Carter v. Dunbar Police Department

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

CARLITO CARTER and

ANGELITA MOSLEY,

Plaintiffs,

v. CIVIL ACTION NO. 2:22-cv-00230

CPL. J. L. LUCIANO,

Defendant.

MEMORANDUM OPINION AND ORDER

The Court has reviewed the Defendant’s Motion for Summary Judgment (Document 25),

the Defendant’s Memorandum of Law in Support of Motion for Summary Judgment (Document

26), the Plaintiffs’ Response to Defendant’s Memorandum of Law in Support of Defendant’s

Motion for Summary Judgment (Document 27), the Defendant’s Reply Memorandum of Law in

Support of Motion for Summary Judgment (Document 28), all attached exhibits, and the Complaint

(Document 1). For the reasons stated herein, the Court finds the Defendant’s motion should be

granted.

FACTUAL BACKGROUND

The Plaintiffs, Carlito Carter and Angelita Mosley, initiated this action with a Complaint

(Document 1) filed on May 19, 2022. The Defendant is Corporal J.L. Luciano of the Dunbar

Police Department. The claims relate to a May 19, 2020 search of the Plaintiffs’ home. The

Complaint contains the following causes of action: Count I – Outrageous Conduct/Intentional

Infliction of Emotional Distress; and Count II – Violation of 42 U.S.C. § 1983, Fraudulent

Affidavit. The Plaintiffs seek relief including all damages recoverable under West Virginia law,

attorney’s fees and costs, and pre-and post-judgment interest.

In the light most favorable to the non-movant Plaintiffs, the facts are as follows:

Sometime before May 18, 2020, Lieutenant Rader of the Dunbar Police Department advised

Corporal Luciano, of the same department, that the home of Lieutenant Rader’s neighbor, located

at 1401 Grosscup Avenue, emitted the odor of marijuana and people were coming and going from

the house in the evening. The house at 1401 Grosscup Avenue was the home of the Plaintiffs,

Carlito Carter and Angelita Mosley. Lieutenant Rader’s purpose for making this report was out

of spite and frustration with his son, who had gone to the Plaintiffs’ home to smoke marijuana.1

In response to Lieutenant Rader’s report, Corporal Luciano2 went to the Plaintiffs’ home

and seized several trash bags that were sitting outside of the home’s garage. After removing the

trash to a separate location, Corporal Luciano found several items, including marijuana stems,

marijuana seeds, pieces of a green leafy substance which yielded a positive field-test result for

marijuana, and three pieces of mail addressed to Angelita Mosley of 1401 Grosscup Avenue.

Corporal Luciano then checked through available police reports and located a call from Angelita

Mosely made from the 1401 Grosscup Avenue address.

Armed with this information, Corporal Luciano obtained a search warrant for the Plaintiffs’

address. The search warrant stated that Corporal Luciano “made complaint on oath before the

1 To support this proposition, the Plaintiffs cite the deposition testimony of Angelita Mosley, not that of Lieutenant

Rader. (Pl. Resp. at 2, 7–8) (Document 27.)

2 In their briefing, the Plaintiffs state that it was Lieutenant Rader who began the trash pull at their residence, not

Corporal Luciano. (Pl. Resp. at 2.) However, the Plaintiffs point to no portion of the record that it was Rader that

executed the trash pull, while all available testimony and evidence indicate that Corporal Luciano executed the trash

pull.

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undersigned . . . that on the 18 day of May, 2020, and prior to the issuance of this warrant, in the

said County of Kanawha, Suspect Angelita Mosely did unlawfully [violate §] 60A-4-401.”

