Opposition Brief — Edward Wierszewski, Petitioner v. Alan Thibault
Supreme Court briefFeb 5, 2018
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APPENDIX TABLE OF CONTENTS
Edward Wierszewski’s Sixth Circuit Principal Brief
(October 12, 2016) .............................................. 1a
Marty Bugbee’s Deposition Transcript
(February 23, 2016) .......................................... 54a
Edward Wierszewski’s Deposition Transcript
(December 3, 2015) ........................................ 128a
Alan Thibault’s Deposition Transcript
(October 21, 2015) .......................................... 192a
App.1a
EDWARD WIERSZEWSKI’S SIXTH CIRCUIT
PRINCIPAL BRIEF
(OCTOBER 12, 2016)
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT ON APPEAL
FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
________________________
ALAN THIBAULT,
Plaintiff-Appellee,
v.
EDWARD WIERSZEWSKI,
individually and in his official capacity
as a Public Safety Officer,
Defendant-Appellant.
________________________
Case No. 16-2021
Oral Argument Requested
STATEMENT OF ISSUE PRESENTED:
DID THE DISTRICT COURT COMMIT CLEAR
AND REVERSIBLE LEGAL ERROR BY REFUSING
TO GRANT SUMMARY JUDGMENT OF PLAINTIFF’S FALSE ARREST CLAIMS ON THE BASIS OF
THE DOCTRINE OF QUALIFIED IMMUNITY?
App.2a
STATEMENT OF THE CASE
Introduction
Defendant-Appellant Edward Wierszewski seeks
reversal of an Opinion and Order entered by the District
Court denying him summary judgment on grounds of
qualified immunity with respect to Plaintiff’s claims of
false arrest for driving while under the influence of
intoxicants. Resolution of the legal issues raised on
appeal require a review of the undisputed and indisputable facts established in the record as well as the
District Court’s analysis of the doctrine of qualified
immunity as applied to the relevant and incontrovertible record.
Verified Background Facts
Edward Wierszewski is a public safety officer
with the Grosse Pointe Farms (“GPF”) Public Safety
Dept. (“PSD”) (Wierszewski Aff., RE #12-2, Pg ID 110;
Wierszewski Dep., RE #12-3, Pg ID 151).
At approximately 2:00 AM on December 5, 2014,
Officer Wierszewski was on patrol in squad car #33
when he noticed the erratic operation of semi tractortrailer on Moross Rd. just south of Mack Ave (Wierszewski Aff., RE #12-2, Pg ID 110, 111, 113-114; Wierszewski Dep., RE #12-3, Pg ID 153-154; GPF PSD Case
Report 140005021-001, RE #12-4, Pg ID 172). The
erratic driving was also observed by GPF public safety
officer Veronica Cashion who was patrolling the area
in squad car #34 (Wierszewski Dep., RE #12-3, Pg ID
160; Cashion Aff., RE #12-6, Pg ID 218-219). Specifically, the officers observed the front of the truck
inexplicably hit, go up and over, a median
(Wierszewski Aff., RE #12-2, Pg ID 113; Wierszewski
App.3a
Dep., RE #12-3, Pg ID 153-154; Case Report, RE #124, Pg ID 172; Cashion Aff., RE #12-6, Pg ID 219). See
also: Complaint, RE #1, Pg ID 3 and Thibault Dep.,
RE #12-7, Pg ID 243, 249).
Wierszewski observed two equipment-related
violations of the Michigan Motor Vehicle Code when
approaching the truck (Wierszewski Aff., RE #12-2, Pg
ID 113-114; Wierszewski Dep., RE #12-3, Pg ID 154;
Case Report, RE #12-4, Pg ID 172). Wierszewski
initiated a traffic stop and Cashion provided back-up
(Complaint, RE #1, Pg ID 3; Wierszewski Aff., RE #122, Pg ID 113-114; Case Report, RE #12-4, Pg ID 172;
Cashion Aff., RE #12-6, Pg ID 220).
The traffic stop was recorded by the dash camera
of car #33 and Wierszewski’s body microphone (Wierszewski Aff., RE #12-2, Pg ID 111). At the end of Wierszewski’s shift, the data was downloaded onto a GPF
server (Id.).1
Wierszewski approached the truck from the
driver’s side, while Cashion approached from the
passenger side (Wierszewski Dep., RE #12-3, Pg ID
160; Case Report, RE #12-4, Pg ID 172). Both noted
that the driver’s window was down, despite cold temperatures, and that the radio volume was unusually high
(DVD, RE #12-2, Pg ID 127; Wierszewski Aff., RE #122, Pg ID 114-115; Case Report, RE #12-4, Pg ID 172;
1 A DVD of the recording was filed with the District Court
(Wierszewski Aff., Ex 1, RE #12-2, Pg ID 127). The DVD has been
authenticated as complete and accurate (Wierszewski Aff., RE
#12-2, Pg ID 112-113; Cashion Aff., RE #12-6, Pg ID 220221;
Dionne Aff., RE #12-9, Pg ID 270-271; Krizmanich Aff., RE #1210, Pg ID 276-277). A transcript of the audio portion was also
filed with the District Court (Transcript, RE #12-5, Pg ID 187216).
App.4a
Transcript, Pg ID 198-200; Cashion Aff., RE #12-6, Pg
ID 219-220).
Upon initial contact with the driver, Plaintiff
Alan Thibault, the two officers observed that Thibault
appeared disorientated, was attempting to smoke an
unlit cigarette, was speaking unusually slow, and, had
a flush red face (Wierszewski Aff., RE #12-2, Pg ID
114-115; Wierszewski Dep., RE #12-3, Pg ID 154-155;
Case Report, RE #12-4, Pg ID 172, 176; Cashion Aff.,
RE #12-6, Pg ID 222).
Thibault asked Wierszewski for the location of a
nearby Wendy’s and Wierszewski responded it was in
an adjacent block (DVD, RE #12-2, Pg ID 127; Case
Report, RE #12-4, Pg ID 173, 176; Transcript, RE #125, Pg ID 188). Thibault explained that he had hit the
median after becoming confused about how to access
the Wendy’s from a rear alley (DVD, RE #12-2, Pg ID
127, media time 1:50:16-1:50:40; Wierszewski Dep.,
RE #12-3, Pg ID 153; Transcript, RE #12-5, Pg ID 189;
Thibault Dep., RE #12-7, Pg ID 242). Allegedly, while
in the process of making a left turn from Moross,
Thibault thought he saw a “no truck” sign and, in his
haste to turn back onto Moross, ran up, on, and over
the middle median (Complaint, RE #1, Pg ID 3;
Thibault Dep., RE #12-7, Pg ID 243-244, 255-256).
Thibault did not mention the purported sign to Officer
Wierszewski and, in fact, no such sign was posted in
the area at that or any other time (DVD, RE #12-2, Pg
ID 127, media time 1:50:16-1:50:40; Wierszewski
Dep., RE #12-3, Pg ID 153, 154; Transcript, RE #12-5,
Pg ID 187-215; Brennan Aff., RE #18-2, Pg ID 523524).
When asked, Thibault denied having any medical
issues or being on medication (DVD, RE #12-2, Pg ID
App.5a
127; Case Report, RE #12-4, Pg ID 173, 176-177;
Transcript, RE #12-5, Pg ID 188-189).
Wierszewski asked Thibault to step out of the
truck (DVD, RE #12-2, Pg ID 127; Case Report, RE #124, Pg ID 173; Transcript, RE #12-5, Pg ID 189). Thibault
complied and had the following exchange with
Wierszewski:
OFFICER WIERSZEWSKI: Okay. Step out for a
minute. Have you had anything to drink
tonight?
MR. THIBAULT: No.
OFFICER WIERSZEWSKI: Okay. You realize that
cigarette is not even lit, right?
MR. THIBAULT: No. It goes out a lot.
(DVD, RE #12-2, Pg ID 127; Transcript, Doc #12-5, Pg
ID 189-190. See also: Wierszewski Aff., RE #12-2, Pg
ID 114-115; Case Report, RE #12-4, Pg ID 173).
Upon exiting the truck, Thibault immediately
began shaking (DVD, RE #12-2, Pg ID 127; Wierszewski
Aff., RE #12-2, Pg ID 115; Transcript, RE #12-5, Pg ID
190). When asked why, he explained that he was
chilled despite the fact that he had just vacated a
warm truck cab (DVD, RE #12-2, Pg ID 127; Transcript,
RE #12-5, Pg ID 190).
Wierszewski asked Thibault if he had been
drinking or taking any drugs, to which Thibault
responded in the negative (Complaint, RE #1, Pg ID 4;
DVD, RE #12-2, Pg ID 127; Case Report, RE #12-4, Pg
ID 173, 177; Transcript, RE #12-5, Pg ID 189-191).
However, Wierszewski’s observations of Thibault’s
behavior raised concerns regarding possible intoxication
App.6a
or impairment (Wierszewski Aff., RE #12-2, Pg ID 115;
Wierszewski Dep., RE #12-3, Pg ID 154-156; Case
Report, RE #12-4, Pg ID 172-173, 176). Therefore, Wierszewski requested, and Thibault consented to, a pat
down and field sobriety tests (Complaint, RE #1, Pg
ID 4; DVD, RE #12-2, Pg ID 127; Wierszewski Aff., RE
#12-2, Pg ID 115; Wierszewski Dep., RE #12-3, Pg ID
156; Transcript, RE #12-5, Pg ID 189-191).
Wierszewski initially conducted seven field sobriety
tests (“FST’s”) which were recorded by the dash cam
of car #33 and observed by Cashion (Complaint, RE
#1, Pg ID 5; DVD, RE #12-2, Pg ID 127; Transcript,
RE #12-5, Pg ID 191-197; Wierszewski Aff., RE #12-2,
Pg ID 115-122; Wierszewski Dep., RE #12-3, Pg ID
157-160; Cashion Aff., RE #12-6, Pg ID 222).
Four of the FST’s were selected by Wierszewski
based on his general field training experience (Wierszewski Aff., RE #12-2, Pg ID 115-116; Wierszewski
Dep., RE #12-3, Pg ID 157, 160). Wierszewski requested Thibault to pick a number between 19 and 20 and
Thibault correctly answered 20 (DVD, RE #12-2, Pg
ID 127; Wierszewski Aff., RE #12-2, Pg ID 115;
Wierszewski Dep., RE #12-3, Pg ID 157; Case Report,
RE #12-4, Pg ID 173; Transcript, RE #12-5, Pg ID 191192; Cashion Aff., Re #12-6, Pg ID 222).
Wierszewski requested Thibault to recite the
alphabet from the letter D to the letter O (DVD, RE
#12-2, Pg ID 127, media time 1:52:46-1:52:55; Wierszewski Aff., RE #12-2, Pg ID 116; Wierszewski Dep.,
RE #12-3, Pg ID 157, 160; Case Report, RE #12-4, Pg
ID 173; Transcript, RE #12-5, Pg ID 192; Cashion Aff.,
Re #12-6, Pg ID 222). Thibault responded by stating,
“D. A, B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, R,
S, T, U, V—stopping at O.” (DVD, RE #12-2, Pg ID
App.7a
127; Wierszewski Aff., RE #12-2, Pg ID 116;
Wierszewski Dep., RE #12-3, Pg ID 157; Case Report,
RE #12-4, Pg ID 173; Transcript, RE #12-5, Pg ID 192;
Cashion Aff., Re #12-6, Pg ID 222).
Wierszewski directed Thibault to touch of the tip
of a thumb to the trip of each finger while counting,
which Thibault successfully completed (DVD, RE #122, Pg ID 127; Wierszewski Aff., RE #12-2, Pg ID 116;
Wierszewski Dep., RE #12-3, Pg ID 157, 160; Case
Report, RE #12-4, Pg ID 173; Transcript, RE #12-5, Pg
ID 192; Cashion Aff., Re #12-6, Pg ID 222).
Wierszewski requested Thibault to silently count
for thirty seconds and advise Wierszewski when he
was finished (DVD, RE #12-2, Pg ID 127; Wierszewski
Aff., RE #12-2, Pg ID 116; Case Report, RE #12-4, Pg
ID 176-177; Transcript, RE #12-5, Pg ID 196-197).
Thibault completed this task after 19 seconds (DVD,
RE #12-2, Pg ID 127, media time 1:57:20-1:57:39;
Wierszewski Aff., RE #12-2, Pg ID 116; Wierszewski
Dep., RE #12-3, Pg ID 157; Case Report, RE #12-4, Pg
ID 176-177; Transcript, RE #12-5, Pg ID 197-198).
Officer Wierszewski also administered three
standard field sobriety test (“SFST’s) developed by the
National Highway Traffic Safety Administration
(“NHTSA”): the Horizontal Gaze Nystagmus (“HGN”),
the One-Leg Stand, and the Walk and Turn (DVD, RE
#12-2, Pg ID 127; Wierszewski Aff., RE #12-2, Pg ID
116; Wierszewski Dep., RE #12-3, Pg ID 158-160; Case
Report, RE #12-4, Pg ID 173, 176-177; Transcript, RE
#12-5, Pg ID 193-195; Cashion Aff., Re #12-6, Pg ID
222).2
2 These standard tests were described by the Supreme Court in
Pa. v. Muniz, 496, U.S. 582, 585, n. 1, 110 S.Ct. 2638, 110 L.Ed.2d
App.8a
On 12/5/14, Wierszewski was trained and experienced in the administration of FST’s and the recognition of illegal drug use (Wierszewski Aff., RE #12-2,
Pg ID 110; Wierszewski Dep., RE #12-3, Pg ID 151153, 158; Certificates issued to Edward Wierszewski,
RE #12-8, Pg ID 258-267). Wierszewski has been certified to perform NHTSA FST’s since 2003 (Wierszewski
Dep., RE #12-3, Pg ID 152-153; Certificates, RE #128, Pg ID 258-267). He is also a certified drug recognition expert (Wierszewski Aff., RE #12-2, Pg ID 110;
Wierszewski Dep., RE #12-3, Pg ID 153; Certificates,
RE #12-8, Pg ID 258-267).
Via his training, Wierszewski learned that an
individual’s performance of SFST’s provides reliable
clues about whether the individual is impaired due to
alcohol or drugs; specifically: 77% of intoxicated/impaired individuals will exhibit abnormal HGN; 68% of
intoxicated/impaired individuals are unable to
528 (1990). as follows:
The ‘horizontal gaze nystagmus’ test measures the
extent to which a person’s eyes jerk as they follow an
object moving from one side of the person’s field of
vision to the other. The test is premised on the understanding that, whereas everyone’s eyes exhibit some
jerking while turning to the side, when the subject is
intoxicated ‘the onset of the jerking occurs after fewer
degrees of turning, and the jerking at more extreme
angles becomes more distinct’ (citation omitted). The
“walk and turn” test requires the subject to walk heelto-toe along a straight line for nine paces, pivot, and
then walk back heel-to-toe along the line for another
nine paces. The subject is required to count each pace
aloud from one to nine. The ‘one leg stand’ test
requires the subject to stand on one leg with the other
leg extended in the air for 30 seconds, while counting
aloud from one to thirty.
App.9a
successfully complete the walk-and-turn; and, 62% of
intoxicated/impaired individuals are unable to successfully complete the one leg stand ((Wierszewski Aff.,
RE #12-2, Pg ID 116-122; Wierszewski Dep., RE #123, Pg ID 158-160).
Before administering the NHTSA SFST’s, Wierszewski inquired whether Thibault had any problems
standing, sitting or walking to which Thibault responded
in the negative (DVD, RE #12-2, Pg ID 127, media time
1:53:20-1:53:23; Wierszewski Aff., RE #12-2, Pg ID 116;
Wierszewski Dep., RE #12-3, Pg ID 167; Case Report,
RE #12-4, Pg ID 176; Transcript, RE #12-5, Pg ID 192).
First, Wierszewski administered the walk-and-turn
test after providing verbal instructions and a physical
demonstration (DVD, RE #12-2, p 127, media time
1:53:24-1:54:27; Transcript, RE #12-5, Pg ID 192-193).
Thibault acknowledged understanding the instructions
and voiced no questions, concerns or objections (DVD,
RE #12-2, p 127, media time 1:54:34-1:54:35; Transcript,
RE #12-5, Pg ID 194). Thibault exhibited at least four
indicators/clues of intoxication: body rigidity; swaying
and flailing his arms to maintain balance while being
instructed; elevating and using his arms for balance
while walking; and, stopping during the process (DVD,
RE #12-2, Pg ID 127, media time 01:53:30-01:53:34,
1:54:37-1:55:03; Wierszewski Aff., RE #12-2, Pg ID
117-119; Wierszewski Dep., RE #12-3, Pg ID 159-161;
Case Report, RE #12-4, Pg ID 173, 176-177; Cashion
Aff., RE #12-6, Pg ID 222-223). Two clues during performance of the walk-and-turn test is reliable evidence
of intoxication (Wierszewski Aff., RE #12-2, Pg ID 117118).
The next test was the one-leg-stand for which
Wierszewski provided verbal instructions and a physical
App.10a
demonstration (DVD, RE #12-2, Pg ID 127, media time
1:55:04-1:55:30; Transcript, RE #12-5, Pg ID 194).
Thibault confirmed that he understood the test and
voiced no questions, concerns and objections (DVD,
RE #12-2, Pg ID 127, media time 1:55:04-1:55:30;
Transcript, RE #12-5, Pg ID 195). Wierszewski requested Thibault to perform the test where Wierszewski
had conducted the demonstration, with Thibault acknowledging that Wierszewski had performed the test
without difficulty (DVD, RE #12-2, Pg ID 127, 1:55:471:55:54; Transcript, RE #12-5, Pg ID 195). While performing the test, Thibault exhibited five indicators of
intoxication: failure to count as instructed; failure to
maintain 6” foot elevation; inability to keep arms at side
and use of arms for balance; swaying while balancing;
and, hopping (DVD, RE #12-2, Pg ID 127, media time
1:55:24-1:55:29, 1:55:59-1:56:33; Wierszewski Aff., RE
#12-2, Pg ID 119-121; Wierszewski Dep., RE #12-3, Pg
ID 160-161; Case Report, RE #12-4, Pg ID 173, 176177; Transcript, RE #12-5, Pg ID 194-195; Cashion
Aff., RE #12-6, Pg ID 223). Two clues during performance of the one-leg stand are indicative of intoxication
(Wierszewski Aff., RE #12-2, Pg ID 119-120).
During the HGN test, Thibault’s eyes did not
pursue smoothly and he had nystagmus at maximum
deviation in both eyes, for a total of four clues
suggestive of intoxication (Wierszewski Aff., RE #122, Pg ID 121-122; Wierszewski Dep., RE #12-3, Pg ID
158-159; Case Report, RE #12-4, Pg ID 173, 176-177).
Wierszewski asked and received permission to
search the truck (DVD, RE #12-2, Pg ID 127; Wierszewski Dep., RE #12-3, Pg ID 164; Case Report, RE
#12-4, Pg ID 173; Transcript, RE #12-5, Pg ID 197).
During the search conducted by Wierszewski and
App.11a
Cashion, Thibault sat in the heated back seat of car
#33 (Complaint, RE #1, Pg ID 5; DVD, RE #12-2, Pg
ID 127; Wierszewski Dep., RE #12-3, Pg ID 161; Case
Report, RE #12-4, Pg ID 173; Transcript, RE #12-5, Pg
ID 198; Cashion Aff., RE #12-6, Pg ID 220). By this
point, Officer Thomas Dionne arrived at the scene and
remained with Thibault (Wierszewski Dep., RE #12-3,
Pg ID 161; Dionne Aff., RE #12-9, Pg ID 270-271).
