Micah Riggs v. Robert Gibbs

United States Court of Appeals

For the Eighth Circuit

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No. 17-3388

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Micah B. Riggs

lllllllllllllllllllllPlaintiff - Appellee

v.

Robert Gibbs, in his official capacity as a Kansas City, Missouri Police

Department Officer, and, as an individual; David Barbour, in his official capacity

as a Kansas City, Missouri Police Department Officer, and, as an individual;

Michael Feagans, in his official capacity as a Kansas City, Missouri Police

Department Officer, and, as an individual; Alan Whaley, in his official capacity as

a Kansas City, Missouri Police Department Officer, and, as an individual; Brad

Dumit, in his official capacity as a Kansas City, Missouri Police Department

Officer, and, as an individual; Chris Onik, in his official capacity as a Kansas City,

Missouri Police Department Officer, and, as an individual; Teddy Taylor, in his

official capacity as a Kansas City, Missouri Police Department Officer, and, as an

individual; Christopher Toigo, in his official capacity as a Kansas City, Missouri

Police Department Officer, and, as an individual

lllllllllllllllllllllDefendants - Appellants

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Appeal from United States District Court

for the Western District of Missouri - Kansas City

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Submitted: November 13, 2018

Filed: May 8, 2019

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Before GRUENDER, KELLY, and GRASZ, Circuit Judges.

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KELLY, Circuit Judge.

Micah Riggs’s businesses were searched three times by the Kansas City Police

Department (KCPD). He sued under 42 U.S.C. § 1983 for alleged Fourth and

Fourteenth Amendment violations as well as various common law causes of action.

Among others, Detective Robert Gibbs, Detective Chris Onik, Sergeant Brad Dumit,

Detective Teddy Taylor, Detective Christopher Toigo, Officer Michael Feagans, and

Officer David Barbour of the KCPD sought summary judgment on the basis of

qualified immunity, which the district court1 granted in part and denied in part. The

officers now appeal the district court’s order denying qualified immunity. We

dismiss for lack of jurisdiction.

I

A

We draw the following background facts from the district court’s summary

judgment opinion, which we must accept as true for purposes of deciding this appeal.

See Burnikel v. Fong, 886 F.3d 706, 709 (8th Cir. 2018) (“[W]e accept as true the

facts that the district court found were adequately supported, as well as the facts that

the district court likely assumed, to the extent they are not ‘blatantly contradicted by

the record.’” (quoting Thompson v. Murray, 800 F.3d 979, 983 (8th Cir. 2015))).

Riggs owned two businesses, Coffee Wonk and Wonk Exchange, on the first floor

of 3535 Broadway, Kansas City, Missouri. Coffee Wonk was located at 3535D

Broadway and Wonk Exchange at 3535A Broadway. Riggs also rented another unit,

Suite 201, on the second floor.

1

The Honorable Fernando J. Gaitan, Jr., United States District Judge for the

Western District of Missouri.

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On September 27, 2010, Officers Barbour and Feagans received a burglary call

from the owner of Suite 200 at 3535 Broadway. When they arrived, they investigated

the burglary, but were unable to find the burglar. They met Christopher Long, the

building manager, who accompanied Officer Barbour as he began to search the

second floor. Long opened the door to Suite 201, although there were no signs of

prior entry. After Long opened the door, Officer Barbour saw lab equipment in Suite

201. Officer Barbour did not see anything that led him to believe that the lab was

illegal or an active meth lab, but he did recognize chemicals marked with a skull and

cross bones, which he believed were dangerous. He and Officer Feagans then asked

Metro Meth Drug Task Force to process the lab, which it did without Riggs’s consent.

Items were seized from Suite 201.

That same day, Detective Toigo received a call that a robbery had occurred at

Coffee Wonk. When he arrived, he interviewed the Coffee Wonk store clerk and

began processing the scene. He looked behind the counter for fingerprints. He also

went to the parking garage adjacent to the building, where he found some Syn brand

incense. He called Detective Taylor, who then arrived at the scene with Detective

Acton. At some point, Detective Toigo showed Detective Taylor packages of Syn

incense located behind the counter at Coffee Wonk. They did not immediately know

whether the Syn incense was illegal. Riggs also arrived at Coffee Wonk. Detectives

Toigo, Taylor and Acton seized Syn incense from behind the Coffee Wonk counter.