(Document 25-1.) The warrant further states that Corporal Luciano believed that “Makayla

Copley” was at the Grosscup address, with illegal drugs. (Document 25-1.) However, no one

named Makayla Copley was living at the address. No one in the Plaintiffs’ home knew of

Makayla Copley, and Corporal Luciano does not know anyone by that name.3

On May 19, 2020, Corporal Luciano and four other officers executed the search warrant

for Angelita Mosely’s home. The officers entered with their weapons drawn and placed three of

the men present at the scene in handcuffs but did not place Ms. Mosely in handcuffs. During the

search, Corporal Luciano seized a fake revolver, a digital scale with pieces of a green leafy

substance on it, $1,100 of U.S. currency, one bag containing 5.34 grams of marijuana, “marijuana

gummies,” and the cellphones of four people present in the home.

At some point during the search, Ms. Mosley was given a sheet of paper, “the affidavit for

search warrant.” This document not only had the incorrect name of “Makayla Copley” but also

the incorrect address of 332 ½ 16th Street, Dunbar, West Virginia.4 Ms. Mosely states that it was

not until discovery in this case that she was provided a search warrant with her name on it.

(Mosley Depo. at 43–44.)

3 Corporal Luciano states that the inclusion of Makayla Copley’s name was a typo, a carryover from a prior search

warrant dated May 11, 2020. (Luciano Depo. at 12:14–13:12) (Document 25-4.) The May 11, 2020 search warrant

was for 332 ½ 16th Street, Dunbar, West Virginia. Corporal Luciano was at the search pursuant to the May 11, 2020

warrant, but no one named Makayla Copley was found at that address.

4 The Plaintiffs have not provided this “affidavit for search warrant” to the Court. The Defendant does attach Exhibit

1 (Document 25-1), which includes the May 18, 2020 search warrant, along with a brief narrative section. The text

of the search warrant does include Makayla Copley’s name, but it also contains the correct address of 1401 Grosscup

Avenue. The Court is therefore unable to confirm if the “affidavit for search warrant” initially provided to Ms.

Mosely is the May 18 search warrant, the May 11, 2020 search warrant, or some different document that incorrectly

lists both Makayla Copley’s name and the incorrect address. Even assuming the document handed to Ms. Mosley

had both the incorrect name and address, the resolution of the motion does not change.

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APPLICABLE STANDARD

The well-established standard in consideration of a motion for summary judgment is that

“[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a)–(c); see also Hunt v. Cromartie, 526 U.S. 541, 549 (1999); Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Hoschar v.

Appalachian Power Co., 739 F.3d 163, 169 (4th Cir. 2014). A “material fact” is a fact that could

affect the outcome of the case. Anderson, 477 U.S. at 248; News & Observer Publ’g Co. v.

Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010). A “genuine issue” concerning

a material fact exists when the evidence is sufficient to allow a reasonable jury to return a verdict

in the nonmoving party’s favor. FDIC v. Cashion, 720 F.3d 169, 180 (4th Cir. 2013); News &

Observer, 597 F.3d at 576.

The moving party bears the burden of showing that there is no genuine issue of material

fact, and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex, 477 U.S.

at 322–23. When determining whether summary judgment is appropriate, a court must view all

of the factual evidence, and any reasonable inferences to be drawn therefrom, in the light most

favorable to the nonmoving party. Hoschar, 739 F.3d at 169. However, the nonmoving party

must offer some “concrete evidence from which a reasonable juror could return a verdict in his

favor.” Anderson, 477 U.S. at 256. “At the summary judgment stage, the non-moving party

must come forward with more than ‘mere speculation or the building of one inference upon

another’ to resist dismissal of the action.” Perry v. Kappos, No.11-1476, 2012 WL 2130908, at

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*3 (4th Cir. June 13, 2012) (unpublished decision) (quoting Beale v. Hardy, 769 F.2d 213, 214

(4th Cir. 1985)).

In considering a motion for summary judgment, the court will not “weigh the evidence and

determine the truth of the matter,” Anderson, 477 U.S. at 249, nor will it make determinations of

credibility. N. Am. Precast, Inc. v. Gen. Cas. Co. of Wis., 2008 WL 906334, *3 (S.D. W. Va.