During the search, Cashion confirmed that: immediately prior to the stop, Thibault had been hanging
out the open window of his cab and had his radio
“blasting”; when stopped, Thibault attempted to
smoke an unlit cigarette; Thibault’s face had remained flushed and red; and, Thibault’s performance of the
SFST’s, especially the walk-and-turn, suggested intoxication (DVD, RE #12-2, Pg ID 127, media time 1:59:
55-2:07:18; Case Report, RE #12-4, Pg ID 173; Transcript, RE #12-5, Pg ID 198-200; Cashion Aff., RE #126, Pg ID 222-223). The search did not uncover evidence
of alcohol or drugs (Complaint, RE #1, Pg ID 5). Wierszewski expressed concern about the absence of physical
evidence further substantiating that Thibault was
unable to safely operate the truck on public streets
(DVD, RE #12-2, Pg ID 127, media time 2:02:042:06:58; Wierszewski Dep., RE #12-3, Pg ID 164;
Transcript, RE #12-5, Pg ID 198-200).
Wierszewski returned to Thibault and, upon
inquiry, discovered that Thibault had been driving for
a couple of hours (DVD, RE #12-2, Pg ID 127; Case
Report, RE #12-4, Pg ID 173; Transcript, RE #12-5, Pg
ID 200). Wierszewski advised Thibault that: he had
failed the FST’s; the test results were consistent with
consumption of an intoxicant; and Wierszewski had
ruled out alcohol consumption (DVD, RE #12-2, Pg ID
App.12a
127, media time 2:08:33-2:09:42; Transcript, RE #125, Pg ID 201-202). Wierszewski also recounted other
factors, including attempts to extinguish an unlit
cigarette which, combined with the test results, caused
Wierszewski to suspect that Thibault was intoxicated
(DVD, RE #12-2, Pg ID 127, media time 1:50:581:51:02; Transcript, RE #12-5, Pg ID 201-202). Thibault denied taking any drugs and offered no explanation for the observed indicators of intoxication (DVD,
RE #12-2, Pg ID 127, media time 2:09:42-2:08:48; Case
Report, RE #12-4, Pg ID 176-177; Transcript, RE #125, Pg ID 201). By this point, Sgt. Krizmanich had
arrived at the scene and Wierszewski advised her as to
the status of the investigation (Wierszewski Dep., RE
#12-3, Pg ID 161; Krizmanich Aff., RE #12-10, Pg ID
276).
After conferring with Krizmanich, Dionne, and
Cashion, all of whom agreed that Thibault appeared
intoxicated, Wierszewski decided to reexamine Thibault’s eyes for signs of stimulant use and administer
a second walk-and-turn test (DVD, RE #12-2, Pg ID
127, media time 2:11:50-2:12:28; Transcript, RE #12-5,
Pg ID 202-206). Prior to the walk-and-turn test, Dionne
asked Thibault to roll up his sleeves and inquired
when Thibault had last used drugs (DVD, RE #12-2, Pg
ID 127; Transcript, RE #12-5, Pg ID 205). Thibault
admitting to previously using marijuana, but denied
any current drug use or abuse (DVD, RE #12-2, Pg ID
127; Transcript, RE #12-5, Pg ID 205-206).
Wierszewski again verbally explained and physically demonstrated the walk-and-turn test and Thibault again confirmed he understood without voicing any
questions, concerns, or objections (DVD, RE #12-2, Pg
App.13a
ID 127, media time 2:14:1702:15:06; Transcript, RE
#12-5, Pg ID 206-207).
Thibault was unable to successfully perform the
second walk-and-turn test, as clearly depicted on the
dash cam video and as observed by all four GPF public
safety officers; specifically, Thibault substantially
swayed from side to side lifted his legs off the ground,
and considerably flailed his arms (DVD, RE #12-2, Pg
ID 127, media time 2:14:15-2:15:17; Wierszewski Aff.,
RE #12-2, Pg ID 119; Wierszewski Dep., RE #12-3, Pg
ID 161; Case Report, RE #12-4, Pg ID 173, 176-177;
Transcript, RE #12-5, Pg ID 206-207; Cashion Aff., RE
#12-6, Pg ID 222-223; Dionne Aff., RE #12-9, Pg ID
271-272; Krizmanich Aff., RE #12-10, Pg ID 277-278).
In Wierszewski’s professional judgment, Thibault
was possibly under the influence of an intoxicant and,
if so, should not be allowed to continue to operate the
truck on the public streets (Wierszewski Aff., RE #122, Pg ID 122-123; Case Report, RE #12-4, Pg ID 177).
This judgment was based upon Thibault’s poor performance of the FST’s combined with the following
observations:
Thibault had driven erratically during the
early morning hours;
the truck radio was unusually loud;
Thibault’s face was flushed and red;
Thibault was disoriented and restless;
Thibault had attempted to smoke and extinguish an unlit cigarette;
Thibault’s speech was unusually slow; and,
App.14a
the window of Thibault’s cab had been down
despite the cold temperatures;
(Wierszewski Aff., RE #12-2, Pg ID 122-123; Wierszewski Dep., RE #12-3, Pg ID 154-156; Case Report, RE
#12-4, Pg ID 173, 176-177).
Officers Cashion and Dionne and Sgt. Krizmanich
independently determined that probable cause existed
for operation of a vehicle while impaired by an
intoxicant (Cashion Aff., RE #12-6, Pg ID 222-223;
Dionne Aff., RE #12-9, Pg ID 271-272; Krizmanich Aff.,
RE #12-10, Pg ID 277-278).
Wierszewski arrested Thibault for operating a
motor vehicle while impaired by an intoxicating substance (“OWI”) in violation of MCL 257.625 (Complaint, ¶ 18; DVD, RE #12-2, Pg ID 127; Wierszewski
Aff., RE #12-2, Pg ID 122-123; Wierszewski Dep., RE
#12-3, Pg ID 153; Case Report, RE #12-4, Pg ID 173;
Transcript, RE 12-5, Pg ID p 207). Dionne transported
Thibault to the GPF police station while Wierszewski
and Krizmanich secured the tractor-trailer (DVD, RE
#12-2, Pg ID 127; Case Report, RE #12-4, Pg ID 173;
Transcript, RE 12-5, Pg ID p 207-215; Dionne Aff., RE
#12-9, Pg ID 272).
At the station, Dionne administered a preliminary
breathalyzer test, to which Thibault consented and
which was negative for alcohol use (Complaint, ¶ 21;
Wierszewski Dep. RE #12-3, Pg ID 162; Case Report,
RE #12-4, Pg ID 175-180). Wierszewski separately
completed a drug influence evaluation upon Thibault
as witnessed by Cashion (Complaint, ¶ 22; Wierszewski
Aff., RE #12-2, Pg ID 122-123; Case Report, RE #12-4,
Pg ID 175-180). During this evaluation, Wierszewski
took Thibault’s pulse and blood pressure and the results
App.15a
of both measurements were in the high end of the normal ranges, yet further indications of possible drug
use (Complaint, 1123-24; Wierszewski Dep. RE #12-3,
Pg ID 167-168; Case Report, RE #12-4, Pg ID 175-180).
Wierszewski again administered the NHSTA SFST’s, as
witnessed by Cashion, during which Thibault continued
to exhibit clues of impairment (Wierszewski Aff., RE
#12-2, Pg ID 122-123; Case Report, RE #12-4, Pg ID
175-180; Cashion Aff., RE #12-6, Pg ID 223).
Wierszewski, Cashion, and Krizmanich all detected a
white powder-like substance in Thibault’s left nostril
(Wierszewski Aff., RE #12-2, Pg ID 122-123; Wierszewski Dep. RE #12-3, Pg ID 164-165; Case Report,
RE #12-4, Pg ID 175-180; Krizmanich Aff., RE #12-10,
Pg ID 278).
Officer Wierszewski read Thibault his Miranda
rights and questioned him further regarding drug use,
which Thibault denied (Complaint, 25-26; Case Report,
RE #12-4, Pg ID 173, 175-180). Wierszewski remained
concerned that Thibault was possibly under the
influence of a central nervous system stimulant or
depressant (Wierszewski Aff., RE #12-2, Pg ID 123124; Case Report, RE #12-4, Pg ID 175-180).
All activities occurring within the GPF station
booking room involving Thibault were captured visually
and audibly by a recorder mounted in the room (Wierszewski Aff., RE #12-2, Pg ID 112; Cashion Aff., RE
#12-6, Pg ID 221; Dionne Aff, RE #12-9, Pg ID 272;
Krizmanich Aff., RE #12-10, Pg ID 278)3.
3 A copy of the DVD recording from the booking room was filed
with the District Court (DVD RE #12-2, Pg ID 130). This DVD
has also been authenticated as complete and accurate
(Wierszewski Aff, RE #12-2, Pg ID113-114; Cashion Aff., RE #126, Pg ID 221; Dionne Aff., RE #12-9, Pg ID 272; Krizmanich Aff.,
App.16a
Wierszewski transported Thibault to Cottage
Hospital for a consented-to blood test with the samples
sent to the Michigan State Police by hospital staff
(Complaint, ¶¶ 27-29; Wierszewski Aff., Pg ID 12-2,
Pg ID 123; Wierszewski Dep., RE 12-3, Pg ID 165;
Arrest Report, RE #12-4, Pg ID 177-180, 184).
At the conclusion of the drug evaluations, Thibault
was issued a citation for OWI and released after posting
a $500.00 bond (Arrest Report, RE #12-4, Pg ID 173,
181; Court Record RE #12-13, Pg ID 288-289, 292, 301).
After his release, Thibault underwent drug and alcohol
screening tests at his employer’s drug screening facility,
the results of which were negative for alcohol,
marijuana, cocaine, amphetamines, opiates, and PCP
(Complaint, ¶ 30; Court Record RE #12-13, Pg ID 320321).
On December 19, 2014, the Michigan State Police
Laboratory reported that the blood drawn on Thibault
at Cottage Hospital on 12/5/14 was negative for alcohol
(Lab Report, RE #12-11, Pg ID 281-282; Wierszewski
Dep., RE 12-3, Pg ID 165).
On January 28, 2015, a Stipulation and Order was
entered in the GPF Municipal Court, dismissing the
OWI charges against Thibault without prejudice, the
prosecutor reserving the right to file a new complaint
in the event the results of the Michigan State Police
Laboratory blood screen was positive for drug use
(Court File, RE #12-13, Pg ID 290, 293-295). On January 30, 2015, GPF refunded the $500.00 bond posted
for Thibault (Court File, RE #12-13, Pg ID 298).
Re #12-10, Pg ID 278).
App.17a
On April 22, 2015, the Michigan State Police Laboratory reported that the blood drawn on Thibault at
Cottage Hospital on 12/5/14 was negative for certain
limited class of drugs, including, amphetamines, barbiturates, benzodiazepines, cannabinoids, cocaine metabolites, meprobamates, methadone, opiates, tramadol
and zolpidem (Lab Report, RE #12-12, Pg ID 284-285;
Wierszewski Dep., RE #12-3, Pg ID165-167). No
further charges have been levied against Thibault
with respect to his detention and arrest on 12/5/14.
Proceedings in the District Court
On or about April 14, 2015, Plaintiff Thibault
instituted the instant action responding, “No. He
asked me. You know your cigarette is not lit. I said, I
know that.” (Thibault Dep., RE #12-7, Pg ID 253).
Plaintiff’s counsel did not examine his client under
oath regarding any of Officer Wierszewski’s observations regarding Thibault’s behavior with the unlit
cigarette (Doc #12-7, Pg ID 225-256).
Pursuant to Court order, fact discovery closed on
October 30, 2015 (Doc #8, Pg ID 51) and expert discovery closed on February 29, 2016 (Doc #10, Pg ID
64).
One March 23, 2016, the Defendant filed a Motion
for Summary Judgment supported by documentary
evidence including the GPF DPS Case Report (RE #124, Pg ID 169-185); DVD’s containing the dash cam and
booking room recordings (RE #12-2, Pg ID 126, 130); a
transcription of the dash cam recording (RE #12-5, Pg
ID 186-216); the GPF DPS Case Report (RE #12-4, Pg
ID 170-185); Wierszewski’s deposition transcript (RE
#12-3, Pg ID 148-186); the sworn affidavits of
Wierszewski (RE #12-2, Pg ID 109-124), Cashion (RE
App.18a
#12-6, Pg ID 218-223), Dionne (RE #12-9, Pg ID 269273), and Krizmanich (RE #12-10, Pg ID 275-279);
Wierszewski’s DRE training certificates (RE #12-8,
PG ID 258-267) Michigan State Police Laboratory
Reports (RE #12-11, Pg ID 281-282, RE #12-12, Pg ID
284-286); the Municipal Court file (RE #12-13, Pg ID
288-335); and, Thibault’s deposition (RE #12-7, Pg ID
224-256). Attached to the Defendant’s Reply Brief was
the Affidavit of GPF Public Services Director Terrance
Brennan and expert Bugbee’s deposition transcript
(RE #18-2, Pg ID 522-525, 539-561).
The Defendant’s request for summary relief was
premised on arguments that:
Plaintiff’s false arrest claims failed on the
merits because, as a matter of law, the Defendant officer had probable cause to arrest Plaintiff;
Plaintiff’s malicious prosecution claims failed
on the merits because, as a matter of law, the
Defendant officer had probable cause to arrest
Plaintiff, and, as a matter of undisputed fact,
the officer did not participate in Plaintiff’s prosecution in a blameworthy way and Plaintiff did
not suffer from a deprivation of liberty apart
from the initial arrest; and,
as a matter of law, the Defendant was entitled
to qualified immunity.
(RE #12, Pg ID 69-105)
In the Defendant’s Brief in Support of Summary
Judgment, Thibault’s attempt to extinguish an unlit
cigarette was explicitly referenced as a factor justifying
App.19a
Wierszewski’s probable cause determination (RE #12,
Pg ID 81, 99).
Plaintiff submitted a Response Brief to which no
documentation was attached (RE #15, Pg ID 466-482).
With respect to his false arrest claims, Plaintiff argued
that Wierszewski lacked probable cause because Plaintiff passed the FST’s and the other factors relied upon
by the officer do not constitute evidence of actual
criminal activity (RE #15, Pg ID 476-478). Plaintiff did
not cite any evidence verifying that he did not attempt
to smoke or extinguish an unlit cigarette. With respect
to his malicious prosecution arguments, Plaintiff
again asserted the absence of probable cause (RE #15,
Pg ID 478-481).
At the hearing on Defendant’s Motion for Summary
Judgment, the parties’ argument focused primarily
upon the false arrest claims, the District Court indicating that the malicious prosecution claims failed in
absence of evidence that Defendant participated in
Plaintiff’s prosecution and Plaintiff suffered no
deprivation of liberty apart from the initial arrest (Motion Transcript, RE #32, Pg ID 821, 834-836).
With respect to the false arrest claims, Plaintiff’s
counsel insisted that proofs in the record establish
that:
there is no corroboration for Officer Wierszewski’s observed indicators of intoxication;
and,
Wierszewski lied, ignored, or failed to investigate
for, exculpatory evidence, fabricated evidence
after-the-fact, and, specifically, manipulated
the FST/SFST tests and results in order to
“railroad” an innocent Thibault.
App.20a
(Motion Transcript, RE #32, Pg ID 821, 836-850, 859,
863).
However, Plaintiff’s counsel admitted on the record
that:
Thibault drove erratically on 12/5/14 (RE #32,
Pg ID 837);
the windows of Thibault’s truck were down
while he was driving (Id);
Thibault never attempted to explain why he had
an unlit cigarette in his mouth (RE #32, Pg ID
859-860);
Wierszewski was not told that Thibault had a
speech impediment that would account for his
slow speech (Motion Transcript, RE #32, Pg ID
842); and,
Thibault denied having any medical conditions
that would impact his ability to perform
FST’s/SFST’s (Motion Transcript, RE #32, Pg ID
842-843).
At the hearing, Plaintiff’s counsel asserted, for
the first time, that Thibault did not attempt to extinguish an unlit cigarette (Motion Transcript, RE #32,
Pg ID 839). Plaintiff’s counsel requested, and received,
permission from the Court to submit a proposed affidavit as a supplemental exhibit in opposition to summary judgment (Motion Transcript, RE #32, Pg ID
851-852, 868-869).
The District Court placed a few rather remarkable
comments on the record before taking the dispositive
motion under advisement (Motion Transcript, RE #32,
Pg ID 867). For example, the Court stated that the
App.21a
dash cam video clearly depicts a “substantial” loss of
balance during both walk-and-turn tests (Motion
Transcript, RE #32, Pg ID 844). However, the Court
also indicated that it found the NHTSA and other
SFST’s “troubling” as they appeared designed to trap
innocent motorists (Motion Transcript, RE #32, Pg ID
825-826, 846). Indeed, the District Court Judge confessed to attempting to perform the FST’s in chambers
and was frustrated by an inability to perform them (Motion Transcript, RE #32, Pg ID 826, 844). Yet the
Court also noted that:
in addition to the results of the FST’s/SFST’s
there were other undisputed facts such as
Thibault’ s erratic driving, flushed face, use of
an unlit cigarette, which would raise reasonable
concerns that Thibault was impaired;
Officer Wierszewski was faced with a difficult
situation; and,
it might well have been irresponsible to allow
Thibault to continue to drive.
(Motion Transcript, RE #32, Pg ID 844-846).
On June 9, Plaintiff submitted his post-hearing
motion and proposed affidavit (RE #24, Pg ID 688-698).
The motion was granted over defense objections
(Response Brief, RE #25, Pg ID 700-733; Order, RE
#26, Pg ID 734-740; Thibault Aff., RE #27, Pg ID 741).
On June 24, 2016, the District Court issued an
Opinion and Order granting summary judgment on
Plaintiff’s malicious prosecution claims but denying
summary judgment on the false arrest claims (Opinion
and Order, RE #28, Pg ID 743-777). On page two, the
Court concluded, in part, that “if a jury resolved
App.22a
[certain hotly disputed facts] in Thibault’s favor, it
could find that Wierszewski’s mistaken conclusion
that he had probable cause to arrest Thibault was not
a reasonable one.” (RE #28, Pg ID 744). On June 24,
2016 the District Court also issued an Amended Opinion and Order (RE #29, Pg ID 778-812) which modified
the original sentence on page two by removing the word
“mistaken” (RE #29, Pg ID 778-812, Pg ID 778-779).
On July 13, 2016, Edward Wierszewski filed a
Notice of Appeal seeking review and reversal of the
denial of summary judgment with respect to Plaintiff’s
false arrest claims (RE #30, Pg ID 813-814).
SUMMARY OF ARGUMENTS
The District Court committed clear and reversible
legal error by refusing to grant summary judgment in
favor of the Defendant police officer on the basis of the
doctrine of qualified immunity with respect to Plaintiff’s false arrest claims because there is incontrovertible proof, in the form of a complete and accurate dash
cam recording and other undisputed or indisputable
evidence, that Wierszewski had probable cause to
arrest Plaintiff Thibault for driving under the influence of intoxicants.
Alternatively, even assuming that the questions
of fact exist as to objective reasonableness of the
Defendant’s probable cause determination, the qualified
immunity doctrine requires summary dismissal of the
false arrest claims because, under the rules of law
clearly established on the date of Thibault’s arrest,
Wierszewski could have reasonably believed that
Thibault’s arrest was both lawful and necessary to
protect the general public and Thibault from the
enormous dangers associated with driving while intox-
App.23a
icated, regardless of whether this belief was ultimately proven erroneous.
