# Pickens v. Hendricks

> District Court, W.D. North Carolina · September 12, 2024

URL: https://www.frixlaw.com/law-library/cases/10654188

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** September 12, 2024
- **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/10654188

## How later opinions describe it (automated extraction)

- holding that City Manger’s post-facto approval of an internal investigation finding no wrongdoing in plaintiff’s shooting death could not “undo” a constitutional violation and, thus, it was not traceable to a final policymaker’s action
- explaining that if “the ordinary response of the innocent … sufficed to create reasonable suspicion, then [the] reasonable suspicion requirement would become meaningless”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:21-cv-00030-MR

BRANDON PICKENS, )
)
Plaintiff, )
) MEMORANDUM OF
vs. ) DECISION AND ORDER
)
STEVEN HENDRICKS, et al., )
)
Defendants. )
_______________________________ )

THIS MATTER is before the Court on Defendants Quentin Miller and
Western Surety’s Motion for Summary Judgment [Doc. 176]; Plaintiff
Brandon Pickens’ Motion for Summary Judgment [Doc. 228]; and J.D.
Lambert, Jeff May, and Katherine Lewis’s Motion for Partial Summary
Judgment [Doc. 245].
I. BACKGROUND
On January 19, 2021, the Plaintiff Brandon Pickens (“Pickens” or
simply, “the Plaintiff”), filed this pro se civil rights action pursuant to 42 U.S.C.
§ 1983 addressing a January 20, 2018 traffic stop and strip search involving
the Plaintiff and his passenger, Marcus Hyatt. At the time he filed this action,
the Plaintiff was incarcerated on habitual felon and drug charges that are
unrelated to the January 20, 2018 incidents.1

The unverified Complaint passed initial review on the Plaintiff’s § 1983
claims and the Court exercised supplemental jurisdiction over Plaintiff’s
related North Carolina claims against Buncombe County Sheriff’s Office

(“BCSO”) deputies J.D. Lambert, Jeff May, and Katherine Lewis (the “Deputy
Defendants”); against Quentin Miller in his official capacity as Buncombe
County Sheriff; and for recovery on BCSO’s surety bond against Western
Surety Company (“Western”).2 [Docs. 1, 13]. The Plaintiff seeks actual,

compensatory, and punitive damages; a jury trial; and other relief that the
Court deems just and proper. [Doc. 1 at 9].
On August 27, 2019, more than a year and four months before the

Plaintiff filed the instant lawsuit, Marcus Hyatt filed a counseled civil rights
action in this Court addressing the incidents of January 20, 2018.3 See Case
No. 1:19-cv-250-MR-WCM (“Hyatt”). Hyatt asserted claims for false
imprisonment, false arrest, and assault and battery under North Carolina law

1 The Plaintiff has now been released. [See Doc. 266 (Notice of Change of Address)].

2 The Complaint also passed initial review against Asheville Police Officer Steven
Hendricks, but the claims against him were later dismissed with prejudice. [Docs. 25, 34].

3 Hyatt’s girlfriend, Ashley Barrett, was detained in a separate vehicle stop on January 20,
2018, as part of the same investigation. Ms. Barrett was also a plaintiff in the Hyatt civil
rights action.
against the Deputy Defendants; claims under § 1983 for unreasonable
sexually invasive search against Defendants May and Lambert; claims under

§ 1983 for unlawful search and seizure against the Deputy Defendants; and
a claim for action under the Sheriff’s Bond against Sheriff Miller and Western.
Following a multi-day trial, a jury reached a unanimous verdict on

several questions, including:
Did Defendant Lambert see Brandon Pickens’ vehicle change
lanes without signaling and affect the operation of another
vehicle?

YES

Did Defendant Lambert have reasonable suspicion to stop
Brandon Pickens’ vehicle?

YES

Did Defendant Lambert’s canine alert to Brandon Pickens’
vehicle?

YES
…
Did Defendant May smell crack cocaine on … Hyatt?

NO

Did Defendant May find a substance in Brandon Pickens’ vehicle
that produced a positive field test for cocaine?

NO….

[Hyatt Docs. 132, 134]. The jury deadlocked on several other questions
which the Hyatt parties agreed that the Court could resolve without a jury.
Subsequently, the Court found inter alia that Defendant May included
materially false statements (i.e., that he smelled the odor of crack cocaine

and that a substance found inside Pickens’ vehicle field-tested positive for
cocaine) in a warrant application to strip search Hyatt; that May conducted
the strip search in a manner that violated Hyatt’s right to be free from an

unreasonable sexually invasive search; and that May committed these acts
outside the scope of his official authority. [See Hyatt Doc. 142]. The Court
found that Hyatt should recover $50,000 from Defendant May on his § 1983
claims for unreasonable search and seizure, and on his North Carolina

claims for false arrest/ false imprisonment, and assault and battery. [Id.].
Hyatt’s other claims, including his claims on the Sheriff’s Bond, were
dismissed with prejudice. [Id.]. A Judgment was entered the same day.