Mar. 31, 2008) (Copenhaver, J.) (citing Sosebee v. Murphy, 797 F.2d 179, 182 (4th Cir. 1986). If

disputes over a material fact exist that “can be resolved only by a finder of fact because they may

reasonably be resolved in favor of either party,” summary judgment is inappropriate. Anderson,

477 U.S. at 250. If, however, the nonmoving party “fails to make a showing sufficient to establish

the existence of an element essential to that party’s case,” then summary judgment should be

granted because “a complete failure of proof concerning an essential element . . . necessarily

renders all other facts immaterial.” Celotex, 477 U.S. at 322–23.

DISCUSSION

The Defendant argues that he is entitled to summary judgment on both of Plaintiffs’ claims.

The Plaintiffs argue that it was a violation of the Plaintiffs’ Fourth Amendment rights for Corporal

Luciano to (1) never deliver to Ms. Mosley a proper search warrant for the search of the home and

(2) search the home in reliance on Lieutenant Rader’s tip.5 The Defendant argues that he is not

required to provide a proper warrant, and that probable cause existed to search the Plaintiffs’ home.

5 Although the Plaintiffs allege in their complaint that Corporal Luciano gave a “fraudulent” affidavit, the Plaintiffs

have seemingly retreated from this position. In their briefing, they have not made any argument, or pointed to any

evidence, showing that Corporal Luciano’s affidavit was submitted fraudulently. Rather, they argue that “Officer

Luciano’s mistake was the decision to search a home based off a tip by another officer of the department without first

investigating why Radar (sic) made the tip” and that such conduct “shows malice of the police department and

Luciano.” (Pl. Memo. at 9–10.) Generally, a “mistake” will not support a legal finding of “malice” or fraudulent

conduct.

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42 U.S.C. § 1983 states that:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress.

“To prevail on a § 1983 claim, [a plaintiff] must show that (1) they were deprived of a

federal statutory or constitutional right; and (2) the deprivation was committed under color of state

law.” Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (citing American Mfrs. Mut. Ins. Co. v.

Sullivan, 526 U.S. 40, 49–50 (1999)).

Regarding the Defendant’s failure to deliver a proper warrant, the “Fourth Amendment

does not require an officer to serve a search warrant before executing it.” U.S. v. Hurwitz, 459

F.3d 463, 472 (4th Cir. 2006) (citing Groh v. Ramirez, 540 U.S. 551, 562 n.5 (2004)). “In fact,

the Fourth Amendment is not offended where the executing officer fails to leave a copy of the

search warrant with the property owner following the search or fails even to carry the warrant

during the search.” Id. at 472 (in text citations omitted). The purpose of the warrant requirement

is to interpose “ex ante, the deliberate, impartial judgment of a judicial officer” and afford “ex post,

a right to suppress evidence improperly obtained.” Id. (citing U.S. v. Grubbs, 547 U.S. 90, 98

(2006)). Its purpose “does not protect an interest in monitoring searches or engaging the police

in a debate about the warrant.” Id. (citing Grubbs, 547 U.S. at 98).

Without a right to be presented with a search warrant, it cannot be said that the Plaintiffs

have a right to a warrant free of errors. Therefore, the Defendant’s failure to deliver the correct

warrant or a warrant free of errors does not rise to a violation of the Plaintiffs’ Fourth Amendment

rights.

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The Plaintiffs also argue that their Fourth Amendment rights were violated because

Corporal Luciano searched their home “based off a tip by another officer of the department without

first investigating why Radar (sic) made the tip.” (Pl. Memo. at 9–10.) The Fourth Amendment

shields the people from unreasonable searches and seizures. A home search ordinarily requires a

warrant. Fernandez v. California, 571 U.S. 292, 298, (2014). A warrant is to be supported by

probable cause, which requires that “there is 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).