STANDARDS OF APPELLATE REVIEW
The Sixth Circuit conducts a de novo review of
district court determinations on motions for summary
judgment. Pollard v. City of Columbus, 780 F.3d 395,
402 (6th Cir. 2015).
Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(c). See also: Celotex
Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548,
91 L.Ed.2d 265 (1986). The purpose of summary judgment is to “pierce the pleadings and to assess the proof
in order to see whether there is a genuine need for
trial.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d
538 (1986). See also: Celotex, 477 U.S. at 327.
The moving party is obliged to inform the court of
the legal basis for summary relief and to cite portions
of the record which demonstrate the absence of a
genuine dispute over material facts. Fed. R. Civ. Pro
56 (c)(1)(A)-(B); Celotex Corp., 477 U.S. at 323; Mt.
Lebanon Pers. Care Home, Inc. v. Hoover Universal,
Inc., 276 F.3d 845, 848 (6th Cir. 2002). The burden
then shifts to the responding party to identify specific
portions of affidavits, depositions, or other quality evidence which would permit a reasonable jury to reach a
verdict in favor of the non-movant. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505;
App.24a
91 L.Ed.2d 202 (1996); Matsushita Elec. Indus., 475
U.S. at 586.
A court resolving a request for summary judgment
is required to view the factual evidence and all reasonable inferences in a light most favorable to the
opposing party. Tolan v Cotton,—U.S.—,134 S.Ct. 1861,
1863, 188 L.Ed.2d 895 (2014); Plumhoff, 134 S.Ct. at
2017. However, a reviewing court is not obligated to
accept wholesale or grant deference to an opposing
party’s version of the facts if that version is so
blatantly contradicted by the record that no reasonable
jury could believe it. Scott, 550 U.S. at 378-381;
Shreve v. Franklin Cnty, Ohio, 743 F.3d 126, 132-33
(6th Cir. 2014); Marvin v. City of Taylor, 509 F.3d 234,
239-244 (6th Cir. 2007); McLean v. 988011 Ontario Ltd.,
224 F.3d 797, 800 (6th Cir. 2000).
Neither conclusory allegations, speculation, unsubstantiated assertions, nor a mere scintilla of evidence
in support of the non-movant’s position, may defeat
summary judgment. Liberty Lobby, 477 U.S. at 252;
Matsushita Elec. Indus., 475 U.S. at 586.
In Scott, supra, the Supreme Court addressed the
role of video and audio evidence at the summary-judgment stage of civil rights actions, holding that:
where there is a complete and accurate video
/audio recording of the entire incident giving
rise to claims, the district court should view the
facts in the light depicted by the recording;
witness accounts seeking to contradict such
video recordings do not create triable factual
issues for juries; and,
App.25a
once the court has determined the relevant set
of facts and inferences supported by the record,
the reasonableness of a defendant’s actions is a
question of law for the courts.
The Sixth Circuit recognizes that complete and
authenticated video/audio recordings may be dispositive
of alleged factual disputes in civil rights cases; that is,
the court must view the facts in the light depicted by
the recording and may only draw inferences in favor of
the non-movant to the extent supported by the
recordings. Rudlaff v. Gillispie, 791 F.3d 638, 639 (6th
Cir. 2015); Kinlin v Kline, 749 F.3d 573, 576-579 (6th
Cir. 2014); Shreve, supra; Dunn v. Matatall, 549 F.3d
348, 350 (6th Cir. 2008); Marvin, supra; Pennington
v. Terry, 644 Fed. Appx. 533, 538-541, 2016 U.S. App.
LEXIS 5619, 2016 Fed. App. 0164N (6th Cir. 3/23/16)
(Addendum III, Ex B); Jolley v Harvell, 254 Fed. Appx.
483, 2007 U.S. App. LEXIS 26625 (6th Cir. 11/31/07)
(Addendum III, Ex C)4.
Notably, this Court has recognized that the video
and/or audio quality of a recording “need not be
flawless” to be dispositive; rather, the sound and
images need only be “clear enough to discern what
happened and, more importantly, what did not happen.”
Pennington, 644 Fed. Appx. at 540-541 (concluding
that the court “must view the facts in the light depicted
4 See also: Bernard v. Det. Pub. Sch. Dist., 2015 U.S. Dist. LEXIS
59018, *25 (ED, Mich., 5/16/15); Lee v. Hill, 2013 U.S. Dist.
LEXIS 131158, *13-15 (E.D. Mich., 3/3/11); Evans v. Mallory,
2011 U.S. Dist. LEXIS 34471, *4-5, 10-18 (ED, Mich., 3/3/11);
Kelly v. Sines, 2015 U.S. Dist. LEXIS 121377, *2 (SD, Ohio,
9/11/15); Carter v. Porter, 2011 U.S. Dist. LEXIS 20911, *20-36
(ED, Ken. 3/1/11); Shackleford v. Gutermuth, 2005 U.S. Dist.
LEXIS 27954, *10-12 (WD, Ken, 11/01/05).
App.26a
by the videotape rather than in the light most favorable
to the plaintiff’ and, at best, the video provides a
scintilla of evidence in support of the 4th Amendment
claims).
ARGUMENT:
THE DISTRICT COURT COMMITTED CLEAR
AND REVERSIBLE LEGAL ERROR BY REFUSING
TO GRANT SUMMARY JUDGMENT OF PLAINTIFF’S FALSE ARREST CLAIMS ON THE BASIS
OF THE DOCTRINE OF QUALIFIED IMMUNITY
A.
Introduction
42 U.S.C. § 1983 confers a private federal right of
action against any person who, acting under color of
state law, deprives an individual of any right, privylege or immunity secured by the Constitution or federal
laws. Collins v. City of Harker Highs., 503 U.S. 115,
119, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992); Memphis
Comm. School Dist. v. Stachura, 477 U.S. 299, 306; 106
S.Ct. 2537; 91 L.Ed.2d 249 (1996).
Qualified immunity shields a governmental
employee from the burdens of litigation and personal
civil liability under § 1983 for money damages arising
out of the performance of discretionary functions as
long as the employee acted under the objectively reasonable, even if mistaken, belief that his/her actions
were lawful. Mullenix v. Luna,—U.S.—; 136 S.Ct. 305,
308, 193 L.Ed.2d 255 (2015); Pearson v. Callahan, 555
U.S. 223, 231-232, 129 S.Ct. 808, 172 L.Ed.2d 565
(2009); Anderson v. Creighton, 483 U.S. 635, 639; 107
S.Ct. 3034; 97 L.Ed.2d 523 (1987); Mitchell v. Forsyth,
472 U.S. 511, 526-527, 105 S.Ct. 2806, 86 L.Ed.2d 411
(1985) (“The entitlement is an immunity from suit
App.27a
rather than a mere defense to liability; and like an
absolute immunity, it is effectively lost if a case is
erroneously permitted to go to trial.”); Austin v.
Redford Twp. Police Dept., 690 F.3d 480, 495 (6th Cir.
2012). This insulation from both litigation expenses and
§ 1983 liability is broadly applied, protecting all but
the plainly incompetent or those who knowingly
violate a clearly established statutory or constitutional right. Mullenix, supra; Reichle v. Howards, 132 S.Ct.
2088, 2093, 182 L.Ed.2d 985 (2012); Harlow, 457 U.S. at
815-816; Malley, supra.
Resolving a defense of qualified immunity presents
a two-prong inquiry; specifically: whether the defendant’s conduct violated a federal right and whether this
right was clearly established at the time of the injury.
Tolan v. Cotton, U.S.____, 134 S.Ct. 1861, 1865-186,
188 L.Ed.2d 895 (2014); Pearson, 555 U.S. at 232;
Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150
L.Ed.2d 272 (2001). Reviewing courts are allowed to
decide the order in which to address the two point
inquiry. Tolan, 134 S.Ct. at 1866; Pearson, 555 U.S. at
236. The burden of proof rests squarely upon the § 1983
plaintiff to defeat the immunity defense. Quigley v.
Tuong Vinh Thai, 707 F.3d 675, 680-681 (6th Cir.
2013); Reilly v. Vadlamudi, 680 F.3d 617, 623 (6th Cir.
2012).
A constitutional right is “clearly established” when
case law in existence at the time rendered the constitutional or statutory violation “beyond debate”. Mullenix, supra; Reichle, supra; Ashcroft v. al-Kidd, 563
U.S. 731, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149
(2011); Malley v. Briggs, 475 U.S. 335, 341, 343; 89
L.Ed.2d 271; 106 S.Ct. 1092 (1986); Martin v. City of
Broadview Heights, 712 F.3d 951, 960-961 (6th Cir.
App.28a
2013). When applying this test, the Sixth Circuit looks
to Supreme Court decisions, decisions of the Sixth
Circuit and its district courts, as well as other federal
court decisions. Martin, 712 F.3d at 961; Champion v.
Outlook Nashville, Inc., 380 F.3d 893, 902 (6th Cir.
2004).
In the context of alleged 4th Amend. violations,
the Supreme Court insists that reviewing courts determine whether a right is “clearly established” based on
the exact conduct at issue—and not as a broad general
issue. Tolan, supra (courts must avoid defining the 4th
Amend. right “in a manner which imports disputed
factual propositions.”); Pearson, 555 U.S. at 236-237;
Saucier, 533 U.S. at 302.
In order to establish that an arrest violates the
4th Amend., it is incumbent upon the plaintiff to prove
that the arresting officer lacked probable cause.
Voyticky v. Vill. of Timberlake, Ohio, 412 F.3d 669,
677 (6th Cir. 2005). However, the demonstrated lack
of probable cause or a question of fact as to the existence of probable cause is not the test for qualified
immunity. Rather, and in recognition that even police
officers are human and, therefore, will inevitably
make mistakes, the Supreme Court has mandated that
police officers may not be held personally liable in
cases where they reasonably, albeit incorrectly, conclude
that probable cause is present. Brousseau v. Haugen,
543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583
(2004); Saucier, 533 U.S. at 205; Malley, 475 U.S. at
341 (immunity should be recognized if reasonable
officers could disagree on the issue of the existence of
probable cause); Anderson, 483 U.S. at 641. See also:
Goodwin v. City of Painesville, 781 F.3d 314, 333 (6th
Cir. 2014); Kennedy, 635 F.3d at 214, (“Thus, even if
App.29a
a factual dispute exists about the objective reasonableness of the officer’s actions, a court should grant
the officer qualified immunity if, viewing the facts
favorably to the plaintiff, an officer reasonably could
have believed that the arrest was lawful.”); Greene v.
Barber, 310 F.3d 889, 893 (6th Cir, 2002); Ireland v.
Tunis, 113 F.3d 1435, 1449 (6th Cir. 1997), cert. den.,
522 U.S. 118 S.Ct. 560, 139 L.Ed.2d 401 (1997) (“ ‘Probable cause determinations, even if wrong, are not actionable as long as such determinations pass the test of
reasonableness.’ ”, quoting Jeffers v. Heavin, 10 F.3d 380,
381 (6th Cir. 1993)).
The reasonableness of an officer’s probable cause
determination for the purposes of qualified immunity
presents a question of law for the courts. Hunter v.
Bryant, 502 U.S. 224, 227-228, 112 S. Ct. 534, 116
L.Ed.2d 589 (1991); Goodwin, supra; Everson v. Leis,
556 F.3d 484, 494 (6th Cir. 2009); Jeffers, supra. And,
when determining the reasonableness of an officer’s
“arguable probable cause, the reviewing court is
obliged to balance the nature and quality of the intrusion upon the claimant against the importance of the
governmental interest prompting the intrusion. Tolan,
supra; Graham v. O’Connor, 490 U.S. 386, 396, 109
S.Ct. 1865, 104 L.Ed.2d 443 (1989).
In short, a defendant police officer is entitled to qualified immunity from claims for civil damages resting
upon allegations of false or wrongful arrest if the
officer reasonably—even if erroneously—believed at
the time that the arrest was lawful in light of existing
law and the information then possessed by the officer.
See, i.e., Pearson, 555 U.S. at 232; Malley, 475 U.S. at
341; Kennedy, 635 F. 3d at 214; Russo v. Cincinnati,
953 F.2d 1036, 1049 (6th Cir. 1992).
App.30a
A. Controlling Law Mandates That Plaintiff’s
Claims of Unlawful Arrest be Subject to
Summary Judgment Because the Incontrovertible Record Demonstrates the Defendant
Police Officer had Probable Cause to Arrest
Plaintiff for Driving While Under the Influence of Intoxicants
1. Elements of § 1983 Claims for False
Arrest
The 4th Amend., as incorporated by the 14th
Amend., protects individuals from warrantless arrests
by municipal police officers in the absence of probable
cause. U.S. Const. Amend. IV; Robertson v. Lucas, 753
F.3d 606, 618 (6th Cir. 2014). The probable cause requirement was intended to prevent officers from making
“hasty, unsubstantiated arrests with impunity” and
from turning “a blind eye toward potentially exculpatory evidence known to them in an effort to pin a crime
on someone.” Ahlers v. Schebil, 188 F.3d 365, 371-372
(6th Cir. 1999).
State law defines offenses for which a person may
be arrested and federal law defines whether probable
cause existed for an arrest for the purposes of § 1983
liability. Kennedy v. City of Villa Hills, 635 F.3d 210,
215 (6th Cir. 2011). The existence of probable cause presents a jury question unless there is only one reasonable determination possible. Kinlin, 749 F.3d at 578;
Wilson v. Morgan, 477 F.3d 326, 334 (6th Cir. 2007).
Again, the claimant, alone, bears the burden of proving
the absence of probable cause. Voyticky, supra.
Whether probable cause exists depends on the
totality of the particular circumstances in existence at
the time of the arrest. Illinois v. Gates, 462 U.S. 213,
App.31a
232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Beck v.
Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142
(1964); Kinlin, 749 F.3d at 577-578; Stricker v. Twp.
of Cambridge, 710 F.3d 350, 362-363 (6th Cir. 2013);
Green v. Throckmorton, 681 F.3d 853, 885 (6th Cir.
2012). A police officer has probable cause when there
is reasonably reliable information suggesting that an
individual has committed or is about to commit a crime.
Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795,
157 L.Ed.2d 769 (2003); Texas v. Brown, 460 U.S. 730,
732, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983); Beck,
supra; Crockett v. Cumberland Coll., 316 F.3d 571, 580
(6th Cir. 2003).
Probable cause requires only the fair probability
of criminal activity at the time of the arrest and not
ironclad evidence of guilt. Brown, supra; Baker v.
McCollan, 443 U.S. 137, 145, 99 S.Ct. 2689, 61
L.Ed.2d 433 (1979); Kinlin, 749 F.3d at 578; Crocket
v. Cumberland Coll., 316 F.3d 571, 580 (6th Cir. 2003);
Criss v. City of Kent, 867 F.2d 259, 262 (6th Cir. 1988).
Reviewing courts are required to assess probable
cause determinations under an objective standard from
the viewpoint of a reasonable officer at the particular
scene based exclusively upon the actual information
known at the time of the arrest. Green, 681 F.3d at
865; Radvansky v. City of Olmsted Falls, 395 F.3d 291,
302 (6th Cir. 2005); Crockett, 316 F.3d at 580; Klein v.
Long, 275 F.3d 544, 550 (6th Cir. 2001). Courts are
prohibited from testing challenged conduct from the
standpoint of legal scholars, from the court’s own
experience, or from the court’s perspective with the
benefit of hindsight. Gates, 462 U.S. at 232; U.S. v.
Cortez, 419 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d
621 (1981); Radvansky, supra; Klein, supra. See also:
App.32a
U.S. v. Montoya De Hernandez, 473 U.S. 531, 542, 105
S.Ct. 3304, 87 L.Ed.2d 381 (1985) (“ . . . we have cautioned that courts should not indulge in ‘unrealistic
second-guessing,’ (citation omitted) and we have noted
that ‘creative [judges] engaged in post hoc evaluations
of police conduct can almost always imagine some
alternative means by which the objectives of the police
might have been accomplished.’ Id., at 686-687.)
The existence of probable cause does not necessarily depend upon the knowledge and experience of the
arresting officer, alone; rather, other officers may offer
corroborating evidence. Brown, 460 U.S. 730, 742-743;
Cassidy v. U.S., 49 F.2d 504, 504-505 (D.C. Cir. 1931);
U.S. v. Cotton, 253 F. Supp. 2d 983, 987 (S.C. Ohio,
2002); Briggs v. Holsapple, 2009 U.S. Dist. LEXIS
1295, *13-16 (D.Ct. Ore., 2/11/09) (two officers at scene
of traffic stop concurred that probable cause existed for
OWI arrest); Corcoran v. Higgins, 2010 U.S. Dist.
LEXIS 47284, *3-5, 10-12 (S.D.N.Y., 5/13/10) (two
officers witnessed plaintiff’s failure to pass three out
of four SFST’s); U.S. v. Gorder, 726 F. Supp. 2d 1307,
1315-1316 (D. Utah, 2010) (second officer at arrest
scene corroborated that initial traffic violation and
failure to properly perform SFST’s were reliable indicators of intoxication); U.S. v Jones, 500 Fed. Appx.
216, 218, 2012 U.S. App. LEXIS 26070 (4th Cir.
12/18/12) (Addendum III, Ex D); U.S. v. Kemp, 214
Fed. Appx. 127, 2007 U.S. App. LEXIS 659 (3rd Cir.
1/11/07) (Addendum III, Ex E).
Notably, the law does not impose an onerous burden upon officers who are contemplating a warrantless
arrest. While officers gathering information relevant to a
probable cause determination are required to consider
both inculpatory and exculpatory evidence, the officers
App.33a
are not required to vigorously investigate every claim
of innocence. Logsdon v. Hains, 492 F.3d 334, 341 (6th
Cir. 2007), cert. den., 555 U.S. 811, 129 S.Ct. 35, 172
L.Ed.2d 19 (2008); Gardenshire v. Schubert, 205 F.3d
303, 318 (2000). As a matter of law, unusual, bizarre,
and even innocent behavior can form grounds for
probable cause. Gates, 462 U.S. at 243, n. 13; Green,
681 F.3d at 865, U.S. v. Wright, 16 F.3d 1429, 1438
(6th Cir. 1994); U.S. v. Respress, 9 F.3d 483, 488 (6th
Cir. 1993).
As a matter of law, once officers have probable
cause, they need not investigate further. Kinlin, 749
F.3d at 580-581; Klein, 275 F.3d at 551-552; Ahlers,
188 F.3d at 371; Criss, 867 F.2d at 263.
A subsequent dismissal of charges or finding of
innocence does not render actionable an officer’s prior
determination of probable cause. Baker v. McCollan,
443 U.S. 137, 145-146, 99 S.Ct. 2689, 61 L.Ed.2d 433
(1979) (“The Constitution does not guarantee that
only the guilty will be arrested.”); Mich. v. DeFillippo,
443 U.S. 31, 36, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979);
Kinlin, 749 F.3d at 578; Criss, supra.
Finally, the subjective motive of the arresting
officer is legally irrelevant to the existence of probable
cause. Graham, 490 U.S. at 397 (officers’ purported
improper motives cannot transform objectively reasonable actions in to 4th Amend. violations); Cass v.
City of Dayton, 770 F.3d 368, 377 (6th Cir. 2014);
Kinlin, 749 F.3d at 579-580.