[Hyatt Doc. 143]. While post-judgment motions were pending in Hyatt, the
Plaintiff attempted to intervene in the case, which was denied. [See, e.g.,
Hyatt Docs. 152, 159].
The instant case was stayed while Hyatt was being resolved. [See

Docs. 50, 143]. Once the stay was lifted, the parties filed cross-Motions for
Summary Judgment. [Doc. 176: Miller/Western MSJ; Doc. 228: Plaintiff’s
MSJ; Doc. 245: BCSO Partial MSJ.]. Thereafter, the Court entered Orders

in accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
advising the Plaintiff of the requirements for filing responses to the summary
judgment motions and of the manner in which evidence could be submitted

to the Court. [Docs. 188, 254: Roseboro Orders]. The parties filed
Responses and supporting materials4 [see Docs. 216, 251, 258, 259:
Plaintiff’s Resp.; Doc. 248: Miller/Western Resp.; Doc. 249: BCSO Resp.]
and Replies5 [Doc. 260: Miller/Western Reply; Doc. 256: Plaintiff’s Reply].

Having been fully briefed, these matters are ripe for disposition.
II. STANDARD OF REVIEW
Summary judgment shall be granted “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). A factual dispute is
genuine “if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A fact is material only if it might affect the outcome of the suit under
governing law. Id.
The movant has the “initial responsibility of informing the district court

of the basis for its motion, and identifying those portions of the pleadings,

4 The Court has considered relevant portions of the record, including the Plaintiff’s verified
filings, save for those which have been stricken. [See, e.g., Doc. 181 (unauthorized
Amended Complaint), Doc. 210 (Response and Declaration that were that were stricken
at Plaintiff’s request)].

5 The Deputy Defendants did not file a reply, and the time to do so has expired.
depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, which it believes demonstrate the absence of a genuine

issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(internal citations omitted).
Once this initial burden is met, the burden shifts to the nonmoving

party. The nonmoving party “must set forth specific facts showing that there
is a genuine issue for trial.” Id. at 322 n.3. The nonmoving party may not
rely upon mere allegations or denials of allegations in his pleadings to defeat
a motion for summary judgment. Id. at 324. Rather, the nonmoving party

must oppose a proper summary judgment motion with citation to
“depositions, documents, electronically stored information, affidavits or
declarations, stipulations …, admissions, interrogatory answers, or other

materials” in the record. See id.; Fed. R. Civ. P. 56(c)(1)(a). Namely, the
nonmoving party must present sufficient evidence from which “a reasonable
jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at
248. To that end, only evidence admissible at trial may be considered by the

Court on summary judgment. Kennedy v. Joy Technologies, Inc., 269 F.
App’x 302, 308 (4th Cir. 2008) (citation omitted).
When ruling on a summary judgment motion, a court must view the

evidence and any inferences from the evidence in the light most favorable to
the nonmoving party. Anderson, 477 U.S. at 255. Facts, however, “must be
viewed in the light most favorable to the nonmoving party only if there is a

‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380
(2007). As the Supreme Court has emphasized,
“[w]hen the moving party has carried its burden under
Rule 56(c), the opponent must do more than simply
show 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 issue for trial.’”
Matsushita Elec. Industrial Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87, 106 S. Ct. 1348 (1986)
(footnote omitted). “[T]he mere existence of some
alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be
no genuine issue of material fact.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-28, 106 S. Ct.
2505 (1986). 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, 550 U.S. at 380.
III. FACTUAL BACKGROUND
The relevant forecast of evidence, viewed in the light most favorable to

the Plaintiff, shows the following.6
Prior to January 20, 2018, Marcus Hyatt and Ashley Barrett lived
together in Candler, North Carolina (the “Residence”), in what law

enforcement considered to be a high-crime area. [Doc. 245-3: May Tr. at 4].
Law enforcement received seven complaints of drug activity within a half-
mile of the Residence during the months leading up to January 2018. [Id. at
4-5]. Sometime prior to January 20, 2018, an individual contacted the BCSO

and spoke to Defendant May about increased vehicle and foot traffic at the
Residence. [Id. at 5]. In response to that tip, BCSO members began
surveilling the Residence to determine whether any illegal activity appeared

to be occurring there. [Id. at 5-6]. Defendant May observed a red car parked
outside the Residence; upon investigation, he determined that the license
plate on the car had been stolen. [Id. at 8-10]. May also learned that Hyatt
had taken the red car for repairs, and that he was once observed sitting in

the vehicle for about a minute when it was parked outside his Residence.
[Id.].

6 The Court highlights the relevant forecast of evidence and the factual discrepancies
between the parties’ accounts of the incidents. As for the Plaintiff’s Motion for Summary
Judgment, the forecasts are taken in the light most favorable to the Defendants.
On January 20, 2018, Defendant May was notified of a new car parked
outside the Residence. [Id. at 11]. May ran the new car’s tag information in

his records management system (“RMS”) and learned that the car was
registered to the Plaintiff, a “known drug dealer” with over 70 prior charges
in Buncombe County including “habitual felon status, a VCI [Violent Crimes

Initiative] offender notification,7 prior charges for robbery, trafficking,
possession with intent, cocaine, possession of cocaine, assault, resist/delay
or obstruct officers.” [Id. at 11]. Defendant May notified the rest of the
investigative team of the foregoing, and Defendants Lambert and May drove

to the Residence to conduct additional surveillance. [Id. at 12-13].
The Plaintiff and Hyatt left the Residence in the Plaintiff’s vehicle and
headed towards Asheville. [Doc. 230: Plaintiff’s Decl. at ¶ 1]. Defendants

May and Lambert followed, with May in a marked patrol car and Lambert in
an unmarked car. [Doc. 245-3: May Tr. at 14, 16]. As soon as May’s patrol
car turned onto the road behind the Plaintiff’s car, the Plaintiff slammed on
the brakes. [Id. at 14-16]. May turned off the road. [Id.]. Lambert initiated a

traffic stop of the Plaintiff’s car at a gas station at approximately 12:30 p.m.
[Doc. 230: Plaintiff’s Decl. at ¶ 2; Doc. 167-5: Lambert First Interrog. 3]. The