B

In 2012, Gary Majors, manager of the city authority in charge of regulating

liquor licenses, received a tip that a business at 35th and Broadway with “coffee” in

its name was selling K2, a synthetic cannabinoid. Majors searched the electronic

database and determined that an establishment named “Coffee Wonk” at 3535

Broadway had a liquor license. At Majors’s instruction, an employee e-mailed

Sergeant Dumit and explained that Majors had received a complaint regarding K2

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sales at Coffee Wonk, an establishment that sells alcohol. Some time later, Majors

realized that Coffee Wonk did not have a liquor license, but he made no effort to

inform KCPD of his mistake.

On October 3, 2012, Detective Whaley entered Coffee Wonk to attempt a

controlled buy. He asked for either Mr. Happy or Mr. Green. The clerk explained

that Coffee Wonk did not have either of these brands of incense and sold him Remix,

which was stored under the counter and out of sight. Detective Whaley believed the

item he purchased was contraband because of its packaging and the way it was sold.

Shortly after Detective Whaley purchased the Remix, Detectives Onik and Gibbs

entered Coffee Wonk. Sergeant Dumit followed them. Detective Gibbs could not see

the Remix supply until he went behind the counter near the register, at which point

he seized all that he found. Detective Gibbs also seized an envelope full of money,

which included the money Detective Whaley used to buy the Remix. Detective Onik

seized Remix found in a back room.

C

On August 1, 2014, Riggs brought suit against the officers involved in the 2010

search and the 2012 raid, claiming that both warrantless searches violated his rights

under the Fourth Amendment. On February 2, 2017, the officers moved for summary

judgment on the basis of qualified immunity, which the district court granted in part

and denied in part. As is relevant to this appeal, the district court concluded that

Officers Barbour and Feagans were not entitled to summary judgment as to liability

arising out of the 2010 search and seizure of items in Suite 201 because questions of

material fact exist as to whether Long had Riggs’s consent to open the door to Suite

201 and whether the police officers could have reasonably believed that they had

consent to search Suite 201. The district court also concluded that Detectives Toigo

and Taylor were not entitled to summary judgment as to liability arising out of the

2010 seizure of incense from behind the Coffee Wonk counter because questions of

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material fact exist as to whether they had consent or reasonably believed they had

consent to seize the incense. Finally, the district court determined that Detectives

Whaley, Gibbs, and Onik and Sergeant Dumit were not entitled to summary judgment

because questions of material fact exist as to the purpose of the 2012 search and

whether it was reasonable for defendants to believe that Coffee Wonk had a liquor

license once the search began. The officers appeal.

II

“An order denying qualified immunity can be immediately appealable despite

the fact that it is interlocutory.” Mallak v. City of Baxter, 823 F.3d 441, 445 (8th Cir.

2016). Qualified immunity shields public officials from § 1983 liability “unless (1)

the evidence, viewed in the light most favorable to [the plaintiff], establishes a

violation of a constitutional or statutory right, and (2) the right was clearly established

at the time of the violation, such that a reasonable official would have known that his

actions were unlawful.” Blazek v. City of Iowa City, 761 F.3d 920, 922–23 (8th Cir.

2014). “Our jurisdiction to consider an appeal of an order denying summary

judgment based on qualified immunity is limited to the purely legal issue of whether

the facts alleged support a claim of violation of clearly established law.” Berry v.

Doss, 900 F.3d 1017, 1021 (8th Cir. 2018) (cleaned up). We do “not have

jurisdiction to consider the appeal if ‘at the heart of the argument is a dispute of

fact.’” Austin v. Long, 779 F.3d 522, 524 (8th Cir. 2015) (quoting Pace v. City of

Des Moines, 201 F.3d 1050, 1053 (8th Cir. 2000)); see also Berry, 900 F.3d at 1021

(“[D]efendants that have been denied qualified immunity cannot create appellate

jurisdiction by using qualified immunity verbiage to cloak factual disputes as a legal

issue.”). If defendants are “simply arguing that the plaintiff offered insufficient

evidence to create a material issue of fact” for trial, we lack jurisdiction. White v.

McKinley, 519 F.3d 806, 813 (8th Cir. 2008).