The long held consensus across the federal circuits,
as well as the rule in Michigan, is that the unsatisfactory performance of FST’s/SFST’s constitutes reliable
evidence upon which officers may premise probable
App.34a
cause determinations—especially where the test
results are accompanied by other indicators of intoxication. Bradley v. Reno, 2015 U.S. App. LEXIS 21100,
*1-8 (6th Cir. 12/3/15) (Addendum III, Ex F) (results of
FST’s/SFST’s combined with unsafe operation of vehicle
at 10:25 PM); Jolley, supra (failed FST’s/SFST’s
combined with unusual driving tactics and behavior);
Wynn v. Morgan, 861 F.Supp.622, 632-633 (E.D. Tenn.,
1994) (failed FST’s/SFST’s combined with erratic
driving and unusual behavior); Budgett v. Sanborn,
2015 U.S. Dist. LEXIS 102437, *2-5, 11-14 (D.Ct. Ore.,
5/14/15) (failed FST’s/SFST’s combined with failure to
dim bright lights and to follow basic instructions);
Ketchum v. Khan, 2014 U.S. Dist. LEXIS 97975, *4, 21
(ED. Mich., 2/24/14), adopted by 2014 U.S. Dist.
LEXIS 97472 (ED. Mich., 7/18/14) (failed FST’s/
SFST’s combined with unsafe driving at 3:00 AM,
watery bloodshot eyes, slurred speech and unsteadiness); Cameron v. Riverview, 2011 U.S. Dist. LEXIS
89118, *6-7 (ED. Mich., 8/11/11)(failed FST’s/SFST’s
combined with erratic driving at 1:30 AM and other
signs of intoxication); Mott v. Davis, 2011 U.S. Dist.
LEXIS 115316, *3-5, 24-28 (ED. Tenn., 10/5/11) (failed
FST’s combined watery bloodshot eyes and slurred
speech); Freeland v. Simmons, 2012 U.S. Dist. LEXIS
9804, *8, 16 (D.SC, 1/27/12) (failed FST’s combined with
early morning hour and watery bloodshot eyes); Rutherford v. Cannon, 2010 U.S. Dist. LEXIS 102016, *5-7, 1419 (D.SC, 9/2/10) (failed FST’s combined with erratic
driving and open vehicle windows on a cold night);
Shackleford, supra, at *2-3, 10-12 (failed FST’s/SFST’s
combined with erratic driving and dilated pupils); Briggs,
supra, (failed FST’s/SFST’s combined with speeding);
Wilson v. City of Coeur D’Alene, 2010 U.S. Dist.
LEXIS 123258, *3-4, 11-15 (D.Ct. Idaho, 11/19/10)
App.35a
(failed FST’s/SFST’s combined with illegal turn at
10:30 PM, flushed face, and glassy eyes); Corcoran,
supra, (failed FST’s combined with glassy eyes, slurred
speech and lack of coordination); People v. Cloutier, 2016
Mich. App. LEXIS 1704, *1-2, 9-12 (No. 326255, 9/15/16)
(failed FST’s/SFST’s combined with reckless driving at
2:00 AM, blood shot eyes and slurred speech). See also:
People v. Berger, 217 Mich. App. 213, 214-218, 551
N.W.2d 421 (1996) (FST/SFST results provide reliable
data to officers tasked with determining probable
cause for driving while intoxicated); Gorder, supra;
U.S. v. Hernandez-Gomez, 2008 U.S. Dist. LEXIS 26810,
*2-7,14-25 (D. Nev. 3/25/08) (“the results of properly
conducted standard field sobriety tests may be considered to determine whether probable cause exists to
charge a driver with driving while intoxicated.”).
The analysis and results in several of the more
factually similar cases merit discussion.
In Gorder, the Court determined that there was
probable cause for a challenged DUI arrest because
both the arresting officer and another officer on the
scene had observed the arrestee start the one-leg
stand test early, make numerous mistakes during the
one-leg stand test, and almost fall over during the
walk and turn test. Id., 726 F. Supp. 2d at 1315-1316.
The Briggs Court determined that it was objectively reasonable for an officer to believe he possessed
probable cause to arrest the plaintiff for driving while
under the influence based on the facts that plaintiff:
had been stopped for speeding; had watery bloodshot
eyes; and, had failed the walk-and-turn test. Id., 2009
U.S. Dist. LEXIS 11295 at *2-16. The Court stressed
that its conclusion was not undermined by the facts
that plaintiff passed a HGN test, arguably passed a
App.36a
one-leg stand test, and that breath and urine tests
were negative, reasoning that such exculpatory evidence did not “conclusively” negate the other reliable
evidence of intoxication. Id. at *15-16. The Court also
rejected plaintiff’s arguments that the results of the
SFST’s were not reliable since he was forced to perform them on an inclined service with loose gravel,
noting that plaintiff had failed to complain about
these conditions when the tests were administered. Id.
at *13-14.
In Burgett, the plaintiff had been stopped for
failing to dim high beam headlights, failed to follow
simple instructions, failed to properly perform the
walk and turn and badly failed the one leg stand.
SFST’s. Id., 2015 U.S. Dist. LEXIS 102437 at *3-4. A
dash cam video captured plaintiff’s poor test performances, particularly on the one-leg test. Id. at *4. Prior
to the testing, plaintiff denied having any medical
issues that would impact the test results. Id. at *1213. The results of a blood alcohol test indicated an
amount below the level where impairment is presumed under state law Id. at *12-13. The local district
attorney elected not to prosecute the DUI charges Id.
at *5.
The Burgett Court held that the inculpatory factors
relied upon by the arresting officer’s satisfied the
objectively reasonable test for probable cause. Id. at
*11. The Court rejected arguments that plaintiff’s poor
test performance was due to physical infirmaries or
difficult terrain, noting that, at the time the tests were
performed, plaintiff had failed to lodge any complaints
or offer any explanations to the arresting officer and
reasoning that “[r]egardless of why plaintiff failed the
FST’s, his failure supported probable cause to arrest
App.37a
him.” Id. at *12-13. The Court also reasoned that
neither the low blood alcohol measurement nor the
lack of prosecution nullified the other reliable
indicators of impairment. Id. at *13-14.
Wilson involved an arrest for DUI prompted by
the plaintiff’s unsatisfactory performance of the walkand-turn, one-leg-stand, and HGN tests, combined with
arresting officer’s observations that plaintiff had
made an illegal turn, was flushed, had red and glassy
eyes. Id., 2010 U.S. Dist. LEXIS 123258, *2-3. A breath
test was negative for alcohol as was an independent
urine tox-screen and, as a result, the charges were dismissed. Id., at *3-4. The Wilson Court readily rejected
attacks upon the “sufficiency” of the evidence relied
upon by the officer when making his probable cause
determination:
Officer Winstead’s observations of Mr. Wilson
at the time of the initial stop may appear to
be scant evidence of probable cause when
considered singularly and/or in hindsight
with the benefit of the test results. However,
when viewing the observations in the totality
of the circumstances at the time of the arrest,
probable cause existed for the DUI arrest. It
was late in the evening, approximately 10:30
p.m., Mr. Wilson was observed leaving The
Corner Bar, made an illegal turn, was flush
and his eyes were red and glassy, Mr. Wilson
admitted to consuming some alcohol, and he
failed the FST. These facts are sufficient evidence upon which Officer Winstead could
base his probable cause finding and arrest
Mr. Wilson for a DUI. Courts in Idaho have
found probable cause exists to arrest for a
App.38a
DUI where the individual admitted to
drinking four beers but was unable to say
where he had been drinking or where he was
going, his eyes were bloodshot and glossy, his
speech was ‘thick,’ and he failed the
Horizontal Gaze Nystagmus (HGN). (citation
omitted)
Undoubtedly the circumstances here could
have been stronger to support a finding of
probable cause. That, however, is not what is
required. The probable cause determination
asks that we answer the question of ‘if ‘at the
moment the arrest was made . . . the facts
and circumstances within [the officer’s] knowledge and of which [he] had reasonably
trustworthy information were sufficient to
warrant a prudent man in believing’ that the
suspect had violated a criminal law.’ (citation
omitted) Upon the facts and circumstances
known to Officer Winstead at the time of the
arrest, there was sufficient probable cause to
arrest Mr. Wilson.
Id., emphasis supplied.
2. As a Matter of Incontrovertible Fact,
Probable Cause Existed for Thibault’s
Arrest for Driving While Intoxicated
It is unlawful in Michigan to operate a motor
vehicle on the public roads while under the influence
of alcohol or other intoxicating substance. MCL
§ 257.625(1)5. MCL § 257.625(25) broadly defines “intoxicating substance” as:
5 “(1) A person, whether licensed or not, shall not operate a
App.39a
(25) As used in this section:
(a) “Intoxicating substance” means any
substance, preparation, or a combination of
substances and preparations other than
alcohol or a controlled substance, that is
either of the following:
(i)
Recognized as a drug in any of the following
publications or their supplements:
(A) The official United States pharmacopoeia.
(B) The official homeopathic pharmacopoeia
of the United States.
(C) The official national formulary.
(ii) A substance, other than food, taken into a
person’s body, including, but not limited to,
vapors or fumes, that is used in a
The Michigan Legislature enacted MCL § 257.625
in order to address the “enormity of dangers”—including
the risks posed to innocent members of the general
public—posed by intoxicated drivers. People v. Rogers,
438 Mich. 602, 621, 475 N.W. 2d 717 (1991). See also:
People v. O’Neal, 198 Mich. App. 118, 122, 497 N.W.2d
535 (1993); Holland v. Dreyer, 184 Mich. App. 237,
vehicle upon a highway or other place open to the general public
or generally accessible to motor vehicles, including an area
designated for the parking of vehicles, within this state if the
person is operating while intoxicated. As used in this section,
“operating while intoxicated” means any of the following:
(a) The person is under the influence of alcoholic liquor, a controlled substance, or other intoxicating substance or a combination of alcoholic liquor, a controlled substance, or other
intoxicating substance.” manner or for a purpose for which it was
not intended, and that may result in a condition of intoxication.
App.40a
238, 457 N.W.2d 56 (1990); People v. Aughton, 1996
Mich. App. LEXIS 1124, *4 (No. 185297, 719199). This
Court has independently acknowledged that ‘ “it is
indisputable that allowing intoxicated persons to
drive motor vehicles violates public policy.” ’ Marvin,
509 F.3d at 245.
In this case, Officer Wierszewski justified his determination that there was probable cause for
suspecting that Thibault violated MCL § 257.625 upon
the following:
Wierszewski’s extensive prior training, experience, and certification as an expert in the
administration of FST’s, including the standard tests adopted and advocated by the
NHTSA;
Thibault’s inability to successfully perform six
out of eight FST’s/SFST’s;
other reliable indicators of intoxication presented by the time of day, Thibault’s erratic
driving, Thibault driving with windows open and
with the radio turned up extremely loud during
the cold early morning hours, Thibault’s slow
speech, read and flushed fact, Thibault was disoriented and restless, and, Thibault’s attempts
to smoke and extinguish an unlit cigarette.
Relying exclusively upon this Court’s decision in
Green, supra, the District Court denied summary
judgment on Plaintiff’s false arrest claims, reasoning
that it was “hotly disputed” whether Wierszewski’s
proximate cause determination was objectively reasonable.
App.41a
For the purposes of this appeal, the Defendant
concedes that, when viewed in a light most favorable
to Plaintiff, the evidence in the record, specifically, the
deposition testimony of Thibault and Bugbee, creates
reasonable questions of fact with respect to whether:
at the time of the initial traffic stop, the radio
in Thibault’s truck was playing unusually loud;
and,
the HGN SFST had been properly administered
and, therefore, whether the test results served
as a reliable indicator of intoxication.
However, the Defendant-Appellant maintains that
the District Court committed clear and reversible
error by failing to assess the remainder of the probable
cause factors in the light of the incontrovertible potions of the record.
First, the District Court committed reversible
error by failing to recognize that certain facts were
undisputed. Specifically, and notably unlike the plaintiff
in Green, Thibault’ s counsel admitted, on the record
(RE #32, Pg ID 837, 842-843, 859-860), that:
Thibault drove erratically on 12/5/14;
the windows of Thibault’s truck were down
while he was driving;
Thibault never attempted to explain why he
had an unlit cigarette in his mouth;
Wierszewski was not told that Thibault had a
speech impediment that would account for his
slow speech; and,
Thibault denied having any medical conditions
that would impact his ability to perform tests.
App.42a
As a matter of law, these undisputed facts,
certainly when considered cumulatively, sufficiently
justified Wierszewski’s conclusion that there was a
fair probability that Thibault was intoxicated. Bradley,
supra; Jolley, supra; Wynn, supra; Ketchum, supra;
Cameron, supra; Freeland, supra; Shackleford, supra;
Wilson, supra; Cloutier, supra; Briggs, supra; Burgett,
supra.
Second, the District Court committed reversible
error by failing to recognize that, markedly unlike the
Green case, the probable cause determination in this
case was not premised upon Wierszewski’s observations, alone.
Officer Cashion, who was at the scene of the
detention and arrest, confirmed that probable cause
existed based upon her independent observations that:
Thibault had been driving erratically in the
early morning hours;
Thibault had been driving with and hanging out
of open windows with the truck radio
exceedingly loud;
Thibault’s face was flushed and red;
Thibault was behaving strangely by attempting
to smoke and extinguish an unlit cigarette,
listening to exceedingly loud music, and
keeping the windows of his cab open on a cold
night; and,
the results of Thibault’s performance of 6 of the
8 FST’s/SFST’s were indicative of intoxication.
(Cashion Aff., RE #12-6, Pg ID 218-223; DVD, RE #122, Pg ID 127; Transcript, RE #12-5, Pg ID 188-215)
App.43a
Officer Dionne and Sgt. Krizmanich, who were
advised as the intoxication indicators already observed
by Wierszewski and Cashion and who witnessed the
second walk-and-turn test, also independently determined probable cause existed for Thibault’s arrest (RE
#12-9, Pg ID 269-273; RE #12-10, Pg ID 275-279; DVD,
RE #12-2, Pg ID 127; Transcript, RE #12-5, Pg ID 202206).
As a matter of law, the concurring judgment of
the other officers on the scene renders Wierszewski’s
probable cause determination objectively reasonable.
Brown, supra; Cassidy, supra; Cotton, supra; Briggs,
supra, Corcoran, supra; Gorder, supra; Jones, supra;
Kemp, supra.
Third, the District Court committed reversible
error by failing to view many of the allegedly disputed
facts in the light of the incontrovertible evidence provided by the dash camera recording of Thibault’s
detention, testing, and arrest. At the outset, it must
be acknowledged that the recording has been
authenticated as complete and accurate (Wierszewski
Aff., RE #12-2, Pg ID 112-113; Cashion Aff., RE #126, Pg ID 220-221; Dionne Aff., RE #12-9, Pg ID 270271; Krizmanich Aff., RE #12-10, Pg ID 276-277), and,
there is no evidence to the contrary. More to the point,
the recording substantiates the objectively reasonable
nature of several of the factors relied upon by
Wierszewski to establish probable cause.
In particular, the recording confirms the later
documented observations of Wierszewski and Cashion
that, at the time he was detained Thibault’s face was
flushed and red and he was attempting to smoke an
unlit cigarette (DVD, RE #12-2, Pg ID 127; Transcript,
RE #12-5, Pg ID 198-200).
App.44a
The recording also verifies that Thibault attempted
to extinguish the unlit cigarette when he exited the
truck cab. Specifically, the recording plainly reveals
that, as Thibault was exiting the cab, Wierszewski
inquired whether Thibault “realize[d] that the cigarette
was not even lit.” (DVD, RE #12-2, Pg ID 127; Transcript, RE #12-5, Pg ID 189-190). Thibault’s response:
“No. It goes out a lot.” (Id). The only reasonable interpretation of this clear and discernible response:
Thibault did not realize that the cigarette was unlit,
an omission he justified on the basis that the cigarette
often extinguished itself. The District Court reasoned
that this audio evidence was not dispositive because it
was not accompanied by video evidence which might
have documented that Thibault did not physically
extinguish the cigarette (RE #32, Pg ID 789). As a
matter of law, such speculation is insufficient to defeat
the complete, accurate and incontrovertible audio evidence. Liberty Lobby, supra; Matsushita Elec. Indus.,
supra; Pennington.
Separately, but equally as a matter of law,
Thibault’s 11th hour affidavit stating that he never
attempted to extinguish an unlit cigarette must be
rejected as genuine evidence as it is blatantly contradicted by the audio recording and, not incidentally,
his attorney’s admissions on the record that Thibault
never advised Wierszewski why he had an unlit cigarette in his mouth. Scott, supra; Rudlaff, supra; Kinlin,
supra; Shreve, supra; Marvin, supra; Dunn, supra;
Jolley, supra.
The audio portion of the recording likewise establishes that Thibault began shivering as soon as he
exited the truck cab (DVD, RE #12-2, Pg ID 127;
Transcript, RE #12-5, Pg ID 190). And, while it is true
App.45a
the recording also reveals Thibault’s attempts to
downplay his shaking by claiming he was chilled, as a
matter of law, Wierszewski was not obliged to accept
this claim of innocent behavior as true. Logsdon,
supra; Gardenhire, supra. Additionally, even if true,
as a matter of law, such innocent behavior—and highly
unusual behavior since it is undisputed that Thibault
had been driving with the truck windows open—is an
acceptable basis for a probable cause determination.
Kinlin, supra; Klein, supra; Ahlers, supra; Criss,
supra. Moreover, as a matter of law, the mere presence
of exculpatory evidence does not nullify the reliable
and countervailing evidence tending to establish
probable cause. Briggs, supra; Burgett, supra.
Additionally, the audio recording absolutely proves
that Thibault did not correctly perform the alphabet
recitation test (DVD, RE #12-2, Pg ID 127; Transcript,
RE #12-5, Pg ID 192). Specifically, this portion of the
audio blatantly contradicts the District Court’s conclusion that the testimony of expert Bugbee created a
question of fact regarding whether Thibault “passed”
the alphabet test. Therefore, as a matter of law, the
District Court erroneously relied upon the opinion evidence to deny summary judgment. Scott, supra;
Rudlaff, supra; Kinlin, supra; Shreve, supra; Marvin,
supra; Dunn, supra; Jolley, supra. Point in fact: expert
Bugbee actually testified that Thibault improperly
performed the test because he was confused by
Wierszewski’s instructions (RE #18-4, Pg ID 555-556).
Still, as a matter of law, the opinion testimony fails to
create a genuine issue of material fact since the audio
recording does not evidence that, at the time of the
test, Thibault voiced any objections or requests for
clarification (See DVD, RE #12-2, Pg ID 127, Trans-
App.46a
cript, RE #12-5, Pg ID 192 and Gates, supra; Beck,
supra; Kinlin, supra; Stricker, supra; Green, supra;
Briggs, supra; Budgett, supra.
Moreover, the dash cam recording blatantly contradicts the District Court’s conclusion that a question
of fact exists as to whether Thibault passed the oneleg-stand test. The District Court’s nitpicking regarding the quality or scope of the video portion notwithstanding, the recording allows easy discernment of the
facts that Thibault: failed to count as instructed; failed
to maintain a 6” leg elevation; failed to keep his arms
at his side and used them for balance; and, repeatedly
swayed and hopped on his planted foot. As matter of
law, this evidence is now incontrovertible. Scott, supra;
Rudlaff, supra; Kinlin, supra; Shreve, supra; Marvin,
supra; Pennington, supra; Jolley, supra; Dunn, supra.