7 A VCI notification informs law enforcement of individuals who have committed violent
assaults. [Doc. 245-3: May Tr. at 12].
evidence is conflicting as to whether the Plaintiff commited any traffic
violation or offense on January 20, 2018.8 [Doc. 104-1: Plaintiff’s Aff. at ¶ 6;

Doc. 230: Plaintiff’s Decl. at ¶ 8]. Lambert’s vehicle was not equipped with
a dashcam and his body worn camera (“BWC”) was not activated. [Doc.
167-5: Lambert First Interrog. 13]. Even if the BWC were activated, it would

have been blocked by the dashboard of Lambert’s car. [Id.].
Defendants May and Lewis joined Lambert at the gas station after the
traffic stop. [Doc. 230: Plaintiff’s Decl. at ¶ 3]. Lewis looked up the Plaintiff
and Hyatt in her RMS and she saw “multiple priors” and drug investigations.

[Doc. 245-4: Lewis Tr. at 14-15]. Lewis stood at the passenger side of the
Plaintiff’s car where Hyatt was sitting, and Lambert was at the driver’s side.
[Id. at 14]. Lewis observed Hyatt “nervously and rapidly texting on his cell

phone.” [Doc. 167-4: Lewis Second Interrog. 14].
Lambert deployed his drug-detecting dog around the exterior of the
Plaintiff’s car. [Doc. 230: Plaintiff’s Ex at 8]. The Plaintiff watched the dog
and saw no “conspicuous indication” of an alert, although the dog was

admittedly sometimes out of the Plaintiff’s sight. [Doc. 245-2: Depo. Tr. at 1-

8 Defendant Lambert states that he saw the Plaintiff’s car make multiple unsafe lane
changes without signaling, and pull out directly in front of another vehicle, and that he
also stopped the Plaintiff’s car for these infractions. [Doc. 167-5: Lambert First Interrog.
3]. However, as the Plaintiff denies committing any traffic violations, and because there
is no dashcam or body camera evidence depicting the Plaintiff’s driving, the Court must
accept the Plaintiff’s version of the facts as true.
3]. Lambert saw the dog alert to the passenger door seam and to the driver’s
door handle by rapidly breathing through his nose in those areas. [Doc. 230:

Plaintiff’s Ex. at 12 (Second RFA 18); Doc. 245-5: Lambert Tr. at 79; see Doc.
245-1: Partial MSJ Memo at 13]. The dog did not perform its final trained
response (sitting or lying down) at that time. [Doc. 230: Plaintiff’s Ex. at 8

(First RFA 14)].
The Deputy Defendants detained the Plaintiff and Hyatt and
collectively searched the Plaintiff’s vehicle. [Id. at 6-7 (First RFA 7)].
Defendant Lambert’s dog alerted to the interior of Plaintiff’s car and

performed the final trained response by lying down in the front passenger
seat. [Id. at 12 (Second RFA 18)].
At some point during the detention, the Plaintiff was patted down for

weapons, but none were found. [Doc. 230: Plaintiff’s Decl. at ¶ 4]. The
Plaintiff was handcuffed during the vehicle search. [Doc. 245-4: Lewis Tr. at
19; Doc. 230: Plaintiff’s Ex at 12 (Second RFA 20)]. Defendant Lewis felt
that it would not have been safe for the Plaintiff to be released from handcuffs

during the vehicle search, as she observed Hyatt and the Plaintiff engaging
in several “preflight indicators,” such as looking nervous, shaking, “viciously

9 The transcript of Lambert’s trial testimony is uncertifiable because the court reporter is
deceased.
texting,” looking at places where they might run, bending over and tying
shoes, pulling up pants and tightening belts. [Doc. 167-3: Lewis First

Interrog. 10; see also Doc. 167-4: Lewis Second Interrog. 12, 14]. Lewis
was certain that there was a high probability that Plaintiff and Hyatt would
flee if she did not take precautions. [Doc. 245-4: Lewis Tr. at 18-19].

Officers began the process for obtaining a warrant to search the
Plaintiff and Hyatt. The warrant application includes the following
information:
While searching the vehicle Deputy May recovered a substance
he thought to be cocaine. May utilized a field test kit to test the
substance and the substance tested positive for cocaine.

…

While searching the person of Hyatt Deputy May stated [that] he
smelled the odor he knows to be cocaine base crack emitting
from Hyatt’s person.

[Doc. 230: Plaintiff’s Ex at 24-25 (Warrant Application)] (paragraph numbers
omitted). May’s statements that he smelled crack on Hyatt and that he found
a substance in Plaintiff’s vehicle that field-tested positive for cocaine are
false.10 [Doc. 63: Plaintiff’s Verified Motion at ¶ 9; Hyatt Doc. 132: First
Verdict Sheet at 3].

