United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON DEFENDANTS' MOTION FOR SUMMARY
MCVICKER LYNCH MAGISTRATE JUDGE
matter is before the court on a motion for summary judgment
(Dkt. 29) filed by defendants Seymour Police Department
Officer Mathew Carver and the City of Seymour.
Edna Aguilar is a Honduran citizen who has resided in the
United States since October 2013 and obtained permanent
residency in May 2014. Ms. Aguilar was stopped by Officer
Carver on the night of June 12, 2014, for operating a vehicle
without its headlights on, a traffic ordinance infraction
under Indiana Code section 9-21-7-1. A video camera captured
portions of the stop, and the following undisputed facts are
established by that recording and other evidence submitted by
the parties. Officer Carver gave Ms. Aguilar a verbal warning
for the headlight infraction but did not issue a written
citation for it. At the time of the stop, Ms. Aguilar was
driving her husband's car while in possession of a
Honduran driver's license and permanent residency card
but no Indiana driver's license. After obtaining those
documents from her and performing some check of them, Officer
Carver returned to Ms. Aguilar's car and directed her to
step out of the car. He then had her put her hands behind her
back, handcuffed her, and told her she was going to jail.
During the course of this stop, she was placed in two
different squad cars. While Ms. Aguilar was handcuffed and in
a police car, Officer Carver telephoned a deputy prosecutor
regarding the situation. After conferring with the deputy
prosecutor, Officer Carver issued Ms. Aguilar a citation to
appear in court under Indiana Code section 9-24-18-1 and did
not take her to jail. He also made arrangements to impound
her vehicle. Before the car was impounded, Officer Carver
said, “You don't have anything illegal on you, do
you?” Ms. Aguilar responded, “No, you can
check.” Officer Carver then proceeded to perform some
search of the car.
facts pertinent to the defendants' motion for summary
judgment will be set forth below in the context of the
court's analysis of the parties' arguments.
Aguilar's amended complaint alleges Fourth Amendment
violations against Officer Carver based on the seizure of her
person (arising from the stop) and property (arising from the
search). (Dkt. 10 ¶¶ 33-34) She also alleges that
the City of Seymour is liable to her for false arrest and
conversion under Indiana law and that the City has
respondeat superior liability under Indiana law for
the actions of Officer Carver. (Dkt. 10 ¶¶
35-37) Interestingly, the parties' summary
judgment briefs do not match up directly to these claims.
They don't specifically address state law claims at all,
and they argue a claim of Monell liability for
failure to train that is not even mentioned in the amended
complaint. The plaintiff apparently concedes that her state
law claims are dependent on her Fourth Amendment claims,
because she has not briefed them separately. And the
defendants apparently concede that Ms. Aguilar's
recitation in the amended complaint that she “reserves
the right to proceed with any and all claims which the facts
averred in this Complaint support” (Dkt. 10 ¶ 38)
encompasses a Monell failure to train claim on which
the defendants have moved for summary judgment. So the court
will analyze the claims the parties have briefed.
defendants filed a motion for summary judgment on all of Ms.
Aguilar's claims. They argue that the initial, lawful
traffic stop did not develop into an unreasonable seizure
because “there is no evidence that Officer Carver
prolonged the traffic stop more than was necessary to
investigate the potential crime of operating without a valid
driver's license.” (Dkt. 30 at p. 9). Beyond that,
they maintain that, even if the stop is considered an arrest,
there was probable cause for it. Second, they contend that
even if Ms. Aguilar's detention was not constitutional,
Officer Carver is entitled to qualified immunity, primarily
because the officer sought legal advice. Next, the defendants
assert that the warrantless search of Ms. Aguilar's car
did not violate the Fourth Amendment because Ms. Aguilar
consented to the search and, moreover, the search was
justified by the “impound inventory exception” to
the warrant requirement. (Dkt. 30 at p. 13). Finally, the
defendants argue that there is no evidence of an official,
unconstitutional municipal policy that would support a
finding that the City is liable in this matter. The court
addresses these arguments in turn below, after first
discussing the defendants' threshold challenge to the
admissibility of certain matters Ms. Aguilar has asserted in
opposition to summary judgment.