Similarly, as a matter of law, the District Court
improperly relied upon expert Bugbee’s testimony as
creating an issue of fact with respect to whether
Wierszewski properly administered the one-leg test.
For, Bugbee admitted under oath that there was no
evidence that Wierszewski improperly administered
the one-leg test (RE #18-4, Pg ID 554). And, while
Bugbee may have criticized Wierszewski’s characterization of Thibault’s performance of the properly
administered test, such criticisms must be rejected as
legally irrelevant to the extent that they are blatantly
contradicted by the real time recording. Scott, supra;
Rudlaff, supra; Kinlin, supra; Shreve, supra; Marvin,
supra.
Finally, the dash cam recording serves as
incontrovertible evidence that Thibault failed to
successfully perform two separate walk-and-turn tests.
The recording undeniably demonstrates that Thibault
App.47a
engaged in substantial swaying and flailing of arms
and legs in an effort to maintain his balance—a fact
the District Court itself readily recognized (DVD, RE
#12-2, Pg ID 127; RE #32, Pg ID 844, 846). And, the
District Court’s reliance upon Bugbee’s testimony as
evidence to the contrary is legally indefensible since
Bugbee admitted under oath that the tests were
properly administered and that, under the particular
circumstances, reasonable officers could view Thibault’s
performances as indicative of intoxication. See: RE
#18-4, Pg ID 552-553 and Scott, supra; Rudlaff, supra;
Kinlin, supra; Shreve, supra; Marvin, supra; Jolley,
supra; Dunn, supra; Pringle, supra; Brown, supra;
Beck, supra; Crockett, supra; Green, supra; Radvansky,
supra; Klein, supra.
Without doubt, and notwithstanding the District
Court’s blithe assumptions to the contrary, Thibault’s
deposition testimony does not create a question of fact
with respect to the reliability of the results from the
walk-and-turn tests.
Thibault testified that, immediately before performing the first walk-and-turn test, he revealed that
he had balancing issues (RE #12-7, Pg ID 247, 253).
Yet, no such statement can be heard in the audio
recording before the performance of either the first or
second walk-and-turn tests. Indeed, the recording
which, again, has been authenticated as accurate and
unedited, distinctly reveals that, immediately before
the first walk-and-turn test, Thibault expressly denied
having any physical problems that would interfere
with his performance of any test (DVD, RE #12-2, Pg
ID 127, media time 1:53:20-1:53:23; Transcript, RE
#12-5, Pg ID 192).
App.48a
In any event, even if Thibault’s blatantly contradicted testimony is accepted as true, as a matter of
law, Wierszewski was not required to accept such evidence as dispositive with respect to his probable cause
determinations. Logsdon, supra; Gardenshire, supra.
The bottom line is that the dash cam recording
and other undisputed or indisputable evidence in the
record provides incontrovertible proof that, under the
particular circumstances and with the information he
possessed at the time, it was objectively reasonable for
Officer Wierszewski to believe that there was a fair
probability that Thibault was operating his semi-truck
while under the influence of intoxicants. That
Wierszewski’s professional judgment in this regard
was objectively reasonable finds further support in the
independent conclusions of the three other officers at
the scene.
Critically, and despite Plaintiff’s unsubstantiated
and, frankly, outrageous accusations to the contrary,
there is no evidence that Wierszewski was motivated
by a desire to railroad an innocent Thibault and made
a hasty decision to arrest without any evidence of
possible intoxication. Indeed, Wierszewski’s alleged
nefarious motivations are legally irrelevant to the
assessment of the objective reasonableness of the
probable cause determination. Graham, supra, Cass,
supra; Kinlin, supra.
At any rate, the dash cam recording and other
undisputed documentary evidence conclusively demonstrates that Wierszewski engaged in a lengthy and
painstaking investigation during which he acknowledged and documented both inculpatory and exculpatory evidence (DVD, RE #12-2, Pg ID 127; Transcript, RE #12-5, Pg ID 189-207). As a matter of law,
App.49a
the mere fact that there was acknowledged exculpatory evidence did not preclude entry of summary judgment. Brown, supra; Baker, supra; Logsdon, supra;
Gardenhire, supra; Kinlin, supra; Crockett, supra;
Criss, supra; Briggs, supra; Budgett, supra.
Similarly, the District Court erred as a matter of
law by allowing determination of summary judgment
on the false arrest claims to be impacted, to any
extent, by the results of blood tests performed after
the arrest or by the dismissal of the charges against
Thibault. Brown, supra; Baker, supra; DeFillippo,
supra; Gates, supra; Beck, supra; Kinlin, supra;
Stricker, supra; Chriss, supra; Radvansky, supra;
Crockett, supra; Klein, supra.
In sum, Wierszewski correctly concluded that the
inculpatory evidence, which included FST/SFST performances and other factors indicative of intoxication,
was both reliable and sufficient to tip the scales in
favor of protecting the general public from the fair
probability that Thibault was legally unfit to drive. As
a matter of law, this evidence is enough to justify
Thibault’s probable cause determination and, as such,
enough to warrant entry of summary judgment on
Plaintiff’s false arrest claims.
In conclusion, the District Court committed clear
and reversible error by failing, as required under controlling case law, to properly assess the impact of the
undisputed and incontrovertible evidence in the
record upon the tenability of Plaintiff’s false arrest
claims. On this basis, alone, the Court may reverse the
Amended Opinion and Order dated June 24, 2016 and
remand for entry of a final judgment in favor of this
Defendant.
App.50a
B. As a Matter of Law, It Was Reasonable for the
Defendant Officer to Believe That He Had
Probable Cause to Arrest Plaintiff for Driving
While Under the Influence of Intoxicants
Even assuming that the District Court properly
denied summary judgment on the basis that genuine
and material factual disputes exist regarding the
objective reasonableness of Wierszewski’s probable
cause determination, the Defendant is entitled to
summary judgment because, under the law clearly
established on the date of Thibault’s arrest, Wierszewski could have reasonably believed that Thibault’s arrest was both lawful and necessary to protect
the general public and Thibault from the enormous
dangers associated with driving while intoxicated,
regardless of whether this belief was ultimately determined to be erroneous.
Federal and Michigan case law in existence at the
time of the 2014 arrest fully supported Wierszewski’s
determination that Thibault’s inability to successfully
complete FST’s/SFST’s provided probable cause for an
arrest under MCL § 257.625—especially when this
factor is combined with the other reliable indicators of
intoxication presented by Thibault in this case, to wit,
erratic driving, general confusion or disorientation, a
red and flushed face, driving with windows open
despite cold weather, and other unusual, even if
innocent behaviors. Jolley, supra; Wynn, supra; Ketchum, supra; Cameron, supra; Mott, supra; Freeland,
supra; Gorder, supra; Rutherford, supra; Shackleford,
supra; Briggs, supra; Hernandez Gomez, supra;
Wilson, supra; Corcoran, supra; Berger, supra.
Notably, the Corcoran and Briggs Courts held that,
as a matter of law, the reasonableness of the arresting
App.51a
officers’ beliefs is conclusively demonstrated where, as
here, other officers witnessed detainees’ performances
of FST’s/SFST’s and independently arrived at or concurred with the arresting officer’s judgments. These
decisions are absolutely consistent with well-settled
case law holding that, generally, where other officers
are on the scene or serve as witnesses, the existence of
probable cause does not necessarily rest solely upon
the knowledge and experience of the arresting officer.
Brown, supra; Cassidy, supra; Cotton, supra; Gorder,
supra; Jones, supra; Kemp, supra.
Equally notably, several of the relevant cases concluded that, as a matter of law, “arguable probable
cause” determinations are not undermined or negated
where, as here, there is evidence of subsequent and
negative blood or other scientific test results. Corcoran,
supra; Wilson, supra; Briggs, supra; Budgett, supra;
Wynn, supra; Freeland, supra. These decisions are
totally compatible with cases which, generally, stand
for the propositions that: whether probable cause
exists depends upon the exact circumstances surrounding the arrest; and, a subsequent dismissal of
charges or an exoneration on the merits do not render
actionable officers’ probable cause determinations.
Gates, supra; Beck, supra; Kinlin, supra; Stricker,
supra; Chriss, supra; Radvansky, supra; Crockett,
supra; Klein, supra; Baker, supra; DeFillippo, supra.
More to the point, the decisions are compatible
with well-established judicial recognition that the
very purpose of qualified immunity is to shield police
officers from the burdens of litigation and potential
personal liability arising out of situations where
officers reasonably, albeit mistakenly, conclude that
probable cause is present. Mullenix, supra; Pearson,
App.52a
supra; Creighton, supra; Mitchell, supra; Reichle,
supra; Harlow, supra; Malley, supra.
Finally, the record is devoid of any evidence that
Officer Wierszewski was plainly incompetent or intentionally violated Thibault’s 4th Amend. rights. Instead,
and indeed, the dash cam recording conclusively
establishes that Wierszewski was unfailingly polite,
considerate and professional during his interactions
with Thibault (DVD, RE #12-2, Pg ID 127; Transcript,
RE #12-5, Pg ID 188-207). The recording also
undeniably demonstrates that Wierszewski sincerely
and appropriately wrestled with the need to properly
balance the absence of physical evidence and the presence of other exculpatory evidence, on one side, against
the factors his specialized training and experience
taught him were indicative of intoxication and his
duty to protect the general public and Thibault from
the dangers associated with operating a vehicle while
intoxicated, on the other side. See: DVD RE #12-2, Pg
ID 127;
CONCLUSION AND RELIEF REQUESTED
For the reasons stated, Defendant-Appellant Edward Wierszewski requests this Honorable Court to
reverse the portion of the District Court’s Amended
Opinion and Order dated June 24, 2016, denying summary judgment of Plaintiff’s false arrest claims, and,
remand this matter for entry of a final judgment in
favor of the Defendant pursuant to F. R. Civ. Pro. 56.
App.53a
THOMAS, DeGROOD & WITENOFF, P.C.
/s/ Michelle A. Thomas
P35135
Attorneys for Defendant
400 Galleria Officentre, Suite 550
Southfield, MI 48034
(248) 353-4450
mthomas@thomasdegrood.com
App.54a
MARTY BUGBEE’S DEPOSITION TRANSCRIPT
(FEBRUARY 23, 2016)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
________________________
ALAN THIBAULT,
Plaintiff,
v.
EDWARD WIERSZEWSKI,
individually and in his official capacity
as a Public Safety Officer,
Defendant.
________________________
Case No. 2:15-cv-11358
MARTY BUGBEE,
After having been first duly sworn to tell the truth,
the whole truth and nothing but the truth, was
examined and testified as follows:
EXAMINATION
BY MR. DEGROOD:
Q.
Good morning. Would you state your full legal
name for the record?
A.
My name is Marty George Bugbee. Spelling: M-ar-t-y. G-e-o-r-g-e. B-u-g-b-e-e.
App.55a
Q.
Mr. Bugbee, my name is George DeGrood. I represent the defendants in this lawsuit that was commenced against them on behalf of Mr. Alan
Thibault.
MR. DEGROOD: The deposition is being taken pursuant to notice and pursuant to the Michigan, the
actual Federal Rules of Evidence and the Federal
Rules of Civil Procedure.
Q.
Could you please give me your residential address.
A.
1380 Larkmoor Boulevard. L-a-r-k-m-o-o-r. Boulevard. Berkley, Michigan 48073.
(Deposition Exhibit No. 1
marked for identification.)
Q.
Mr. Bugbee, I’m going to hand to you what has
been marked as Deposition Exhibit No. 1. For the
record could you please identify what this is.
A.
This is my curriculum vitae.
Q.
Would you agree it’s two pages long?
A.
Yes.
Q.
There’s nothing in your C.V. that has any type of
fee schedule with respect to any of the efforts that
you might provide to individuals who hire you for
your services. True?
A.
Yes, sir. That is true.
Q.
Yesterday on February 22nd, 2016, you forwarded
to my office a request that indicated that I would
need to have a check in the amount of $700 for a
minimum of a four hour appearance fee for your
deposition today. Correct?
A.
Correct.
App.56a
Q.
Have I so far given you the 700 check?
A.
Yes, you have, sir.
Q.
Your hourly fee is identified as $175 per hour. My
question to you is: Is that the fee, $175 per hour,
that you charge for review as well as for testifying
in court?
A.
Yes.
Q.
Should it be necessary for you to proceed to court,
do you also do a four hour minimum or do you go
by straight hourly rate?
A.
It would be by straight hourly rate.
Q.
It appears to me in my review of Exhibit 1 that
for the majority of your adult life you were employed by the State of Michigan as a Michigan
State Police Trooper?
A.
That is correct.
Q.
That began in April of 1989?
A.
Yes, sir.
Q.
And you retired from the Michigan State Police in
April of 2011?
A.
That’s correct.
Q.
What was your rank at the time of your retirement
from the Michigan State Police?
A.
I was a Detective First Lieutenant.
Q.
At what location or post were you working when
you last worked for the State Police?
A.
I was the Commander of the Information Sharing
Environment Section and that was located at the
App.57a
HIDTA: H-I-D-T-A, HIDTA Office in downtown
Detroit.
Q.
Is that in the New Center area?
A.
Yes, sir. That’s near Grand Circus Park, right
near the Tiger Stadium, Comerica Park.
Q.
Now it indicates—strike that.
Have you ever been certified as a standard sobriety
field test expert: Yes or no?
A.
Yes.
Q.
When were you so certified as an instructor for
standard field sobriety testing?
A.
You say expert or instructor?
Q.
As an instructor.
A.
I was a Field Training Officer with the Michigan
State Police, as well as with other the police
department prior to Michigan State Police. And
in that capacity I instructed other officers and
troopers on field sobriety testing and the arrest
process for alcohol enforcement.
Q.
The prior law enforcement agency that you worked
with before joining the State Police was what
agency?
A.
I was a police officer with Chesterfield Township
Police Department. I graduated from the Macomb
Police Academy in 1985. I worked there on a part
time for several months. Then I went to the
Plymouth Township Police Department, where I
worked from ‘85 to ‘89. There I served as a Field
Training Officer.
App.58a
Q.
Now as I understand a Field Training Officer’s
role, as it existed when you were at both the
Plymouth Township and Michigan State Police,
that was pretty much hands on experience with
respect to-I’ll use the term rookie or a new hire in
the agency. Correct?
A.
That’s correct.
Q.
So they would in essence ride along with you if
you were doing road patrol and looking for possible
individuals who were violating traffic laws?
A.
Yes.
Q.
And you would perhaps point out to them a situation and perhaps quiz them, etcetera, to make
sure that they fully understood the law and were
capable of applying same to given circumstances?
A.
No. It’s a little more complex than that.
Q.
Well, did you ever sit down with your Field
Training Officers with respect to teaching any
field sobriety testing with any course textbook or
anything of that nature? Yes or no.
A.
Yes.
Q.
What textbook would you have used?
A.
It would have been the Field Training Manual.
Q.
For the State Police?
A.
No. For the Plymouth Township Police Department
and then also the Michigan State Police.
Q.
Now I see a fair amount of materials in front of
you and did you bring materials in response to the
notice to produce that was attached?
App.59a
A.
Yes, I did.
Q.
What did you bring with you; what materials?
A.
Well, I brought a disk that I burned for you that
contains the National Highway Transportation
Safety Administration manuals for three different
levels of alcohol enforcement. One being the DUI
or DWI Detection Manual for Standard Field
Sobriety Testing. The other manual being the
Advanced Alcohol Enforcement Manual and the
third manual that is on here is the Drug Recognition Expert Manual.
Q.
All right.
A.
Also other resources. Just some correspondences
and some—
Q.
Let me just stick with the first one here.
MR. DEGROOD: We’ll mark this as Exhibit 2, please.
(Deposition Exhibit No. 2 marked for identification.)
Q.
Mr. Bugbee, with respect to Exhibit No. 2, do you
have an index somewhere as to what is on here or
were you testifying from memory?
A.
Testifying from memory.
Q.
With respect to the first manual that you
identified, what was that again?
A.
That was the DWI Detection Manual. That’s just
my memory of what the title was. It’s not specific.
Q.
What edition was that?
A.
Don’t know.
Q.
What was the second manual?
A.
That was the—I would like to look at my—
App.60a
Q.
Go ahead. You can pull out your notes, whatever.
MR. RADNER: If you like, I can turn my laptop on
and we can all look together at it. That’s why I
brought my laptop.
MR. DEGROOD: That’s okay. I can’t read electrons.
A.
The second manual is the Advanced Roadside
Impaired Driving Enforcement Manual.
Q.
What edition was that?
A.
R5 slash 13 edition.
Q.
What was the third manual on that?
A.
The third manual is the training manual. It’s a
NHTSA manual, NHTSA being: National Highway
Transportation Safety Administration Manual,
training manual for DRE.
Q.
What edition was that?
A.
Don’t know off the top of my head.
Q.
Were any of these manuals the manuals that you
procured from Michigan State Police Sergeant
Perry Curtis within the past two or three weeks?
A.
Perry Curtis. I didn’t speak to a Perry Curtis.
Q.
Did you procure any of those manuals from the
Michigan State Police within the last two or three
weeks?
A.
I procured the Standard Field Sobriety Test
Manual, the first one.
Q.
When did you procure that?
A.
It would have been within the last two weeks.
Q.
From where did you procure it?
App.61a
A.
Directly from Detective or—excuse me. From First
Lieutenant James Flegal.
Q.
James and his last name?
A.
James Flegal: F-l-e-g-a-l. He’s the Section Commander for Traffic Services Division.
Q.
Before procuring that manual from Sergeant
Flegal when is the last time that you had reviewed
that manual from today going backwards?
A.
I don’t recall.
Q.
Would it have been when you were still employed
as a Michigan State Police Officer?
A.
Possibly.
Q.
What about the other two manuals, the NHTSA
manual, when did you last review that?
A.
I don’t recall when that was either.
Q.
More likely than not when you were still engaged
as an officer with the Michigan State Police? A.
Possibly.
Q.
What about with the DWI Detection Manual, same
question. When did you last utilize that?
A.
I don’t recall that either.
Q.
Probably when you were still working at the State
Police?
A.
Possibly.
Q.
Would I be correct that at no time since retiring
from the Michigan State Police in April of 2011,
were you involved in any type of traffic stops of
citizens on the roadway suspected of either erratic
driving or operating under the influence?
App.62a
A.
That’s correct.
Q.
So with respect to the date of December 5th, 2014,
you were not actively engaged in any type of
traffic stops for any law enforcement agencies.
Correct?
A.
That’s correct.
Q.
Would I also be correct that in December of 2014,
you were no longer engaged in field training
exercises as a field training officer?
A.
That’s correct.
Q.
Would your activities as a field training officer
have ceased when you retired in April of 2011,
from the Michigan State Police?
A.
That’s correct.
Q.
Would I be correct that at no time have you ever
participated in a lecture as part of instruction in
field sobriety tests?
A.
Participated in as in?
Q.
As a lecturer to a group of individuals who were
undergoing training?
A.
No. I have not done that.
Q.
Now you indicated that you also had the DRE
Manual?
A.
Correct.
Q.
When did you first receive a copy of a DRE Manual?
A.
I don’t recall when I first looked at one.
Q.
Was it in connection with your review of this
case?
App.63a
A.
That was the last time I looked at it. I don’t recall
prior to that when I looked at one.
Q.
Is it possible that the first time that you saw a
DRE Manual was as a result of your participation
in this lawsuit?
A.
No. I believe I have reviewed one in the past.
Q.
Am I correct that you are not a-when you use the
term DRE, what are you referring to?
A.
Drug Recognition Expert.