10 These facts were found by the jury to be false in the Hyatt trial.
A warrant was issued to search the Plaintiff at 4:00 p.m. [Doc. 230:
Plaintiff’s Ex. at 19 (Warrant)]. Defendant May and BCSO Sergeant Stockton

escorted the Plaintiff into the gas station’s convenience store bathroom and
strip searched him at 4:05 p.m. [Doc. 230: Plaintiff’s Decl. at ¶ 5]. The
officers did not discover any drugs or other contraband on the Plaintiff’s

person. [Id. at ¶ 3]. The Plaintiff was then allowed to leave, roughly 3 ½
hours after the initial stop. [Id. at ¶ 7]. Neither the Plaintiff nor Hyatt was
charged with a drug offense as a result of the traffic stop. [Id. at ¶ 3].
However, Defendant May gave the Plaintiff a traffic citation for committing

the following infractions at 2:00 p.m. on January 20, 2018:
OPERATE A MOTOR VEHICLE ON A STREET OR HIGHWAY
BY FAILING TO SEE BEFORE TURNING FROM A DIRECT
LINE THAT SUCH MOVEMENT COULD BE MADE IN SAFETY.
NOT USING A TURN SIGNAL FOR THREE DIFFRENT [sic]
LANE CHANGES, ONE OF WHICH WAS MADE IN FRONT OF
ANOTHER VEHICLE. (G.S. 20-154)

[Id. at ¶ 7; Doc. 230: Plaintiff’s Ex at 26 (Citation)]. The Plaintiff pleaded not
guilty and told the District Attorney that he had been detained by officers at
the time when the infractions allegedly occurred. [Doc. 230: Plaintiff’s Decl.
at ¶ 9]. The District Attorney subsequently dismissed the traffic citation. [Id.
at ¶ 10; see Doc. 230: Plaintiff’s Ex. at 27].
Jack Van Duncan was the Buncombe County Sheriff between
December 4, 2006 and November 30, 2018. [Doc. 176-2: Duncan Decl. at
¶ 1]. He was responsible for overseeing law enforcement operations,
personnel matters, and policies for the BCSO. [Id.]. While Duncan was

Sheriff, all sworn deputy sheriffs were required to successfully complete the
NC Basic Law Enforcement Training (“BLET”) curriculum promulgated by the
North Carolina Sheriff’s Education and Training Standards Commission. [Id.

at ¶ 4]. All sworn deputies also completed annual in-service training
mandated by the Commission. [Id. at ¶ 5]. The Deputy Defendants had
completed BLET and were up-to-date on their annual in-service training on
January 20, 2018. [Id. at ¶¶ 6-7].

Sheriff Duncan adopted numerous policies regarding law enforcement
operations to ensure compliance with federal and state laws and to provide
guidance when dealing with difficult situations. [Id. at ¶ 8]. These policies

address, inter alia: BWCs [Doc. 176-3]; vehicle stops [Doc. 176-4]; searches
[Doc. 176-5]; transporting prisoners [Doc. 176-6]; and K9 operations [Doc.
176-7]. All sworn deputies were required to review the policies and to follow
them; failure to do so could result in discipline, including termination. [Doc.

176-2: Duncan Decl. at ¶ 9]. On January 20, 2018, there was no policy,
custom or practice within the BCSO that permitted deputy sheriffs to violate
the constitutional rights of any person, and Duncan approved no such policy

while he was Sheriff. [Id. at ¶ 16]. Duncan was not aware of a problem
involving deputies making traffic stops without reasonable suspicion and
searches of individuals without probable cause except as authorized by

Policy regarding Terry11 searches and consent searches. [Id. at ¶ 15].
On January 20, 2018, a $20,000 Sheriff’s Bond with Western was in
effect. [Doc. 176-8: Houston Decl. at ¶¶ 4-5]. Buncombe County additionally

purchased law enforcement liability coverage for wrongful acts by BCSO with
a retained limit of $500,000. [Id. at ¶¶ 10, 13-14; see Doc. 176-10]. BCSO
has not waived governmental immunity for state claims for a judgment
exceeding $20,000 and under $500,000.01. [Doc. 176-8: Houston Decl. at

¶ 19].
The Plaintiff and Hyatt complained to BCSO about the January 20,
2018 incidents. [Doc. 249-2: Plaintiff’s Depo. at 5-6]. A BCSO administrative

investigation found no policy violations or illegal activity by any BCSO
employees. [Doc. 216-1 (March 13, 2018 Hilliard Letter)]. The Plaintiff and
Hyatt then considered suing in federal court. The Plaintiff was contemplated
as a plaintiff in the Hyatt case; however, Hyatt chose to proceed without him

due to concerns that the Plaintiff’s drug involvement and incarceration could
harm Hyatt’s case. [Doc. 249-3: Hyatt Depo. at 5-6]. The Plaintiff therefore
filed this action separately and pro se.

11 Terry v. Ohio, 392 U.S. 1 (1968).
IV. DISCUSSION
A. Deputy Defendants’ Motion for Partial Summary Judgment

The Plaintiff brings claims against the Deputy Defendants under §
1983 for violations of his Fourth Amendment rights, assault and battery, false
arrest and false imprisonment, and trespass to property with regard to the

traffic stop, his detention, the searches of the Plaintiff’s vehicle and personal
property, and ultimately his strip search. [Doc. 1]. The Deputy Defendants
move for summary judgment on all of these claims except for those arising
out of the strip search, i.e., whether the strip search was justified, whether it

was conducted in a reasonable manner, and whether the Plaintiff is entitled
to damages arising from it. [Doc. 245-1 at 2].
The Deputy Defendants first argue that the traffic stop of Plaintiff’s car

was justified – independent of the disputed traffic infractions – by: (1) a
reasonable suspicion of drug activity; and (2) probable cause to believe that
an occupant of the vehicle was in possession of stolen property, i.e., the red
car. [Doc. 245-1: Partial MSJ Memo at 2]. They further argue that only