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We conclude that we lack jurisdiction over Officers Barbour and Feagans’

appeal. They claim that they are entitled to qualified immunity against any liability

arising out of the warrantless search and seizure of items in Suite 201 because Riggs

put forth insufficient evidence to dispute that Long represented to Officer Barbour

that he had authority to open the door. They concede that the legality of the search

and seizure — and thus their qualified-immunity defense — depends entirely on

Long’s apparent authority to open the door. The district court concluded that

“questions of material fact exist as to whether Long had plaintiff’s consent to open

the door and whether the police officers could have reasonably believed they had

consent to search the premises.” We lack jurisdiction to consider these genuine

disputes of material fact. See Wallace v. City of Alexander, 843 F.3d 763, 766 (8th

Cir. 2016) (“[I]ssues such as ‘the existence, or nonexistence, of a triable issue of fact’

are not reviewable” at this juncture. (quoting Johnson v. Jones, 515 U.S. 304, 316

(1995))).

We similarly lack jurisdiction to consider Detectives Toigo and Taylor’s

appeal. They argue that they are entitled to qualified immunity in connection with the

2010 seizure of Syn incense from behind the Coffee Wonk counter because the

incense was in “plain view.” Under the plain-view doctrine, “officers may seize an

object without a warrant if they are lawfully in a position from which they view the

object, the incriminating character of the object is immediately apparent, and the

officers have a lawful right of access to the object.” United States v. Brown, 635 F.3d

656, 661 (8th Cir. 2011) (quoting United States v. Muhammad, 604 F.3d 1022, 1027

(8th Cir. 2010)). Consent may provide the basis for lawful presence and lawful

access to the item seized. See, e.g., PPS, Inc. v. Faulkner Cty., 630 F.3d 1098,

1103–05 (8th Cir. 2011) (plain-view doctrine supported seizure where pawn shop

manager consented to officer’s presence). “Once given, [however,] consent to search

may be withdrawn.” United States v. Sanders, 424 F.3d 768, 774 (8th Cir. 2005).

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The parties do not dispute that the Syn incense would have been in plain view

when Detective Toigo first passed behind the counter during the course of his robbery

investigation. The parties also agree that the Coffee Wonk store clerk’s consent to

investigate the robbery gave Detective Toigo a lawful right of access to the area

behind the counter at that time. But Detective Toigo did not seize the Syn incense

during his initial search, and the factual circumstances surrounding the later seizure

of the Syn incense are heavily disputed. Accepting Riggs’s version of the events as

true, he unequivocally withdrew consent to seize the Syn incense located behind the

counter and the seizure was accordingly unlawful. See Sanders, 424 F.3d at 774–77.

Analyzing the factual record to resolve these genuine factual disputes would exceed

the scope of our limited review. See Berry, 900 F.3d at 1021.

Finally, we lack jurisdiction over Sergeant Dumit and Detectives Whaley,

Gibbs, and Onik’s appeal. The officers argue that they are entitled to qualified

immunity against liability arising out of the 2012 warrantless search of Coffee Wonk

because Riggs did not make a substantial showing that the administrative search

exception does not apply. A warrantless administrative search “is constitutional if . . .

the rules governing the search offer an adequate substitute for the fourth amendment

warrant requirement.” United States v. Knight, 306 F.3d 534, 535 (8th Cir. 2002).

However, the officers concede that this exception does not apply when the

administrative search is a mere subterfuge for criminal investigation. See Ashcroft

v. al-Kidd, 563 U.S. 731, 736 (2011) (noting that in administrative-search cases

“‘actual motivations’ do matter”) (quoting United States v. Knights, 534 U.S. 112,

122 (2001)). On appeal, they ask this court to disregard the district court’s

determination that Riggs “presented substantial facts supporting his argument that

there was no real ‘dual purpose’ for this search” and, instead, conclude that Riggs has

presented insufficient evidence that the search was not at least in part a “tavern

check” in order to defeat summary judgment. But this kind of “fact-intensive

argument[] amount[s] to nothing more than [a] prohibited ‘I didn’t do it!’” defense.

Heartland Acad. Cmty. Church v. Waddle, 595 F.3d 798, 807 (8th Cir. 2010)

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Therefore this factual argument, too, is beyond our limited review. See Wallace, 843

F.3d at 766.

Because material disputes of fact are at the heart of the officers’ appeal, we

dismiss for lack of jurisdiction.

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