Q.
Have you ever taught the DRE curriculum?
A.
No, I have not.
Q.
Have you ever been certified to teach the DRE
curriculum?
A.
No, I have not.
Q.
Have you ever participated as a student in the
DRE curriculum?
A.
No, I have not.
Q.
So you have never been trained and do not hold
yourself out as a drug recognition expert. Correct?
A.
Correct.
Q.
Now as a result of your involvement in this
lawsuit-and by the way, when were you first contacted to consider becoming engaged in this
matter?
A.
It would have been I think three weeks ago.
Q.
Since being retained approximately three weeks
ago in this matter, have you kept a log of the
amount of time that you have spent in your
endeavors?
App.64a
A. No, I haven’t.
Q.
When you were first contacted, by whom were you
first contacted approximately three weeks ago?
A.
I was contacted by Solomon Radner.
Q.
Had you ever provided any review services for
purposes of rendering any type of opinions for Mr.
Radner in any cases prior to your involvement in
this one?
A.
No, I have not.
Q.
How about with respect to Mr. Radner’s law firm,
1-800-Law-Firm, have you ever been retained by
the firm to participate in providing review and/or
opinions with respect to any type of police work
besides this case?
A.
No, I have not.
Q.
Do you in some fashion advertise your availability
to provide opinions concerning police activities?
A.
No.
Q.
Do you have any idea how Mr. Radner discovered
your availability?
A.
I believe it was through word of mouth.
Q.
Word of mouth regarding who?
A.
I don’t know who he spoke to but he contacted me
and said he had talked to somebody who said to
talk to me.
MR. RADNER: I forgot that guy’s name too or I would
tell you.
MR. DEGROOD: That guy’s name you mean?
MR. RADNER: Yes.
App.65a
MR. DEGROOD: It was a gal actually and you forgot
that conveniently.
MR. RADNER: It was a girl you said?
Q.
Would I be correct that nowhere in Exhibit 1 do
you indicate that you hold yourself out as an
expert in standard field sobriety testing?
A.
That’s correct.
Q.
As you use the term standard field sobriety
testing, what does that mean to you?
A.
Well, that means you’re trained in the capability
to detect driving behaviors that could indicate
intoxication. Trained in collecting observations of
drivers from direct contact. Conducting standardized testing to determine probable cause to make
arrests for driving under the influence of alcohol
or drugs.
Q.
With respect to the three manuals that you have
reproduced on Exhibit No. 2, can you tell me with
respect to any of those manuals which if any sections of those manuals were reviewed by you in
formulating any opinions you might be rendering
here today?
A.
I reviewed each manual and every page over the
weekend.
Q.
Do you have any recollection how long that took
to review every page of those three manuals?
A.
Most of the weekend. I didn’t log the time.
Q.
How are you being paid for your services by Mr.
Radner; by the hour?
A.
Flat fee.
App.66a
Q.
A flat fee?
A.
Yes.
Q.
What is that flat fee?
A.
I provided a deposit slip indicating that in my discovery to you. It’s $2,000.
Q.
All right. So no matter if it takes one hour or 60
hours it’s a flat fee of $2,000 for Mr. Radner. Correct?
A.
Correct.
Q.
Would that be the basis upon which you have
failed to complete a log as to the time that you
have invested in this matter?
A.
Tracking time didn’t matter. No.
Q.
So you’re not keeping track of time at all. It
doesn’t matter?
A.
No.
Q.
How do you ever determine whether or not you
have made money, broke even or lost money with
respect to the time and efforts put into your
review process?
A.
I don’t.
Q.
Have you testified in open court with respect to
opinions of constitutional violations by police
officers?
A.
No.
Q.
Have you testified in open court as an expert
witness?
A.
As a police officer, yes.
App.67a
Q.
When you were still employed by Michigan State
Police?
A.
Right. Right.
Q.
Since retiring from the Michigan State Police,
have you testified in open court as an individual
rendering opinions critical of police officers?
A.
No, I have not.
Q.
Have you at any time testified in open court as an
individual offering opinions substantiating the
activities of police officers who are being sued for
alleged wrongdoings?
A.
No, I have not.
Q.
So just so I’m clear. At no time since your retirement from Michigan State Police have you
testified in any court in the State of Michigan,
state court or federal court?
A.
Correct.
Q.
Have you testified in any other states?
A.
No.
MR. RADNER: Just so we’re clear. I’m just going to
make a little objection here that you kind of went
back from or you switched from asking him only
if he has been qualified as an expert and asked
questions for his opinions.
Then you kind of wrapped that up with a question
of: You have never testified in any state or federal
court. I think that when he was answering, he
was answering as to the being qualified as an
expert for his opinions.
MR. DEGROOD: Pardon me? What’s your objection?
App.68a
MR. RADNER: I stated it already.
MR. DEGROOD: Sounded like a treatise to me but
that’s okay.
Q.
What is the next item that you have brought with
you?
A.
Well, it was a description of the drug or the
training sequence for-it was just a reference that
I looked at while I was reviewing things.
Q.
May I see that?
A.
It’s for the training courses that are offered by
Michigan State Police in regard to alcohol enforcement, the different stages of training. It was
just a reference that I had reviewed pursuant to
your discovery order. I produced that as well
because I had read it through the weekend.
Q.
Let’s mark that Exhibit No. 3. Before you mark
Exhibit No. 3.
To your independent knowledge and recollection
at the time of your retirement from the Michigan
State Police, was there a drug recognition expert
program available to officers in Michigan?
A.
I don’t recall. I don’t.
MR. RADNER: What was Exhibit 3?
Q.
You don’t recall or you don’t know?
A.
I don’t know if there was or not. I don’t recall if I
knew that at the time.
Q.
Okay.
MR. DEGROOD: We’ll now mark this as Exhibit 3.
(Deposition Exhibit No. 3 marked for identification.)
App.69a
Q.
What is the next item that you brought with you?
A.
The next item is what I had mentioned earlier.
This is the deposit slip from the fee that I received
from Mr. Radner in regard to this case. I received
it on 1-26, 2016. I produced that in response to
your court order.
Q.
All right. Let’s mark that as our next Exhibit.
(Deposition Exhibit No. 4 marked for identification.)
Q.
When Mr. Radner first contacted you did he meet
with you or was it a telephone contact?
A.
Telephone contact.
Q.
What did you discuss with him during your initial
contact and when in proximity to the date of 1-2616 of Exhibit 4 did that conversation first take
place?
A.
I think it was a day or two prior to that 1-26.
Q.
Do you remember how long the initial phone call
lasted?
A.
No, I don’t.
Q.
Did you take notes of any of the information that
was imparted to you by Mr. Radner?
A.
No, I didn’t.
Q.
Do you recall what it was that you discussed with
Mr. Radner at that time?
A.
He said he had heard that I could help him out on
a case and wanted to know if I was interested.
Q.
All right.
A.
Gave me a brief description.
App.70a
Q.
What was the brief description of the case that he
gave you?
A.
It was an arrest that was made in Grosse Pointe
Farms. As a result of the investigation the officer
did there was no evidence in regard to chemical
tests that supported the arrest and wanted to
know if I could review the case for him.
Q.
Did you review the case?
A.
Yes, I did.
Q.
What materials from the case did you review?
A.
He provided me with the Complaint Report from
Grosse Pointe Farms Police. Chemical tests. The
chemical test rights form. Two videos; one of the
arrest process and one of the booking process.
Q.
Anything else he provided you with?
A.
That’s what I was given.
Q.
Anything else since that initial provision of these
materials that you have been provided?
A.
No.
Q.
Just so I’m clear. You have not read the testimony
given by Mr. Thibault at his deposition?
A.
No.
Q.
That was taken in this very room when we didn’t
have the lights that we have available today?
A.
No, I did not.
Q.
Likewise, I’m assuming you didn’t review Officer
Wierszewski’s deposition testimony?
A.
No, I did not.
App.71a
Q.
Do you think that either the deposition testimony
of Mr. Thibault or Mr. Wierszewski would be of
importance to you to review prior to formulating
opinions?
A.
No.
Q.
Did you review Mr. Thibault’s Answers to Interrogatories?
A.
No.
Q.
Did you review Defendant Wierszewski’s Answers
to Interrogatories?
A.
No.
Q.
Did you review the City of Grosse Pointe Farms’
Answers to Request for Production of Documents?
A.
No.
Q.
Did you review any documents produced by Mr.
Thibault?
A.
No.
Q.
I’m assuming but you tell me. Are you going to
render opinions today—
MR. DEGROOD: Off the record. (Brief recess.)
MR. DEGROOD: Back on the record. (Record repeated
by reporter.)
Q.
Are you prepared to render any opinions today
critical of the City of Grosse Pointe Farms?
A.
Yes.
Q.
Are you prepared to render any opinions today
critical of Officer Wierszewski?
App.72a
A.
I’ll render my observations and they can be interpreted as critical or not.
Q.
Excuse me?
A.
I’ll render my observations and my opinion and
they can be interpreted as critical or not.
Q.
Well, how do you interpret them? I would like to
know if you’re criticizing Officer Wierszewski?
A.
No. I think that’s a harsh word. I think I will
render my observations as to what I see.
Q.
Well, let me ask you this. Do you believe that
Officer Wierszewski at any time with his interaction with Mr. Thibault on December 5th, 2014,
violated any standard of practice that a reasonable and prudent officer in like or similar circumstances with like and similar training of Officer
Wierszewski?
A.
Yes.
Q.
What’s the next item that you brought with you?
A.
This is something I referred to, as the temperature
that day was a factor in what I reviewed. I
researched the National Weather Service.
Q.
For what city?
A.
Temperature for that day. For Detroit.
Q.
Do you know if those temps are taken at Metro
Airport?
A.
This is likely taken at DTX. That’s Detroit City
Airport.
Q.
How far was that from the stop?
App.73a
A.
This is Detroit City. I’m a pilot so I’m familiar
with this.
Q.
I understand. I read your C.V. But this case
doesn’t involve any flying, does it?
A.
I have a familiarity where City Airport is. I’m just
qualifying my capability.
Q.
How far was the City Airport from the stop?
A.
6 miles. 7 miles.
Q.
7 miles?
A.
Yeah.
Q.
What was the temperature at City Airport at
around two in the morning?
A.
It doesn’t say. It says a minimum temperature
and a maximum temperature and an average
temperature.
Q.
Of what significance was the temperatures with
respect to your formulation of opinions?
A.
Mr. Thibault said he was chilly.
Q.
Pardon me?
A.
Mr. Thibault said he was chilly. He didn’t have a
coat on. One of the observations for—one of the
pre-arrest observations that Officer Wierszewski
made was that he kept rubbing his hands and
moving his feet up and down.
Q.
Did you observe the videotape that recorded the
activities of the traffic stop at the scene where Mr.
Thibault rolled his sleeves up as he was walking
back to the police cruiser at the direction of Officer
Wierszewski?
App.74a
A.
Yes.
Q.
Do you think that may have had any role to play
in his being chilly?
A.
Potentially.
Q.
Do you agree that if indeed the evidence in this
case indicates that Mr. Thibault was in the cab of
a semi-tractor with the heater on at the time of
exiting from the cab of that tractor, that more
likely than not he was not impacted by the chilliness, if you will?
A.
I don’t know.
Q.
So that’s a gray area with respect to formulating
your opinion. Correct?
A.
I don’t know how he felt, no.
Q.
You would agree that when it comes to standard
field sobriety testing, while the individuals
learning said techniques are taught same under
ideal conditions, that when officers actually enter
the field, there are times that less than ideal conditions exist with respect to administering those
field sobriety tests. Correct?
A.
Correct. And those conditions need to be taken
into consideration as to the interpretation of their
weight.
Q.
Do you have any evidence one way or the other
that Officer Wierszewski did not take the temperature at the time of the traffic stop into consideration with respect to his performing and observing
the response to the field sobriety testing given to
Mr. Thibault?
A.
No.
App.75a
Q.
Do you have any plans today or from today forward
to review Officer Wierszewski’s deposition testimony?
A.
I have not been asked to or directed by Counsel to
do so and I don’t have plans.
Q.
Same question with respect to Mr. Thibault.
A.
I don’t plan on that either.
MR. DEGROOD: I’m going to reserve the right to
again examine Mr. Bugbee should there come a
point in time that he does review those materials
for purposes of formulating or adding to any of his
opinions.
I don’t think we marked the temperature. Let’s do
that next as No. 5.
(Deposition Exhibit No. 5 marked for identification.)
Q.
What’s the next item that you brought with you
today?
A.
Those are my written notes that I took from my
most recent review of the second NHTSA manual
that I had mentioned that are in discovery. Those
were prepared over the weekend.
Q.
May I see those, please.
MR. DEGROOD: Let’s do those.
(Deposition Exhibit No. 6 marked for identification.)
Q.
With respect to your notes of Exhibit No. 6, you
have indicated on the first page: Notes pertaining
to a phase one. On the second page, notes related
to a phase two, which continue on to page three.
And on page four a phase three, which is four,
five, six, seven. And then a validation of SFST at
App.76a
page eight and then standardized WAT on page
nine in one leg stand. It’s my understanding that
when NHTSA explains the standardized field
sobriety test that it breaks it into a three phase
study, the first being the initial observations of
vehicle operation. Correct?
A.
Correct.
Q.
And you’re not critical of Officer Wierszewski for
stopping Mr. Thibault as a result of the erratic
behavior—those my terms—of observing this semi
tractor-trailer being driven over a median island
separating the two directions of travel on Moross
Avenue, are you?
A.
No.
MR. RADNER: I want to just object that that question
had a-it was a very lengthy I think at times vague
question. To answer that with simply a yes or no I
don’t think is fair and appropriate.
Q.
Let me ask you this question as well. You don’t
believe that Mr. Thibault’s constitutional rights
were violated as a result of this traffic stop by
Officer Wierszewski, do you?
MR. RADNER: I’m going to object to that as well
that I don’t believe he’s qualified to answer that
question.
MR. DEGROOD: I think for many years enforcing the
laws, including the Constitution of the State of
Michigan, as well as the Constitution of the United
States, he may be capable of answering that question. If at a subsequent point in time you wish to
file a motion to strike his opinion concerning that,
that is obviously your prerogative.
App.77a
Q.
Do you remember the question, Mr. Bugbee?
A.
Yes. I don’t know.
Q.
You don’t know?
A.
I don’t know.
Q.
Why don’t you know?
A.
As Counsel had stated, I’m not qualified to make
that.
Q.
Would I be correct that you’re not qualified to
render any opinions whatsoever concerning the
constitutionality of any of the activities that were
performed by Officer Wierszewski with respect to
his interaction with Mr. Alan Thibault on December 5th, 2014?
A.
I don’t know how to answer that question either.
Q.
What do you mean you don’t know how to answer
it?
A.
It would be premature for me to make any kind of
a determination as to the constitutionality of his
actions because I’m simply not trained to do that.
Q.
So is there some type of training you believe could
fall upon your lap, if you will, such that you could
render such an opinion?
A.
Probably law school.
Q.
But short of that you’re not comfortable in
answering questions concerning constitutional
violations in this lawsuit. Correct?
A.
Correct.
Q.
Now were there any phase one observations in
your opinion made by Officer Wierszewski?
App.78a
A.
Yes.
Q.
Did he fail in any manner whatsoever, in your
opinion, to complete under the circumstances that
were existing at the time of his observation and
traffic stop with respect to the observations of
vehicle operation?
A.
Can I refer to the copy of my notes? I have my
original.
Q.
You have your originals in there?
A.
Yes.
MR. RADNER: These notes have not yet been marked,
right?
MR. DEGROOD: Yes. They’re No. 6.
MR. RADNER: I thought he was referring to the big
stack of notes.
A.
I’m going to have to refer to the big stack of notes.
MR. DEGROOD: Let’s mark the big stack of notes.
We’ll mark that as Exhibit No. 7.
(Deposition Exhibit No. 7
marked for identification.)
Q.
I’m going to hand you what has been marked as
No. 7. What is that?
A.
This is my notes as to my observations of the
videotape, videotapes that were provided to me in
regard to the traffic stop and arrest process, as
well as the booking process.
Q.
Okay.
A.
Prior to Mr. Thibault being taken out of the police
department to get a blood test.
App.79a
Q.
With respect to Exhibit No. 6 that we previously
marked, in my review of those notes and given
your prior testimony, am I correct that the information contained in the nine pages of Exhibit 6 are
statements that you retrieved from the NHTSA
manual?
A.
Correct.
Q.
I notice that you did not write down any pages
with respect to where the quotations from the
NHTSA manual came from?
A.
No.
Q.
Any reason why not?
A.
I thought those were going to be used to just
refresh my memory as I testified here. I didn’t
believe they were going to be used for reference
for anybody else.
Q.
Did you actually procure the NHTSA standard
manual in printed form or only in electronic
format?
A.
Electronic format.
Q.
On your version of the electronic format, did you
highlight any information contained within that
manual?
A.
No. I made notes of the pertinent.
Q.
So if we were to look at the master manual we
won’t find any underscores, any highlighted, none
of that?
A.
No.
App.80a
Q.
Because you took what you felt was important
from the manual and reproduced that in writing,
which we have marked as Exhibit 6?
A.
Correct.
Q.
Now let me see. I’m going to have Exhibit 7. You
have the original?
A.
I have the original.
Q.
Now I’m going to go back. You may use your
notes, obviously. My question to you is: Are you in
any fashion whatsoever going to render any opinion that Officer Wierszewski failed to exercise a
phase one observation with respect to his stop of
Mr. Thibault on 12-5-14?
A.
No. But I don’t think that he observed much
driving. He saw it jumped the curb and the vehicle
was stationary when he rolled up on it.
Q.
He had opportunity to drive down and adjacent to
the vehicle and then to come up behind it. Correct?
A.
Correct.
Q.
You didn’t review his deposition testimony to
learn if indeed there were any other observations
that he made that may not have been captured on
that video. Correct?
A.
Correct.
Q.
So is that a criticism, the fact that he only saw the
vehicle move for the period that it did move and
strike the island separating the lanes of travel?
A.
It’s merely an observation.
App.81a
Q.
Again, if you were an officer investigating the circumstances, you take the facts as they come your
way. Correct?
A.
I myself would have wanted to see more driving
prior to making that determination.
Q.
Well, are you aware of the fact that Mr. Thibault
has testified in this matter that as soon as he saw
the police officers he stopped his vehicle,
believing that he would be pulled over?
A.
No.
Q.
If that were the case then how in God’s green
earth could any officer, including Officer Wierszewski, have seen more driving?
Are you suggesting he should have gone to the
driver of this semi tractor-trailer, after observing
it jump the curb, if you will, and ask him to drive
a quarter mile so I can watch your activity behind
the wheel?
MR. RADNER:I’m going to object. It’s a compound
question. It’s calls for speculation.
You can answer, if you can.
Q.
Go ahead.
A.
I would like you to simplify the question because
I got lost. I wanted to answer the first part of it
and I got lost.
Q.
Are you suggesting that to comply with phase one
observations that Officer Wierszewski should have
directed this driver, Mr. Thibault, to continue
driving the vehicle such that he, Officer Wierszewski, could have additional observational infor-
App.82a
mation regarding Mr. Thibault’s operation of the
truck?
A.
No.
Q.
Do you know how many officers observed Mr.
Thibault’s operation of the semi tractor-trailer on
12-5-14?
A.
From the video it appeared to be Officer Wierszewski and Officer Cashion in two separate patrol
cars.
Q.
So that would be two?
A.
Yes.
Q.