Defendant Lambert, and not Defendants May and Lewis, were involved in
the initial stop of the Plaintiff’s vehicle.
A traffic stop constitutes a seizure under the Fourth Amendment and

must be justified by reasonable suspicion of criminal activity or some other
exception to the generally applicable warrant requirement. United States v.
Feliciana, 974 F.3d 519, 522 (4th Cir. 2020). “[A] police officer can,

consistent with the Fourth Amendment, conduct a brief, investigative stop
(i.e., a Terry stop) predicated on reasonable, articulable suspicion that
criminal activity may be afoot.” Milla v. Brown, 109 F.4th 222 (4th Cir. 2024)

(internal quotations and citations omitted). An officer with reasonable
suspicion has “a particularized and objective basis for suspecting the
particular person stopped of criminal activity.” Kansas v. Glover, 589 U.S.
376, 380 (2020) (citing United States v. Cortez, 449 U.S. 411, 417-18

(1981)). Reasonable suspicion is a “commonsense, nontechnical” standard
that relies on the judgment of experienced law enforcement officers, “not
legal technicians.” Ornelas v. United States, 517 U.S. 690, 695 (1996)

(citation and internal quotation marks omitted). To support a finding of
reasonable suspicion, the detaining officer must “either articulate why a
particular behavior is suspicious or logically demonstrate, given the
surrounding circumstances, that the behavior is likely to be indicative of

some more sinister activity than may appear at first glance.” United States
v. Foster, 634 F.3d 243, 248 (4th Cir. 2011). Accordingly, “an officer’s
articulated facts must in their totality serve to eliminate a substantial portion

of innocent travelers before reasonable suspicion will exist.” United States
v. McCoy, 513 F.3d 405, 413 (4th Cir. 2008). Courts look to the totality of
the circumstances in determining whether an officer had reasonable

suspicion of criminal activity. United States v. Arvizu, 534 U.S. 266, 273
(2002). When considering the totality of the circumstances, the Court “must
not overlook facts that tend to dispel reasonable suspicion.” United States

v. Drakeford, 992 F.3d 255, 258 (4th Cir. 2021).
An arrest is a seizure under the Fourth Amendment, and such a seizure
is reasonable only if based on probable cause. Wilson v. Kittoe, 337 F.3d
392, 398 (4th Cir. 2003). Probable cause requires a fair probability that

contraband or evidence of a crime will be found in a particular place. Illinois
v. Gates, 462 U.S. 213, 238 (1983). Whether probable cause exists must be
determined “in the light of all of the surrounding circumstances.” Porterfield

v. Lott, 156 F.3d 563, 569 (4th Cir. 1998).
Here, the Deputy Defendants have not provided any concrete
indication that the Plaintiff or Hyatt were engaged in criminal activity.
Although the deputies had received a tip about increased foot traffic and

unfamiliar vehicles at the residence, that tip provided no additional
indications of drug trafficking, such as the identity of those visitors, the length
of the stops at the Residence, or the presence of a drug odor. United States

v. Velazco-Duranzo, 372 F.Supp.2d 520, 529 (D. Ariz. 2005) (explaining that
police officers lacked reasonable suspicion based on a tip from neighbors
who “reported seeing only three or four different vehicles, and the police had

no information as to whether the people coming and going were residents,
family members, frequent visitors, or strangers.”). The Plaintiff’s application
of his brakes upon seeing a marked patrol car pull behind him also is no

indication of criminal activity, because that conduct is common among the
general law-abiding public. See McCoy, 513 F.3d at 413; see also United
States v. Massenburg, 654 F.3d 480, 491 (4th Cir. 2011) (explaining that if
“the ordinary response of the innocent … sufficed to create reasonable

suspicion, then [the] reasonable suspicion requirement would become
meaningless”).
The forecast of evidence that the Plaintiff’s passenger, Hyatt, may

have owned or otherwise possessed a red car with stolen tags does not add
appreciably to this analysis. The Plaintiff and Hyatt were not driving the red
car at the time of the traffic stop. See generally United States v. Foster, 634
F.3d 243, 247 (4th Cir. 2011) (a person’s Fourth Amendment rights cannot

be lessened simply because he is “under investigation” by police); compare
United States v. Wheeler, 317 F.App’x 298, 299 (4th Cir. 2008) (holding that
there was no constitutional error with stopping and searching a car when

officers had a reasonable suspicion that the car being driven at that time was
stolen); Wilkinson v. Maese, No. 1:20-cv-783-MIS, 2021 WL 5416250, at *5
(D.N.M. Nov. 19, 2021) (holding that possession of a stolen vehicle was

sufficient to establish probable cause because the vehicle was indisputedly
in the plaintiff’s sole possession and plaintiff admitted that he had been
driving it). Moreover, there is no forecast of evidence that the red car was

stolen, only that the tag had been reported stolen, and the Defendants had
no information to suggest that Hyatt himself was responsible for the stolen
tag.
Because there are genuine issues of material fact as to whether

Defendant Lambert had probable cause or a reasonable suspicion to stop
the Plaintiff’s vehicle, the Court cannot determine the legality of the traffic
stop on summary judgment. See Fridley v. Horrighs, 291 F.3d 867, 872 (6th

