative detention must be temporary and last no longer than is

necessary to effectuate the purpose of the stop.”).

To be clear, we agree with Lemieux that the Defendants “seized” him when they ordered him

out of the car and handcuffed him. See Royer, 460 U.S. at 501 (holding that, during a traffic stop, “Royer

was effectively seized for the purposes of the Fourth Amendment”). We also acknowledge that the

Defendants’ decision to search Lemieux’s vehicle (and to strip search him) without probable cause

(allegations that underlie his first two claims) plausibly extended this initial seizure beyond its

constitutional limits. See United States v. Boyce, 351 F.3d 1102, 1106 (11th Cir. 2003) (“[A] traffic stop

must be of a limited duration. The stop ‘may not last ‘any longer than necessary to process the traffic

violation’ unless there is articulable suspicion of other illegal activity.” (quoting Purcell, 236 F.3d at

1277)). Here, we make clear only that the Defendants’ initial seizure of Lemieux—in the course of

initiating the traffic stop—was constitutional and did not result in a false arrest. For these reasons, we

DISMISS Lemieux’s false-arrest claim.4

* * *

Having screened the Amended Complaint under 28 U.S.C. § 1915A, we hereby ORDER

AND ADJUDGE as follows:

1. Lemieux’s illegal-vehicle-search claim against Defendants Bango, Ward, and Birch, his

illegal-strip-search claim against Defendants Ward and Birch, and his illegal-seizure claim

against Defendant Bango shall PROCEED to service.

4 To the extent this claim can be read as challenging the entire duration of Lemieux’s seizure as an illegal

arrest, we exercise our discretion to dismiss this claim—albeit without prejudice—because it is

duplicative of the relief he seeks in the Amended Complaint’s first two claims. See Manning v. Carnival

Corp., 2012 WL 3962997, at *2 (S.D. Fla. Sept. 11, 2012) (Altonaga, J.) (“Duplicative claims are those

that stem from identical allegations, that are decided under identical legal standards, and for which

identical relief is available. To promote judicial economy, a court should dismiss claims that are

duplicative of other claims.” (cleaned up)).

2. Lemieux’s remaining claims are DISMISSED without prejudice for failure to state

a claim upon which relief may be granted. See 28 U.S.C. § 1915A(b). Lemieux may, if he

wishes, file a Second Amended Complaint within twenty-one days of the Defendants being

served or within twenty-one days of the Defendants serving a responsive pleading under

Rule 12. See FED. R. CIv. P. 15(a)(1).

3. Lemieux’s motion to proceed im forma pauperis [ECF No. 6] is GRANTED. The Plaintiff

shall owe the United States $350.00, which the Plaintiff must pay to the Clerk of Court as

funds become available. ‘To effectuate those payments, the agency with custody over the

Plaintiff must forward these payments from the Plaintiffs prisoner account to the Clerk

of Court anytime the account balance exceeds $10.00. That agency shall continue to make

these payments until the Plaintiff has paid the filing fees in full. The Clerk SHALL send

a copy of this Order to the Palm Beach County Sheriffs Office’s Inmate Trust Fund

Department and this Court’s Financial Department.

4. Lemieux’s second motion to proceed 7 forma pauperis [ECF No. 9] is DENTED as moot.

5. We will direct the U.S. Marshals Service to serve the appropriate defendants in a separate

order. See FED. R. CIv. P. 4(c)(3).

6. ‘This case shall remain administratively CLOSED. Any party may move to reopen the case

once all of the remaining Defendants have been served.

DONE AND ORDERED in the Southern Cae 2024.

ROYK.ALTMAN ———~—

UNITED STATES DISTRICT JUDGE

ce: Avens Lemieux, pro se

12