Now any other statements you would like to make
with respect to a phase one observation, in addition to you would have liked to have seen more
driving under these circumstances?
A.
Yes.
Q.
What would that be?
A.
I believe in the officer’s report he indicated that
the truck was stationary at the intersection with
its four way flashers flashing. However, when I
reviewed the video it was clear that from the
system that they have that, the four way or—
excuse me—the patrol car lights were activated
at 1:48 and 21 seconds a.m., which initiates the
traffic stop. The semi four ways didn’t become
active for another seven seconds, which tells me
that the driver of the vehicle was responding to
the signal from the officer to pull over or he was
being stopped.
Q.
All right.
App.83a
A.
That tells me a lot about his capability to negotiate what is going on around him and to change
his task from driving the vehicle to now complying with the officer’s request for him to pull over
basically.
Q.
In your review of the video of the stop did you at
any point in time see the semi tractor-trailer
moving?
A.
I saw it stationary at the corner of Moross and
Mack with the left turn signal. Looked like he was
waiting for the light to turn. So he was operating
the vehicle in the left lane of traffic.
Q.
My question was: Did you at any time see movement of the tractor-trailer on the video: Yes or no?
A.
No, I did not.
Q.
Any other criticisms of Officer Wierszewski with
respect to his phase one observations?
A.
He had said there was a—when Officer Wierszewski approached the driver or talked to him at
some point, he said that his trailer clearance lights
were out. But it appeared that from the video that
the clearance lights were operative.
Q.
Were you able to see—well, strike that.
First off, as a Michigan State Police Officer, did
you ever receive any specialized training in
commercial vehicle inspections?
A.
Yes.
Q.
Were you ever involved in the Motor Carrier Division of the Michigan State Police?
App.84a
A.
No. But we were trained to motor carrier standards
in the Basic Academy.
Q.
You would agree that the video that you saw did
not provide any observational abilities of any of
the clearance lights on the front of that trailer.
Correct?
A.
Correct.
Q.
So you don’t know, not having read Officer
Wierszewski’s deposition, which of the clearance
lights that he was referring to. Correct?
A.
Correct.
Q.
So the fact that you saw operational clearing
lights on the rear of this trailer does not rule out
the fact that lights on the front of the trailer were
inoperable. Correct?
A.
Correct. I was basing it on my observation.
Q.
So you wouldn’t be critical of Officer Wierszewski
with respect to his observation of a clearance
lamp not working, if indeed it were his testimony
it was on the front of the trailer. Correct?
A.
Correct.
Q.
What about the license plate lamp, was that
operable or couldn’t you tell?
A.
Couldn’t tell.
Q.
Anything else that you are critical of Officer
Wierszewski with respect to what he had to work
with for a phase one observation of this scenario
as per the NHTSA standard field sobriety testing
training?
App.85a
A.
I’m not critical of his stop but I don’t think it provided indications of intoxicated driving.
Q.
What did it provide?
A.
It provided indication of a civil infraction, perhaps improper lane use. That was it.
Q.
Well, do you have any basis upon which to conclude
that at any time before Officer Wierszewski moved
on to a phase two or phase three observation, had
formulated any opinion with respect to Mr.
Thibault operating under the influence of alcohol
or drugs?
A.
I don’t know how he formed his opinion.
Q.
It would be important to know what of a phase
one, phase two and/or phase three observation an
officer utilizes in determining to arrest someone for
OWI. Correct?
A.
Could you rephrase that.
MR. DEGROOD: Could you read that back to him,
please.
(Record repeated.)
Q.
That would be important?
MR. RADNER: I’m just going to object. Important for
what.
Q.
Important if possible, correct?
A.
If possible.
Q.
What do you mean by that?
A.
It’s kind of a vague question.
Q.
Anything else that you’re critical of with respect
to the phase one portion of this stop?
App.86a
A.
No.
Q.
What is the phase two portion of the NHTSA
training for standard field sobriety testing?
A.
Contact with the driver.
Q.
Did Officer Wierszewski have any involvement in
personal contact with Mr. Thibault?
A.
Yes.
Q.
Are you at any point in time offering any opinions
that Officer Wierszewski failed to complete a
phase two portion of his examination of Mr.
Thibault?
A.
I think he completed the examination.
Q.
Did he complete the phase two examination in
keeping with the standards expected of him as a
reasonable and prudent public safety officer under
the circumstances as they existed on December
5th, 2014?
A.
Yes.
Q.
What is the phase three portion of the NHTSA
training?
A.
It’s the standard field sobriety tests.
Q.
How many standard field sobriety tests are there
that are recognized within the battery of available standard field sobriety tests?
A.
There are three scientifically validated tests.
Q.
Those are?
A.
The horizontal gaze nystagmus. The walk and
turn and the one leg stand.
App.87a
Q.
Would I be correct that as a field training officer,
when you were so engaged and employed with the
Michigan State Police, that you would have
instructed those officers training in the field with
you to additional field sobriety testing over and
above those three. Yes or no?
A.
Yes.
Q.
What additional field sobriety testing, over and
above the three that you have described, would
you instruct your fellow officers that were within
your charge as an FTO?
A.
There are other non validated tests which can be
used.
Q.
Which ones would you have trained individuals
in? And by the way, when you say: Validated
versus non validated, what do you mean by that?
A.
Well, through NHTSA standards there are only
three scientifically validated tests which would be
used to make the arrest decision. Those are the
three aforementioned tests that I said.
Q.
When you say “validated” how are they validated,
if you know?
A.
They were scientifically validated through studies
in the eighties.
Q.
Were you involved in any of those studies?
A.
No.
Q.
Have you reviewed the results of any of those
studies?
A.
No.
App.88a
Q.
Your familiarity with the alleged validation is
basically through the statements that NHTSA
makes in its manuals. Correct?
A.
Through my training and the alcohol enforcement,
the standard field sobriety testing courses I have
taken such that those were all covered. There
were segments that talked about the scientific
studies that were done.
Q.
Did you at any point in time in your career as a
Michigan State Police Officer, ever arrest a subject
that you believed was operating under the influence but at or near the time of arrest had a
negative PBT that you subsequently had blood
samples drawn that ultimately came back negative
for alcohol and negative for drugs even though
you had arrested the individual for OWI?
A.
Not that I recall.
Q.
But you haven’t gone back and looked at all of
your stops, have you?
A.
No.
Q.
You would agree that indeed an officer may have
probable cause to arrest someone for OWI who has
blown negative or zero results on a PBT. Correct?
A.
Correct.
Q.
You likewise understand that an officer may have
probable cause to arrest someone for OWI in
advance of the results of blood tests for alcohol
becoming available for that officer. Correct?
A.
Yes.
App.89a
Q.
In fact, when you were pulling people over as a
Michigan State Police Officer or Trooper, were
there times that you needed to have blood drawn?
A.
Yes.
Q.
It’s my understanding when that occurred the
blood sample was not immediately analyzed and
more likely than not was not analyzed even within
48 to 72 hours of the arrest. Correct?
A.
Correct.
Q.
Your blood samples, I’m assuming, like the
sample drawn on Mr. Thibault would go to the
Michigan State Police Crime Lab. Correct?
A.
Yes.
Q.
Likewise, would you agree that an officer could
make an arrest of somebody for OWI with probable
cause, even though a blood sample for drugs that
had been removed had not yet had the findings
returned?
A.
Correct.
Q.
Did you review any of the laboratory reports
generated in this case with respect to blood
samples removed from Mr. Thibault?
A.
Yes.
Q.
Which ones?
A.
They were provided to me as part of the Complaint
Report that I talked about from the—
Q.
Could I see what you’re referring to as the Complaint Report?
App.90a
A.
This is listed as Grosse Pointe Farms Public
Safety Complaint Report No. 140005021. Happened
12-5 of 2014, by Officer Wierszewski.
Q.
Did you make a copy of that to give to me as a
result of the notice to produce?
A.
I believe that’s on the disc that I gave you.
Q.
You just put together that report in its entirety
from your original that I might quickly review.
A.
Pardon me?
Q.
May I see what you’re calling the compendium of
the report. You just put it together.
MR. DEGROOD: Solomon, he can do it.
MR. RADNER: I’m just looking at what he’s doing.
MR. DEGROOD: Slipping the Joker in the deck, are
you?
MR. RADNER: The record should be very clear that I
have not touched the documents. I’m merely
looking over his shoulder.
A.
Would you like me to state for the record what is
in here?
Q.
If you could just hand it to me when you have got
it all put together. I’ll even let you borrow a
paperclip if you would like.
A.
Okay. I’m handing to you what was given to me
by Counsel and stated to be the Police Report.
Q.
Thank you.
A.
Containing the aforementioned or afore requested—if that’s a word—chemical test results.
App.91a
MR. DEGROOD: Let’s mark this as an Exhibit and
count the pages, please.
(Deposition Exhibit No. 8
marked for identification.)
Q.
I’m going to show you what we have marked as
Exhibit 8 to your deposition. There are 17 pages.
Specifically I want to go through the laboratory
results.
A.
Yes.
Q.
First off, when was this report authored to the
best of your knowledge?
A.
Well, it says a report date and time 12-5 of ‘14 at
2:19 p.m. That doesn’t tell me when it was authored though.
Q.
All right.
A.
Excuse me. Stop.
Q.
Go ahead.
A.
Created on-now this date here on the bottom of
page two of four states it was created on 12-19,
2014 at 2:09 p.m.
Q.
Do you know if that’s just the time that the copy
that we have marked was made at the time as
opposed to the actual creation of same?
A.
I don’t know.
Q.
We do know from your review of Exhibit No. 8,
that the blood samples were drawn on 12-5, 2014.
Correct?
A.
Yes. Well, that would not be on this sheet. It
would be on another sheet.
App.92a
Q.
It clearly would be on—
A.
That would be on this one. This is the one the
officer would have to fill out and that says 12-5 of
‘14.
Q.
The date of collection, right?
A.
Right.
Q.
Now there are two pages in here.
A.
Yes.
Q.
That are Specimen Result Certificate. Attention:
Kacey Hothem.
A.
Uh-huh.
Q.
You believe these are part of the actual Grosse
Pointe Farms Police Report?
A.
No. These were provided to me as well as the
report by Counsel.
Q.
These were what? What are these the labs from?
A.
Those look like a private test that was sought by
Mr. Thibault.
Q.
You didn’t read his deposition though, correct?
A.
No, I didn’t.
Q.
Now did you ever receive the laboratory report
from the Michigan State Police relative to an
alcohol study performed by the Department of
State Police Forensic Science?
A.
That’s not in this information, no.
Q.
The lab report that clearly is a copy of the State
of Michigan, Department of State Police is related
App.93a
to a blood sample that relates to whether or not
drugs were included. Correct?
A.
Well, I don’t know what they tested for but they
say what the results are.
Q.
And they show that they didn’t find the drugs
that are specifically identified in the document.
Correct?
A.
It says item number one not detected and it shows
a whole list of drugs that were not detected.
Q.
Correct. Now you’re not a toxicologist, correct?
A.
No, I am not.
Q.
I’m assuming you have already told me you didn’t
have any training as a drug recognition expert.
Correct?
A.
Correct.
Q.
Would I also be correct that you have received no
training with respect to what particular designer
drugs may have been utilized by the public in
December of 2014. Is that fair enough?
A.
That’s not a yes or a no question. I received
extensive training in basic and advanced narcotics
with the Michigan State Police as to the existence
and effects of many types of drugs.
Q.
In that training you’re aware of the fact that some
of these—I’ll use the term designer drugs—
metabolize out of an individual’s system even
before a blood sample can be retrieved, correct?
A.
I don’t know.
Q.
That’s beyond your expertise?
App.94a
A.
I would have to review my past training materials
and such to prepare for that question. I don’t
know which ones would, to render a definitive
answer.
Q.
I’m just asking, not specifically but in a general
sense, you are aware of the fact that some drugs
can metabolize out of someone’s system before a
blood sample is even retrieved?
A.
No. I’m not aware of that.
Q.
Are you aware of the fact that some drugs can
metabolize out of a blood sample that is merely
sitting in a vial waiting to be tested?
A.
No.
Q
That’s beyond your training?
A.
No. It may have been—it was certainly within my
training I’m willing to say but as far as if I
remember that part of it, no. I don’t remember
that.
Q.
So as you sit here today you’re not rendering any
opinions on that topic?
A.
Correct.
Q.
Now let’s go back to our face three, which is what,
pre-arrest training and screening?
A.
Correct.
Q.
Now with respect to the phase three pre-arrest
screening of the NHTSA training, are you in any
way critical of Officer Wierszewski’s performance
of any pre-arrest screening?
A.
I don’t believe they provided probable cause to
make the arrest.
App.95a
Q.
So it is your opinion that in your judgment what
you saw with respect to these three scientifically
discussed and verified standardized field sobriety
tests, in your opinion it didn’t provide probable
cause, correct?
MR. RADNER: I’m just going to object to that question
that there was a lot more in the video than just
those three scientific tests. But if you understood
the question and you can answer it with a yes or
a no, please feel free.
A.
Can you ask the question again, please.
Q.
Sure. First off, what field sobriety tests in your
opinion were performed if any that provided
probable cause of operation OWI by Mr. Thibault
on the day in question?
A.
In my observation it’s my opinion none of the
tests—which include the three standardized tests
as well as all the additional tests that he gave
him—rose to the level of probable cause to make
an arrest.
Q.
You weren’t there that evening, correct?
A.
No. This is based on an observation of the video.
Yes.
Q.
Did you see all of the testing that was performed
upon Mr. Thibault at the station that may not
have been captured on any video? Yes or no?
A.
No.
Q.
Is there any aspect of the three standardized tests
that you believe were not appropriately administered by Mr. Wierszewski?
A.
Yes.
App.96a
Q.
Let’s start with the walk and turn. Was that properly administered?
A.
It was properly administered.
Q.
It was?
A.
Yes.
Q.
On how many occasions?
A.
Two that I saw.
Q.
Where were they, the ones that you saw, where
were they occurring?
A.
There were two that were administered on the
road.
Q.
At the stop?
A.
Yes.
Q.
Do you believe either of those—let’s talk about
the first one. The first one that was administered
was witnessed, to your knowledge, by how many
officers of Grosse Pointe Farms?
A.
Two.
Q.
Which two?
A.
Based on just what was going on in the video I
think it was Officer Wierszewski and Officer
Cashion. She was continually referred to as
Veronica. So I presume that’s her.
Q.
By the way, you did review the drug evaluation
form that was completed by Officer Wierszewski,
correct?
A.
Yes.
App.97a
Q.
Am I correct that at no time during your professional activities did you ever complete those types
of tests and fill out that type of a form?
A.
We filled out those types of a form.
Q.
Those exact forms?
A.
Not that exact form. That type of form that documented our observations in the standard field
sobriety testing.
Q.
Did you ever take blood pressure of subjects? Yes
or no.
A.
No.
Q.
Did you ever take temperatures of subjects? Yes
or no?
A.
No.
Q.
Did you ever complete any eye examinations in
addition to the vertical or horizontal gaze nystagmus test: Yes or no?
A.
Yes.
Q.
Which ones did you complete besides that?
A.
Pupil size.
Q.
What other tests are recorded on the DRE form
completed by Officer Wierszewski—and, please,
you may refer to it—that you would not have
completed in your analysis of a subject that you
were evaluating for possible arrests of OWI?
A.
We never did pulse and time.
Q.
All right?
A.
We never did convergence. Never did the internal
clock test. The forms that we filled out didn’t have
App.98a
a section for nasal area, however, had that observation been made it would have been put in a
report. Rebound dilation was a part of the horizontal gaze nystagmus training examination. Reaction to light was not.
Forms I used didn’t have a diagram to mark their
arms. This one has a right arm and a left arm. It
didn’t have it. We didn’t take their blood pressure.
We didn’t do their temperature. If things like
muscle tone were pronounced enough to notice,
we would have documented that in a narrative.
That’s the only examinations that are on this
form, that were not examined in the past that I
recall.
Q.
Okay. Were you trained to observe and make conclusions with respect to whether or not a subject
was under the effects of a central nervous system
stimulant?
A.
Yes. The training I went through covered that.
Q.
What stimulants would you look for and what
were the—strike that.
What were the CNS symptoms that would lead you
to believe that a subject was under the influence
of a stimulant?
A.
Well first, presence of drugs or drug paraphernalia
during the phase two. In general, if they were to
pass the three validated tests, that being the
horizontal gaze nystagmus, the walk and turn and
the one leg stand. If their pupils were an uneven
size and they also had vertical gaze nystagmus
that may indicate some drug use.
Q.
Stimulant versus a depressant?
App.99a
A.
What about it?
Q.
Well, I’m asking you what you look for to determine
if someone is potentially under the influence of a
CNS stimulant versus a CNS depressant, if you
know?
A.
Within the scope of my background and training,
having not gone through the drug recognition, we
would have recognized a potential presence of
some drugs and moved on from there.
Q.
All right. The vertical gaze nystagmus is not one
of the scientifically verified tests?
A.
No, it’s not.
Q.
Now did you record in your notes the time on the
tape that you believe depict Mr. Thibault’s efforts
at completing the first walk and turn?
A.
Yes.
Q.
On what page of your notes is this?
A.
Page four.
Q.
Page four?
A.
Yes.
Q.
That would be what we have marked as Exhibit
7, correct?
A.
Yes.
Q.
The four is circled in the upper right hand corner.
Correct?
A.
Yes.
Q.
What was the time on the tape that you have
indicated the first walk and turn was attempted
by the plaintiff?
App.100a
A.
1:53 and 25 seconds a.m. That was when the
instructions were began.
Q.
I think you told me that the administration of
that test by Officer Wierszewski was proper, correct?
A.
Yes.
Q.
Did you see any indication on your review of Mr.
Thibault’s first walk and turn that indicated he
was unsteady and using his arms for balance?
A.
Yes.
Q.
Is that an indication of possible influence by
alcohol or drugs with respect to the walk and
turn?
A.
Yes.
Q.
Did you see any evidence, physical evidence,
during the first Thibault walk and turn that we’re
talking about that suggested to you that Mr.
Thibault was under the influence of alcohol or
drugs?
A.
No.
Q.
None?
A.
None. Not in my opinion.
Q.
You would agree that other individuals could
clearly differ with your opinion, correct?
MR. RADNER: Objection. Speculation.
Q.
Go ahead.
A.
Others could.
Q.
Have you shown this video footage that we’re discussing to any other actively employed officers,
App.101a
either Michigan State Police or other certified law
enforcement officers, and requested their opinion
as to whether it is demonstrative or not of someone impaired?
A.
No.
Q.
What did you see during this first walk and turn
that lead you to believe and conclude no probable
cause existed to suspect impaired individual?
A.
Well, during the instruction phase Mr. Thibault
was very steady. He maintained the position that
the officer asked him to while he was giving
instructions. Okay. As he performed the test,
though he did use his arm to balance, it didn’t
appear as though he stepped off the line.
He did the proper amount of steps, which indicated
that he had understood the questions, recalled them
correctly and executed it properly. He did a good
turn without losing control there and walked back.
So in all, the only thing I saw him do which may
raise some suspicion was he raised his arms
above six inches to maintain his balance.
Q.
Did he maintain an upright position of his upper
trunk as he completed the walk and turn we are
discussing?
A.
At one point it seems as though he lost his
balance but did not step off the line.
Q.
Were you able to see his feet in the video that was
provided to you: Yes or no?
A.
No.
App.102a
Q.
All right. So when he appeared to lose his balance
you cannot objectively state that he did or did not
come off the line. True?