Cir. 2002) (“In general, the existence of probable cause in a § 1983 action
presents a jury question, unless there is only one reasonable determination
possible.”). Summary Judgment will, however, be granted to Defendants
May and Lewis on this claim because the undisputed forecast of evidence

demonstrates that it was Defendant Lambert alone who initiated the traffic
stop.
Even so, the Deputy Defendants argue that Defendant Lambert is

entitled to qualified immunity on the Plaintiff’s claims for initiating the traffic
stop and that all of the Deputy Defendants are all entitled to qualified
immunity for the claims arising from the detention and searches that

followed.
“Qualified immunity protects officers who commit constitutional
violations but who, in light of clearly established law, could reasonably

believe that their actions were lawful.” Henry v. Purnell, 652 F.3d 524, 531
(4th Cir. 2011) (en banc). “To determine whether an officer is entitled to
qualified immunity, the court must examine (1) whether the plaintiff has
demonstrated that the officer violated a constitutional right and (2) whether

that right was clearly established at the time of the alleged violation.” E.W.
ex rel. T.W. v. Dolgos, 884 F.3d 172, 178 (4th Cir. 2018) (internal quotation
marks omitted). The doctrine of qualified immunity “gives government

officials breathing room to make reasonable but mistaken judgments and
protects all but the plainly incompetent or those who knowingly violate the
law.” Smith v. Ray, 781 F.3d 95, 100 (4th Cir. 2015) (internal quotation
marks omitted). An award of qualified immunity is inappropriate if a question

of material fact exists that, when resolved, would amount to the violation of
a clearly established constitutional right. See Quinn v. Zerkle, __ F.4th __,
2024 WL 3610110, *4 (4th Cir. Aug. 1, 2024); Ray v. Roane, 948 F.3d 222,

228 (4th Cir. 2020) (citing Smith, 781 F.3d at 100).
It is clearly established under the Fourth Amendment that individuals
have the right to be free from unlawful searches and seizures, including

traffic stops that are not justified by probable cause or a reasonable
suspicion. Hicks v. Ferreyra, 965 F.3d 302, 307 (4th Cir. 2020). Because
the forecast of evidence presents genuine disputes regarding whether

Defendant Lambert had a reasonable suspicion or probable cause to support
the traffic stop, the Court cannot determine at the summary judgment stage
whether a constitutional violation occurred with regard to the traffic stop.
Accordingly, the Defendant Lambert’s request for summary judgment based

on qualified immunity in initiating the traffic stop must be denied. Christian
v. Payne, 748 F.App’x 504, 506 (4th Cir. 2018) (stating that a “genuine
question of material fact regarding whether the conduct allegedly violative of

the right actually occurred must be reserved for trial”) (citing Schultz v. Braga,
455 F.3d 470, 476 (4th Cir. 2006)).
The Court also cannot determine as a matter of law whether the Deputy
Defendants are entitled to qualified immunity as to the Plaintiff’s claims that

are based on incidents that followed the initial traffic stop. The parties
present conflicting forecasts of evidence regarding significant events leading
up to and during the traffic stop, including the reasonableness of the length

of the detention and the justification for handcuffing the Plaintiff and for
searching him and his vehicle. If Defendant Lambert’s initial stop was not
supported by probable cause or a reasonable suspicion, the Plaintiff’s

continued detention and the subsequent searches would also be unlawful.
See Johnson v. Anhorn, 416 F.Supp.2d 338, 359 (E.D. Pa. 2006); Muir v.
Danner, No. 2:19-cv-00013, 2020 WL 4727072, at *5 (M.D. Tenn. Aug. 14,

2020), appeal dismissed, No. 20-5937, 2020 WL 6742325 (6th Cir. Sept. 16,
2020).
Because there are numerous factual issues regarding the Deputy
Defendants’ actions during the traffic stop, the Court cannot grant them

summary judgment based on qualified immunity as to the Plaintiff’s claims
regarding the traffic stop, the Plaintiff’s detention, and the subsequent
searches.

The same genuine disputes of material fact that exist regarding the
Defendants’ alleged violations of the Plaintiff’s Fourth Amendment rights also
preclude the Court from granting summary judgment for the Deputy
Defendants on the Plaintiff’s North Carolina claims. See, e.g., Rowland v.

Perry, 41 F.3d 167, 174 (4th Cir. 1994) (the parallel state law claim of assault
and battery is subsumed within a federal excessive force claim and goes
forward as well if the federal claim survives summary judgment).
Accordingly, the Deputy Defendants’ Motion for Partial Summary
Judgment is granted for Defendants May and Lewis as to the initial traffic

stop, but it is denied in all other respects.
B. Miller/Western’s Motion for Summary Judgment
The Plaintiff asserts state law claims against Sheriff Miller in his official

capacity and a claim against Western Surety on the Sheriff’s surety bond, as
well as § 1983 claims under a theory of municipal liability. Defendants Miller
and Western seek summary judgment because the Plaintiff has failed to
forecast sufficient evidence to support a § 1983 claim, and because

Defendant Miller has not waived his governmental immunity for the North
Carolina tort claims exceeding $20,000.00 and under $500,000.01. [Doc.
176-1].