It is true that a “tip is rarely adequate on its own to support a finding of probable cause”

and to establish probable cause it is often essential that an officer corroborate the tip. United

States v. Miller, 925 F.2d 695, 698 (4th Cir. 1991); see also United States v. McCraw, 920 F.2d

224, 227 (4th Cir. 1990) (“A combination of tips from an informant and first-hand corroborative

observation of suspicious activity will provide probable cause.”) A tip usually supports a finding

of probable cause when the police have either “(1) successfully used that [informant] on previous

occasions, and/or (2) have received or observed sufficient information to corroborate the

[informant’s] statements before obtaining a search warrant.” U.S. v. Carter, 2:18-CR-00257-

DCN, 2018 WL 6831124, at *7 (D.S.C. Dec. 28, 2018) (reviewing five cases from the Fourth

Circuit). Obviously, an informant’s motivations to make the tip also impact the reliability of the

tip.

However, the Fourth Amendment “does not require investigators to exhaust every potential

avenue of investigation before seeking and obtaining a warrant.” U.S. v. McNeal, 818 F.3d 141,

151 (4th Cir. 2016). Rather, the inquiry is simply whether “each warrant was supported by

probable cause.” McNeal, 818 F.3d at 151; see also Edens v. Kennedy, 112 Fed. Appx. 870, 874

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(4th Cir. 2004) (unpublished) (“the fact that [the investigating officer] could have followed up on

the tip in some other manner does not render the entry unconstitutional”). Accordingly, here, the

question is not whether Corporal Luciano should have probed into Lieutenant Rader’s motivations,

but whether the search warrant was supported by probable cause.6

Probable cause exists when “there are reasonably trustworthy facts which, given the totality

of the circumstances, are sufficient to lead a prudent person to believe that the items sought

constitute fruits, instrumentalities, or evidence of crime and will be present at the time and place

of the search.” United States v. Suarez, 906 F.2d 977, 984 (4th Cir. 1990). The determination

of probable cause is “a practical, common-sense decision.” Illinois v. Gates, 462 U.S. 213, 238

(1983). When reviewing a magistrate judge’s issuance of a challenged warrant, a court “may not

go beyond the information actually presented to the magistrate during the warrant application

process” and must ask “whether the magistrate judge had a substantial basis for finding probable

cause.” U.S. v. Lyles, 910 F.3d 787, 791 (4th Cir. 2018) (citing Gates, 462 U.S. at 238–39; Owens

ex rel. Owens v. Lott, 372 F.3d 267, 277 (4th Cir. 2004)).

Here, the magistrate had a substantial basis for finding probable cause and to issue the

warrant. The narrative attached to the warrant outlined the basic facts of Corporal Luciano’s

investigation:

(1) Lieutenant Rader told Corporal Luciano that he could smell the odor of marijuana coming

from the home at 1401 Grosscup Avenue and also witnessed vehicle traffic in the evening.

6 In so holding, the Court also refuses to accept any implied argument within the Plaintiffs’ position that a tip from a

fellow police officer should be viewed with a particular level of suspicion.

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(2) Corporal Luciano conducted a trash pull7 from garbage collected outside the Plaintiffs’

home, wherein he found seven marijuana stems, five marijuana seeds, pieces of marijuana

leaves in red cups, and mail belonging to Angelita Mosley.

(3) The field test returned a positive result that the leafy material was marijuana.

(4) Available reports showed that Angelita Mosley had made a call from that address.

The Fourth Circuit has expressed doubt “that a scintilla of marijuana residue or hint of

marijuana use in a trash can should support a sweeping search of a residence.” Lyles, 910 F.3d at

792 (4th Cir. 2018). For example, a single-instance trash pull that produced three empty packs of

rolling papers, a piece of mail addressed to a home, and three marijuana stems, without more, is

not enough to support a finding of probable cause. Id. at 793. Compare that with United States

v. Gary, where a single-instance trash pull, in response to an anonymous tip that drug related

activity was taking place, which produced plastic bags with heroin residue and bags with cut

corners indicating the distribution of narcotics, was sufficient to support a finding of probable

cause. 528 F.3d 324, 328-29 (4th Cir. 2008).