A.
It appeared as though he stayed on the line to me.
Q.
You cannot objectively state—because you were
not present—that he did or did not come off the
line. Correct?
A.
Correct.
MR. RADNER: Asked and answered.
Q.
You would agree that Officer Wierszewski and
Officer Cashion would be in a better vantage point
being at the scene to determine if indeed at any
time during the first walk and turn Mr. Thibault
came off the line. True?
A.
True.
Q.
Any other comments that you have with respect
to his first walk and turn?
A.
Yes.
Q.
What would that be?
A.
I would have evaluated that as a pass or a good
test. I would not have felt that was a fail based on
my observations.
Q.
All right. Anything else that you wish to comment
on that first walk and turn?
A.
No.
Q.
Now—do you need a break?
A.
Bathroom.
MR. DEGROOD: Let’s go off the record. We’ll take a
break.
App.103a
(Brief recess.)
Q.
How many one leg stands did you observe on the
videos that you watched?
A.
I observed one.
Q.
In your notes do you have the notation as to the
time on the tape it occurred?
A.
Yes. 1:55 and 06 seconds a.m.
Q.
It’s on page four as well?
A.
Four, yes.
Q.
Did you believe that you saw anything during the
performance of that test that lead you to believe
it was administered inappropriately?
A.
No.
Q.
Did you find anything during that test that lead
you to believe possibly probable cause existed
that this individual was impaired?
A.
No.
Q.
What during this test lead you to believe that this
individual was not impaired?
A.
Well, during the two phases of the test, the
instruction phase and the performance phase.
During the instruction phase Mr. Thibault was
instructed to stand in a certain position. Take
that position until instructed to perform the test.
He did so as instructed. I think he had to move to
do it from his back to the camera to side to the
camera and he was—he followed instructions
well.
App.104a
There was no confusion. When he was standing in
that position listening to the instructions he
maintained the position. No swaying. No difficulty.
He paid attention to the instructions. When told
to do the test—let me correct that.
There was one thing that Officer Wierszewski did
do. He stopped observing Mr. Thibault for a moment. He returned to the patrol car. Then came
back. So his observation stopped for a moment. At
1:55 and 53 seconds he instructed him to move to
a different position.
He resumed another position which was—could be
more favorable to the camera. He followed the
instructions well. There was no swaying and looked
like he had good balance as he listened to the
instructions.
Q.
Okay.
A.
At 1:56 and 59 seconds, Officer Wierszewski instructed Mr. Thibault to start the test. Instructed him to
lift his foot higher than six inches at one point it
appeared. He left him in that position for what
was a 35 count. That was Mr. Thibault counting,
which according to the tape was actually 24
seconds. At 1:56 and 35 seconds he instructed Mr.
Thibault to put his foot down.
My observations was that the test was done
properly. He had slight raising of the arms for
balance. Proper count. And the tempo was good.
There was no slurred speech as he was speaking
and counting out. He had no loss of balance. He
was able to complete the test without putting his
foot to the ground.
App.105a
Q.
Anything else with respect to the one leg stand?
A.
Like I said, at one point it appears as though he
instructed him to lift his leg higher than six
inches. He kept telling him: Higher, higher, higher,
which put Mr. Thibault in a difficult position to
maintain his balance.
Q.
Would you agree that when he was instructed,
Mr. Thibault that is, to raise his foot higher, the
camera did not allow the viewer of the video to
actually see how high the foot was?
A.
Correct. But the position of the knee and the
lower leg appeared though it was higher than the
six inches.
Q.
Do you know how tall he was?
A.
No.
Q.
Would you agree that Officer Wierszewski and
Officer Cashion would be in a better vantage point
to determine if indeed he was requested to lift his
knee only six inches and upon failing to do so, was
instructed to attempt to return to six inches?
A.
They would be in a better vantage point to observe
that.
Q.
In addition to the three standardized field
sobriety tests that you have identified, what additional sobriety, field sobriety tests were administered?
A.
There were many.
MR. RADNER: Are we still on the one leg stand or are
we moving on?
App.106a
MR. DEGROOD: We’re talking about what other tests
were administered over and above the three
standardized field sobriety tests.
A.
It appears as though there were four additional
tests given. Some of them were given more than
once.
Q.
Which were they?
A.
The alphabet was given twice. Or actually he
started the instructions for the alphabet. Officer
Wierszewski started the instructions for the
alphabet and then he had him take the numbers
test and then he returned to the alphabet again
and had him do the alphabet. So it wasn’t performed twice but it was broken because it was
mixed in with the numbers test.
Q.
Did he successfully complete the numbers test?
A.
He successfully completed the numbers test.
Q.
That test is the test where he was asked to pick a
number between 19 and 21?
A.
Well, my observations of that were he followed
the instructions well. There was no confusion as
to what was being asked. There was no slurred
speech. He gave a proper answer.
Q.
Did he successfully complete the alphabet test?
A.
It appears as though he was confused about the—
what was being asked of him. But it was broken
down into two sections between the—at 1:52 and
21 seconds, Officer Wierszewski asked him if he
knows his alphabet from A to Z. He responded
yes.
App.107a
Q.
Where was he standing when that question was
asked of him?
A.
He was standing in front of the patrol car right in
front of the camera. At that point he was asked to
turn and face the truck.
Q.
Do you recall if he was asked if he knew the
alphabet when he was standing outside the cab to
the semi-truck?
A.
That’s what I’m talking about right now. He
was—
Q.
So he was not directly in front of the hood, if you
will, of Officer Wierszewski’s car when he was
asked if he knew the alphabet. Correct?
A.
He was through—at this particular test this time,
he was asked at 1:52 and 21. He was standing in
front of the patrol car with his face to the patrol
car. After he was asked if he knew the alphabet
he was asked to turn and face the truck. I notice
he made the turn, 180-degree turn, steady. Followed instructions well. No swaying. No staggering.
So that’s what I observed.
Q.
All right. Do you remember what he was subsequently instructed with respect to the alphabet
test?
A.
Yes. At 1:52 and 42 seconds, after having successfully completed the numbers test, Officer Wierszewski then returned to the alphabet test and
told him to recite the alphabet, starting with D
and ending with O.
Q.
Did he start with D or start with A?
App.108a
A.
He mumbled A through C to get him to D. He
recited D. Went all the way to V and then returned
to O.
Q.
So that would be interpreted by some individuals
as a failed test. True?
A.
No, because there’s other observations that need
to be taken into account.
Q.
What other observations?
A.
Although he did the test improperly, he did it
with clear speech. He wasn’t confused. Although
he did it wrong, he wasn’t necessarily confused.
The letters were said in sequence or the letters
were said in sequence. He maintained a steady
position of balance throughout the test.
I interpreted as though he was confused of what
he was asked because it was never said, quote,
without saying any other letters. He just said: Go
from D to O. He didn’t say: Don’t say any other
letters.
Q.
All right. Any other tests that are field sobriety
tests other than the three standardized field
sobriety tests, of which we have already spoken
about two?
A.
Finger count. He did the finger count at 1:52 and
59 seconds.
Q.
Anything else?
A.
He, at 1:56 and 38 seconds, he did a modified
Romberg.
MR. RADNER: Can you spell that please?
THE WITNESS: R-o-m-b-u-r-g, I believe.
App.109a
Q.
What is the modified Romberg?
A.
Well, that was instructed to be: Close his eyes.
Hold his head back. And I don’t believe that was
instructed properly based on the NHTSA guidance.
But he was instructed to hold his head back. Close
his eyes and let him know when 30 seconds were
over.
Q.
What was improper with respect to that instruction?
A.
It doesn’t instruct that the driver or suspect is to
count in their head. It just says: Let me know
when you think 30 seconds is over at the end of
the test.
Q.
Isn’t that implied, if you are going to let me know
when 30 seconds are over that you’re counting in
your head?
A.
But that’s not part of the test to ask how they
counted. That seemed to be important to Officer
Wierszewski, the manner in which he counted.
That’s not even instructed in the NHTSA manual.
So it just wasn’t in compliance with the way they
instructed.
Q.
With the way that you instructed, correct?
A.
The way it said in the manual.
Q.
Well, the manual covered non-verifiable field
sobriety testing and if so what manual was that?
A.
That was the aforementioned manual that I had
spoken of, being the Advanced Road Side impaired
Driving Enforcement Manual.
Q.
Now that you had the hard copy there what was
the edition of that again?
App.110a
A.
That was the R5 slash 13 edition.
Q.
Okay.
A.
As stated earlier.
Q.
Any other field sobriety tests that were performed
that we haven’t talked about, knowing full well
that there is a second walk and turn and we have
not yet talked about the HGN?
A.
No.
Q.
Was the HGN test performed?
A.
Yes.
Q.
Do your notes reflect at what time on the tape
that you were provided you saw the HGN test performed?
A.
1:58 and five seconds a.m.
Q.
Was it administered properly?
A.
I don’t believe so.
Q.
In addition to the belief that it was not properly
administered, any other criticisms of the manner
in which that test was conducted?
A.
No.
Q.
With respect to the administration of that test,
what is it that you believe was improperly
completed or completed?
A.
Well, it appeared as though it was mixed with
another test that is called the lack of convergence
test. So there was—
Q.
What page are you reading from Exhibit 7?
A.
Five.
App.111a
Q.
Page five. Thank you. Continue, please.
A.
It appeared that the HGN test, the horizontal
gaze nystagmus, was conducted in conjunction with
the lack of convergence test, which are two
different tests. They were both mixed into one
test, which I believe complicates the horizontal
gaze nystagmus in that the NHTSA guidance
warns of fatiguing the eyes prior to getting or
prior to getting a good test. Eye fatigue is a factor
and a negative HGN test for the NHTSA guidance.
Q.
Was there a negative HGN test?
A.
I don’t believe there was.
Q.
What do you believe—again, let me just see that
I’m clear. The video that you were provided with
when the HGN test, and in your opinion the comingled convergence test occurred, you could not
see the face or eyes of the subject. True?
A.
True.
Q.
Mr. Thibault’s back was facing the camera. Correct?
A.
Correct.
Q.
So neither you nor I or someone who only has
benefit of looking at this tape, we cannot objectively
state what the actual response Mr. Thibault had
to that test or in your opinion tests pleural. True?
A.
True.
Q.
Were the results of the HGN test recorded anywhere in the records completed by Officer Wierszewski?
A.
They were captured on the videotape.
App.112a
Q.
Are they identified anywhere in his written report?
A.
No.
Q.
So there’s nothing mentioned in the DRE report
about that?
A.
He says he failed the HGN test but I don’t know
which one it was. He gave it to him three times.
Q.
So that test was provided in your opinion to the
subject on three occasions. Correct?
A.
Correct.
Q.
Were any of those occasions when the subject was
at the station after being removed from the stop?
A.
Yes.
Q.
Do you know how much time elapsed between
those tests?
A.
Yes.
Q.
How much time elapsed—well, strike that. How
many HGN’s did you see administered at the scene
of the stop?
A.
One.
Q.
How many did you see administered at the station?
A.
At least one. But I don’t know what happened
when they went off camera. Mr. Thibault was
taken off camera for a few tests I believe. The
audio sounded like they were doing sobriety tests
off camera.
Q.
Did you see the performance of any HGN tests
captured on the video reflecting the activities at
the station?
A.
Could you repeat that?
App.113a
Q.
Sure. Did you see, when you reviewed the station
videotapes—
A.
Oh.
Q.
—the administration of any HGN tests and if so,
at what time on the video footage did you see such
tests administered?
A.
At 12—excuse me. At 2:50 and 28 seconds the
HGN was given, again, in the booking room. it’s
the second time it’s given.
Q.
Was it given by Officer Wierszewski?
A.
Yes.
Q.
How much time elapsed between the one at the
traffic stop and this one in the booking; over an
hour?
A.
The one at the traffic stop was at 1:58. The one in
the booking room was at 2:50. Less than an hour.
Q.
So about 50 minutes between the two?
A.
Roughly. 52 minutes.
Q.
You’re not suggesting that the HGN performed at
the traffic stop fatigued Mr. Thibault’s eyes with
respect to the second HGN performed 50 minutes
later, are you?
A.
No. I’m basing my conclusion merely on the
officer’s statement.
Q.
What is it of the officer’s statement that you are
basing your conclusion on?
A.
At 2:10 and 48 seconds another officer pulls up.
Potentially a senior officer or supervisor because
Mr. Officer Wierszewski felt the need to report to
App.114a
him and he said, quote: He hit the curb. He can’t
do some—he can’t do sobriety tests. He doesn’t
have HGN. That’s what I base the results on, his
statement: He doesn’t have HGN to his counterpart.
Q.
What does that mean to you?
A.
That means that he didn’t test positive for
horizontal gaze nystagmus.
Q.
So in your opinion that statement would validate
that there was no jerking eye movement during
the performance of that test in the horizontal
plane. Correct?
A.
I just take it on its face that it was a negative test
because the officer said so.
Q.
All right. Now anything else about the HGN? I
think you indicated you thought that it was
improperly provided. Have we covered all of your
criticisms of the administration of that test by
Officer Wierszewski that you believe were
inappropriate?
A.
Those are my observations, however, I did observe
that during the test Mr.—
Q.
What page are you reading from your notes;
upper right corner.
A.
Yes. I know where the page number is. I’m just
reading.
Q.
Okay.
A.
I’m looking at page number five.
Q.
Okay. What on that page were you about to tell
me about during the test?
App.115a
A.
That is all.
Q.
That was it?
A.
That’s all.
Q.
Any criticisms?
A.
I have no other observations.
Q.
I’m looking at the bottom of five and it says: 33.
I’m assuming that is Officer Wierszewski. Turns
on light and instructs defendant to watch light.
Tests done improperly. 33. Doing large circles.
Three eye crosses. Four circles. 11 horizontal
deviations. Extended max D beyond three seconds.
Is any of that critical of the administration of the
test?
A.
That’s consistent with my observation that
mixing the lack of convergence with the HGN could
fatigue the eyes. It was never my practice to do
that many movements. Typically I would do it in
three or four quick movements.
Q.
I’m just trying to figure out what that refers to
when obviously that refers to your very first
criticism of the mixing of the two tests. Correct?
A.
That is documentation of the mixing of the two
tests.
Q.
Are you critical of any of the three standardized
field sobriety tests that we have already talked
about that we haven’t already discussed?
A.
Am I critical?
Q.
Any other criticisms I guess is what I’m asking
you other than what we have already discussed?
App.116a
A.
I don’t have criticisms other than I don’t believe
they rose to the level of probable cause for an
arrest in and of themselves.
Q.
With respect to the performance of Officer
Wierszewski, as it relates to his arrest, am I correct that your opinion is that he had no probable
cause to arrest him for OWI?
A.
Correct.
Q.
Any other opinions that you are going to render
against Officer Wierszewski in this case?
MR. RADNER: I’m going to object to the form of that
question.
You can answer it if you understood it.
A.
I have no criticisms toward Officer Wierszewski,
other than he seemed to have ignored the evidence
that he was developing to make his arrest decision.
Q.
Can you answer my question?
A.
No.
Q.
Okay.
A.
No, I don’t have any.
Q.
Okay.
A.
Yes, I can answer your question. The answer is
no.
Q.
That’s fair enough.
What is it that you reviewed if anything to render
an opinion as it relates to the City of Grosse
Pointe Farms?
App.117a
MR. RADNER: I’m going to object that it calls for a
legal conclusion but if you can answer that question.
A.
I don’t know what you’re asking.
Q.
Early on in the deposition, Mr. Bugbee, I asked if
you were going to render opinions critical of
Officer Wierszewski and the City of Grosse Pointe
Farms. And my recollection is that you indicated
an affirmative response to both of those questions.
In so much as you have just indicated to me that
you have no other opinions related to Officer
Wierszewski, other than you believe he did not
have probable cause to arrest Mr. Thibault, I’m
now moving to the City of Grosse Pointe Farms to
ascertain what opinions if any you will be
asserting before the jury if allowed to do so in this
matter?
A.
I clearly misunderstood the scope of that question.
No, I don’t have any criticisms against the City of
Grosse Pointe Farms. I would like to correct that
prior statement. No, I do not have criticisms.
Q.
You know what, I’m going to let you do that. Any
other materials that you were kind enough to bring
that we haven’t already marked?
A.
I have got my training certificates.
Q.
Let’s mark those. Are those copies that you made
for me?
A.
These are copies of my training certificates.
Q.
Okay.
(Deposition Exhibit No. 9 marked for identification.)
App.118a
Q.
Are you prepared to render any opinions in this
matter against Officer Wierszewski related in
any fashion whatsoever to the dismissal of the
misdemeanor charges brought against him in
January of 2015?
MR. RADNER: I’m going to object to that because I’m
not sure I understand that question.
A.
I don’t understand.
MR. DEGROOD: Would you read it back again?
(Record repeated.)
A.
Was Wierszewski charged.
Q.
No. Perhaps I misspoke. Are you in any position
to render any opinions against Officer Wierszewski
with respect to the dismissal of the misdemeanor
charges brought against Mr. Thibault which were
dismissed in January of 2015?
A.
No.
Q.
Am I correct that you have no knowledge one way
or the other with respect to what role if any
Officer Wierszewski had in the dismissal of the
misdemeanor charges?
A.
You’re correct.
MR. DEGROOD: Let’s go off the record.
(Brief recess.)
Q.
Mr. Bugbee, are you at this point in time rendering
any opinion related to Officer Wierszewski concerning the claims of malicious prosecution being
made against him?
A.
No.
App.119a
Q.
I think you have already indicated that you have
no opinions related to the City of Grosse Pointe
Farms, correct?
A.
Correct.
MR. RADNER: Subject to my objection to that question.
Q.
Have you at any point in time been provided with
a copy of the actual complaint filed in United States
District Court against my clients?
A.
Yes.
Q.
Would you agree with the statement: That every
arrest of a citizen by a law enforcement officer
requires a judgment call be made on behalf of the
arresting law enforcement officer?
A.
Yes.
MR. RADNER: What do we want a copy of here?
(Brief recess.)
Q.
Would you agree that at the time of this particular
stop by Officer Wierszewski that he was acting in
furtherance of a legitimate government function?
A.
Yes.
Q.
As a retired Michigan State Police officer, you
would agree that there were no violations of Mr.
Thibault’s rights related to the actual stop of him
that evening?
A.
I would agree.
Q.
It was not a violation of Mr. Thibault’s rights on
12-5-14 to ask for his CDL or commercial driver’s
license, logbook, medical card or annual inspection
forms when he was stopped?
App.120a
A.
Correct.
Q.
It was not a violation of any of Mr. Thibault’s
rights on 12-5-14 when Officer Wierszewski asked
him if he was suffering from any medical issues?
A.
Correct.
Q.
Would you also agree that it was not a violation
of Mr. Thibault’s rights when Officer Wierszewski
asked him at what time he had started driving
that evening?
A.
Correct.
Q.
Would you also agree that it was not a violation
of Mr. Thibault’s rights when Officer Wierszewski
asked him to explain what had happened with
respect to his vehicle coming into contact with the
island median?
A.
Correct.
Q.
Would you agree that it was not a violation of Mr.
Thibault’s rights for Officer Wierszewski to ask
him if he had had anything to drink that evening?
A.
Correct.
Q.
Would you also agree that it was not a violation
of Mr. Thibault’s rights for Officer Wierszewski to
ask Mr. Thibault to participate in the standard
field sobriety test and field sobriety test that
evening?
A.
Correct.
Q.
Would you agree that it was not a
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