Suits against sheriffs in their official capacity are in substance claims
against the office of the sheriff itself. Gannt v. Whitaker, 203 F.Supp.2d 503,
508 (M.D.N.C. Feb. 26, 2002). To succeed on such a claim, a plaintiff must
allege that a Sheriff’s Office policy or custom resulted in the violation of

federal law. See Monell v. New York City Dep’t of Social Servs., 436 U.S.
658, 694 (1978) (holding that in an official capacity suit, the entity’s “policy
or custom” must have played a part in the violation of federal law); Oklahoma

City v. Tuttle, 471 U.S. 808, 818-20 (1985) (discussing same). A plaintiff can
establish the requisite “policy” through a failure to train, if it “reflects a
‘deliberate’ or ‘conscious’ choice” to not do so. City of Canton v. Harris, 489

U.S. 378, 389 (1989). Proof of a single incident of unconstitutional activity is
not sufficient to impose liability under Monell, “unless proof of the incident
includes proof that it was caused by an existing, unconstitutional municipal

policy, which policy can be attributed to a municipal policymaker.” Tuttle,
471 U.S. at 823-24. In order to succeed on his official capacity claims,
therefore, the Plaintiff must not only prove the deprivation of a constitutional
right, but also that acts of a final decisionmaker caused the Plaintiff to be

subjected to such deprivation.
Here, the forecast of evidence demonstrates that BCSO deputies were
required to successfully complete training before being hired, complete in-

service training annually, and comply with BCSO written policies; that the
Deputy Defendants completed BLET training and annual in-service training;
that there was no policy, custom or practice within BCSO that permitted
deputy sheriffs to violate the constitutional rights of any person; and that

Sheriff Duncan was not aware of deputies searching individuals without
probable cause (except pursuant to policies that do not apply here).
While the Plaintiff states in Declarations that the Defendant Deputies

implemented an unwritten BWC policy that allowed them to conceal their
violations of the Plaintiff’s rights on January 20, 2018, [Docs. 257-1, 258-1:
Plaintiff’s Decls.], the Plaintiff’s forecast of evidence that the Deputy

Defendants used the unwritten BWC policy to conceal misconduct on a
single occasion fails to show the existence of a municipal custom or policy.
See Tuttle, 471 U.S. at 823-24. Moreover, the Plaintiff has not presented a

forecast of evidence attributing the unwritten BWC policy to a final
policymaker. As noted previously, the forecast of evidence demonstrates
that Sheriff Duncan enacted no such policy and was unaware that deputies
were violating individuals’ constitutional rights.

The Plaintiff now argues that Sheriff Duncan ratified the Deputy
Defendants’ wrongdoing by approving Hilliard’s administrative investigation
finding that no policy violations or illegal activity occurred, and that this gives

rise to Monell liability. [See Docs. 216, 232]. Even if the Plaintiff had
presented a forecast that Sheriff Duncan had approved Hilliard’s finding,
such after-the-fact approval could not have caused the Plaintiff’s alleged
injury. See Franklin v. City of Charlotte, 64 F.4th 519 (4th Cir. 2023) (holding

that City Manger’s post-facto approval of an internal investigation finding no
wrongdoing in plaintiff’s shooting death could not “undo” a constitutional
violation and, thus, it was not traceable to a final policymaker’s action).
Defendant Miller will, therefore, be granted summary judgment on the
Plaintiff’s Monell claims.

Defendants Miller and Western further argue that Miller has not waived
governmental immunity for North Carolina tort claims exceeding $20,000 and
under $500,000.01. [Doc. 176-1: Miller/Western MSJ Memo at 14-17]. The

Plaintiff agrees. [Doc. 216: MSJ Response at 1]. Accordingly, summary
judgment is granted on the Plaintiff’s surviving official capacity state tort
claims exceeding $20,000 and less than $500,000.01.12
Finally, Defendants Miller and Western argue that the Plaintiff’s

recovery on any surviving claims should be limited to the amount of the bond,
without the ability to sue repeatedly on the bond. [Doc. 176-1: Miller/Western
MSJ Memo. at 17; see Doc. 1: Compl. at ¶ 76 (Plaintiff seeks to “sue

repeatedly on the bond until the judgment is paid”)]. North Carolina Gen.
Stat. § 58-76-5 states that “[e]very person injured by the neglect, misconduct,
or misbehavior in office of any ... sheriff ... may institute a suit or suits against
said officer or any of them and their sureties.” A plaintiff’s damages are

limited to the extent to which the claims are covered under the bond
purchased. White v. Cochran, 229 N.C. App. 183, 190, 748 S.E.2d 334, 339

12 Had the Plaintiff had not conceded this point, the Court would have granted summary
for the reasons discussed by the Defendants. [See Doc. 176-1 at 14-17].
(2013). To the extent that the Plaintiff may recover damages against the
Sheriff, his recovery will be limited to the amount of the bond. See Morgan

v. Spivey, No. 5:16-cv-365, 2019 WL 81480, at *22-23 (E.D.N.C. Jan. 2,
2019) (collecting cases).
For the foregoing reasons, the summary judgment is granted for

Defendants Miller and Western as discussed in this section.
C. Plaintiff’s Motion for Summary Judgment
The Plaintiff argues that he should be granted summary judgment on
all of his claims pursuant to collateral estoppel, and that the case should

proceed to trial solely on damages. [Doc. 228 Plaintiff’s MSJ; Doc. 229:
Plaintiff’s MSJ Memo at 15]. Specifically, he argues that the following
determinations in Hyatt are binding on the parties in the instant action: (1)

that the “entire traffic stop” was unconstitutional because no there was no
lawful basis for Lambert to stop him, as demonstrated by the time variance
between the alleged infraction (12:30 p.m.) and the time noted in the traffic
citation (2:00 p.m.) [Doc. 229 at 11-15] and (2) that Defendant May violated

the Fourth Amendment with regard to the strip search by including false
material statements in the search warrant application [id. at 9-11].
Issue preclusion, sometimes called collateral estoppel, precludes a

party from relitigating an issue actually decided in a prior case and necessary
to the judgment. Lucky Brand Dungarees, Inc. v. Marcel Fashions Grp., Inc.,
590 U.S. 405, 411 (2020). Issue preclusion applies when later litigation

arises from a different cause of action between the same parties. In re Varat
Enters., Inc., 81 F.3d 1310, 1315 (4th Cir. 1996) (citing Allen v. McCurry, 449
U.S. 90, 94 (1980)). Issue preclusion operates to bar a party from