Even though the evidence from the trash pull conducted by Corporal Luciano leans toward

a “hint of marijuana use,” and a tip alone often cannot support probable cause, when combined,

the trash pull and the tip corroborate one another. The evidence from the trash pull pointed to

relatively recent marijuana use at 1401 Grosscup Avenue, which is bolstered by the tip’s content

that the odor of marijuana had recently been emanating from that same residence. Both the

evidence from the trash pull and the content of the tip were available to the magistrate at the time

Corporal Luciano applied for the warrant. Together, along with the evidence that Angelita

7 The Plaintiffs do not argue that the trash pull violated their Fourth Amendment rights.

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Mosley resided at the address, the tip and trash pull offer a substantial basis for a finding of

probable cause, and the issuance of the warrant. Therefore, the search of the Plaintiffs’ home did

not violate the Fourth Amendment. Thus, the Plaintiffs’ claims under 42 U.S.C. § 1983 cannot

survive summary judgment.

The Plaintiffs also argue that the Defendant’s conduct constitutes the intentional infliction

of emotional distress. In West Virginia, to establish a claim for intentional infliction of emotional

distress, a plaintiff must show:

(1) that the defendant's conduct was atrocious, intolerable, and so extreme and

outrageous as to exceed the bounds of decency;

(2) that the defendant acted with the intent to inflict emotional distress, or acted

recklessly when it was certain or substantially certain emotional distress would

result from his conduct;

(3) that the actions of the defendant caused the plaintiff to suffer emotional distress;

and,

(4) that the emotional distress suffered by the plaintiff was so severe that no

reasonable person could be expected to endure it.

Syl. Pt. 3, Travis v. Alcon Laboratories, Inc., 202 W.Va. 369, 504 S.E.2d 419 (1998). It is the

role of the trial court to determine “whether the defendant's conduct may reasonably be regarded

as so extreme and outrageous as to constitute the intentional or reckless infliction of emotional

distress” but it is the jury’s determination as to “whether conduct is in fact outrageous.” Syl. Pt.

4, Id.

Thus, it is the Court’s task to determine whether Corporal Luciano’s conduct “may

reasonably be regarded as so extreme and outrageous as to constitute the intentional or reckless

infliction of emotional distress.” Id. To constitute extreme and outrageous conduct, “the conduct

must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds

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of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.”

Harless v. First Nat. Bank in Fairmont, 289 S.E.2d 692, 705 (W. Va. 1982). “[C]onduct that is

merely annoying, harmful of one’s rights or expectations, uncivil, mean-spirited, or negligent does

not constitute outrageous conduct.” Courtney v. Courtney, 186 W.Va. 597, 413 S.E.2d 418, 423

(1991). Rather, the conduct must be so, that when the facts are recited “to an average member of

the community [it] would arouse his resentment against the actor, and lead him to exclaim,

‘Outrageous!’” Tanner v. Rite Aid of West Virginia, Inc., 194 W.Va. 643, 461 S.E.2d 149 (1995)

(citing Rest. 2d. of Torts § 46).

The Plaintiffs argue that “[o]btaining a search warrant from an officer for a personal

vendetta against the plaintiffs,” and failing to provide that search warrant to the Plaintiffs while

providing an affidavit with the wrong name and address to Plaintiff Mosely is extreme and

outrageous. (Pl. Memo. at 8.) The Defendant argues that Corporal Luciano’s conduct was not

even improper, and certainly not extreme and outrageous.

“[M]inor abuse of [] law enforcement authority” that rises to only “threats or petty

oppressions” does not constitute “extreme and outrageous conduct.” Weigle v. Pifer, 139 F. Supp.

3d 760, 778 (S.D.W. Va. 2015) (Copenhaver, J.). A review of cases applying West Virginia’s

standard, reveals that it is difficult to establish that even distasteful police conduct rises to the level

of extreme and outrageous conduct. Pegg v. Herrnberger, 845 F.3d 112, 122 (4th Cir. 2017) (a

lawful arrest free of excessive force is only “merely annoying” and therefore does not constitute

excessive force); Sammons v. Sowards, CV 3:21-0081, 2022 WL 828952, at *9 (S.D.W. Va. Mar.