“relitigating an issue actually decided in a prior case and necessary to the
judgment.” Lucky, 590 U.S. at 411. For issue preclusion to apply, the
proponent must establish that:
(1) the issue sought to be precluded is identical to
one previously litigated; (2) the issue must have been
actually determined in the prior proceeding; (3)
determination of the issue must have been a critical
and necessary part of the decision in the prior
proceeding; (4) the prior judgment must be final and
valid; and (5) the party against whom estoppel is
asserted must have had a full and fair opportunity to
litigate the issue in the previous forum.

Sedlack v. Braswell Servs. Grp., Inc., 134 F.3d 219, 224 (4th Cir. 1998).
Offensive collateral estoppel occurs when a plaintiff employs the doctrine of
collateral estoppel to foreclose a defendant from litigating an issue that the
defendant previously litigated in an action with another party. Parklane
Hosiery Co. v. Shore, 439 U.S. 322, 326 n.4 (1979). There is a greater
possibility for unfairness from the use of offensive collateral estoppel, and
district courts are granted “broad discretion to determine when it should be
applied.” In re Microsoft Corp. Antitrust Lit., 355 F.3d 322, 326 (4th Cir.
2004). This discretion should not be exercised to permit the use of offensive

collateral estoppel “where a plaintiff could easily have joined in the earlier
action or where … the application of offensive collateral estoppel would be
unfair to a defendant….” Id. (listing additional nonexclusive factors) (quoting

Parklane Hosiery Co., 439 U.S. at 326 n.4).
As to the traffic stop, collateral estoppel does not apply to Defendant
Lambert’s alleged lack of reasonable suspicion for the traffic stop or to the
alleged illegality of the Plaintiff’s entire detention because no such final

determinations were reached in Hyatt. In making this argument, rather than
trying to apply any final judgment in Hyatt, the Plaintiff attempts to apply the
Court’s summary judgment conclusions in that prior case that several issues

of material fact existed. [See Doc. 229 at 7, 8]. However, the ultimate
conclusions that were reached in the Hyatt case found, to the contrary, that
the traffic stop and detention were justified, as discussed supra. See Hyatt
v. Miller, No. 1:19-cv-00250-MR-WCM, 2022 WL 3130108, at *2 (W.D.N.C.

Aug. 3, 2022). Accordingly, the Plaintiff’s attempt to rely on collateral
estoppel with regard to the legality of the traffic stop is rejected.
As to the conclusion that Defendant May violated the Fourth

Amendment with regard to the strip search of Hyatt, this conclusion has no
bearing on the constitutionality of May’s actions with respect to the strip
search of the Plaintiff, as they were two separate searches. Even if the

Plaintiff had been a party to the Hyatt litigation, the issue of the
constitutionality of the search performed on him would have been submitted
to the jury separately, and the jury would have had to determine whether the

particular circumstances of the Plaintiff’s search were constitutionally
permissible. The Court, therefore, declines to permit the use of offensive
collateral estoppel against Defendant May in the instant case. The Plaintiff’s
collateral estoppel arguments are, therefore, denied.

Insofar as the Plaintiff seeks summary judgment on his remaining
claims, this is also denied. There are genuine disputes of material fact
regarding the legality of the initial traffic stop and of the detention and

searches that followed as discussed supra. Accordingly, the Plaintiff’s
Motion for Summary Judgment on those claims is also denied.
V. CONCLUSION
For the reasons stated herein, the Court grants in part and denies in

part the Deputy Defendants’ Motion for Partial Summary Judgment, grants
Defendants Miller and Western’s Motion for Summary Judgment, and denies
Plaintiff’s Motion for Summary Judgment. The parties will be required to
notify the Court whether they object to a judicial settlement conference in this
matter.

ORDER
IT IS, THEREFORE, ORDERED that:

1. Defendants Quentin Miller and Western Surety’s Motion for
Summary Judgment [Doc. 176] is GRANTED.
2. Plaintiff Brandon Pickens’ Motion for Summary Judgment [Doc.
228] is DENIED.

3. Defendants J.D. Lambert, Jeff May, and Katherine Lewis’s
Motion for Partial Summary Judgment [Doc. 245] is GRANTED
IN PART AND DENIED IN PART. Specifically, the Motion is

GRANTED as to Defendants May and Lewis with respect to the
basis for the initial traffic stop. The Motion is DENIED with
respect to the Plaintiff’s claims related to the initial traffic stop by
Defendant Lambert, as well as his continued detention and the

subsequent searches of his vehicle and his person by
Defendants Lambert, May, and Lewis.
4. The parties shall notify the Court within fourteen (14) days of
this Order whether they object to a judicial settlement
conference in this matter.
IT 1S SO ORDERED.
Signed: September 12, 2024

Martifi Reidinger ey
Chief United States District Judge “lly

33

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10654188. Public record. Not legal advice.