18, 2022) (Chambers, J.) (mistaken, but lawful, investigation of a crime does not constitute

outrageous conduct); Woods v. Town of Danville, W.V., 712 F. Supp. 2d 502, 511 (S.D.W. Va.

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2010) (Goodwin, C.J.) (the arrest of the incorrect suspect, which resulted in the handcuffing and

lifting of the plaintiff did not qualify as outrageous); Bellotte v. Edwards, 3:08-CV-94, 2011 WL

13186263, at *5 (N.D.W. Va. Mar. 30, 2011) (failure to comply with a knock-and-announce rule

does not render a police entry extreme and outrageous); Lowe v. Spears, CIV.A. 3:06-0647, 2009

WL 1393860, at *6 (S.D.W. Va. May 15, 2009) (Chambers, J.) (grabbing and holding a suspect’s

arm to effectuate an arrest for a minor offense, possibly fueled by the officer’s frustration, does

not qualify as outrageous).

The Plaintiffs argue that the Defendant’s search of their home in furtherance of Lieutenant

Rader’s “personal vendetta” is extreme and outrageous. 8 But, as discussed above, the

Defendant’s search of the Plaintiffs’ home was lawful and supported by probable cause. Even if

the search was, as the Plaintiffs speculate, furthering a spite-filled mission of Lieutenant Rader,

Corporal Luciano was able to legally obtain a search warrant for the Plaintiffs’ home. Like an

arrest, a lawful search of a home, otherwise free of excessive force or unprovoked harassment

during the search, is not conduct that is “beyond all possible bounds of decency.” Pegg, 845 F.3d

at 122.

Similarly, it was not extreme or outrageous for a police officer to provide an incorrect

warrant to a suspect. Providing Plaintiff Mosely with an incorrect warrant is, at best, something

that is annoying or confusing. But annoying and confusing conduct is not “utterly intolerable,”

8 The evidence that Corporal Luciano knew about Lieutenant Rader’s “vendetta” is slim. Corporal Luciano’s

testimony is that he “don’t know anything about no son” of Lieutenant Rader. (Luciano Depo. at 24:2–6.) Without

knowledge of Lieutenant Rader’s son, it is unreasonable to assume that Corporal Luciano was acting in furtherance

of the feud. The only evidence cited to support Corporal Luciano’s knowledge of the supposed Rader feud is

testimony from Ms. Mosley. (Mosley Depo. at 43–44.) But it has not been disclosed or argued exactly how Ms.

Mosley knows that Corporal Luciano was “in” on the feud. Rather, it seems to be an instance “of building of one

inference upon another.” Perry v. Kappos, No.11-1476, 2012 WL 2130908, at *3 (4th Cir. June 13, 2012)

(unpublished decision) (quoting Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985)).

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nor would it make an average member of the community exclaim “Outrageous!” Therefore, a

jury could not reasonably find that the Defendant’s presentation of a warrant with an incorrect

name and address constitutes extreme and outrageous conduct.

The Plaintiffs simply have not produced evidence of conduct that, as a matter of law, could

be the basis of a claim for the intentional infliction of emotional distress. The Defendant has met

his burden of establishing that he is entitled to summary judgment on this claim. In sum, the

Plaintiffs have failed to produce evidence that would establish a genuine issue of material fact as

to either of the claims alleged in their complaint.

CONCLUSION

Wherefore, after thorough review and careful consideration, the Court ORDERS that the

Defendant’s Motion for Summary Judgment (Document 25) be GRANTED and that this matter

be DISMISSED.

The Court DIRECTS the Clerk to send a certified copy of this Order to counsel of record

and to any unrepresented party.

ENTER: June 12, 2023

Dire. Benger’

UNITED STATES DISTRICT JUDGE

SOUTHERN DISTRICT OF WEST VIRGINIA

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