The Defendants' Challenge to Ms. Aguilar's Statement
outset, the court addresses the defendants' request (in
their reply to Ms. Aguilar's response) that much of Ms.
Aguilar's “Statement of Material Facts and Facts in
Dispute” in opposition to summary judgment be rejected
because the statement contains “inadmissible hearsay,
conclusory assertions, and legal opinions.” (Dkt. 45 at
p. 1). Federal Rule of Civil Procedure 56(c) governs the
procedures for supporting factual positions in support of or
in opposition to a motion for summary judgment. Under Rule
56(c)(2), “[a] party may object that the material cited
to support or dispute a fact cannot be presented in a form
that would be admissible in evidence.” Additionally,
this court's Local Rule 56.1 mandates that a non-movant
in a summary judgment action include in her response “a
section labeled ‘Statement of Material Facts in
Dispute' that identifies the potentially determinative
facts and factual disputes that the party contends
demonstrate a dispute of fact precluding summary
judgment.” The defendants contend that the following
paragraphs of Ms. Aguilar's “Statement of Material
Facts and Facts in Dispute” contain inadmissible
hearsay: 6, 8, 10-13, 15, and 20. These paragraphs set forth
information that Ms. Aguilar was allegedly told by the
Honduran Office of Transportation, the Indiana BMV, and her
insurance agent with regard to her ability to drive legally
in Indiana on a Honduran driver's license, as well as
information taken from the Indiana BMV's official
webpage. Whether they are hearsay depends on what the
statements are offered to prove. But what Ms. Aguilar was
told or may have believed about the legality of driving in
Indiana on a Honduran driver's license is largely
irrelevant to the court's resolution of the
defendants' motion for summary judgment; the court will
therefore disregard these paragraphs for purposes of its
defendants also argue that paragraphs 14, 15, 18, 19, 20, 36,
37, 41, 60, and 68 do “no more than assert legal
opinions, recite legal authorities, or summarize what she
claims state agencies ‘require.'” (Dkt. 45 at
p. 2). Paragraph 14, for instance, contains a lengthy excerpt
of the Geneva Convention on Road Traffic. (Dkt. 41 at p. 4).
Paragraphs 15, 19, and 20 provide information on the Indiana
BMV's procedures for obtaining a driver's license.
Paragraph 18 reads as follows:
Not only do citizens of other countries who move to Indiana
from their home countries enjoy the one-year driving
privilege bestowed upon them by U.S. treaty law, but, as a
practical matter, the lengthy and time consuming process to
obtain a valid Indiana driver's license make it
impossible for them to obtain an Indiana driver's license
within sixty days. Aguilar Aff. 14; Kirts Aff. 12.
(Dkt. 41 at p. 5). The court notes that the first part of the
above-quoted paragraph, which asserts what “citizens of
other countries” enjoy, is not supported by the cited
portions of the record. Paragraph 36 simply recites the text
of Indiana Code section 34-28-5-3. Paragraph 37 states:
“For ordinance violations, officers have the discretion
to either issue a verbal or written warning or issue a
citation to appear in court for the violation. Carver Depo.
20; Ind. Code 34-28-5-3.” The court agrees that these
statements are more legal than factual, but that incorrect
denomination does not mean the court must disregard them if
those statements of the law are nonetheless relevant to the
resolution of the issues before the court.
the other paragraphs challenged by the defendants, Paragraph
41 states: “Ms. Aguilar produced her valid Honduran
driver's license and her permanent residency card.
Aguilar Aff. 25.” (Dkt. 41 at p. 8). Because the
defendants have not conceded the validity of Ms.
Aguilar's Honduran license- referring to it with
qualifying terms such as “what purported to be a
Honduran driver's license” (Dkt. 30 at p. 3), or
“what she claims is a license to drive issued by the
Republic of Honduras” (Dkt. 45 at p. 2)-the claim that
hers was a “valid Honduran license” is a
potentially relevant fact. Paragraph 60 states, “Mrs.
Aguilar's license was an international driver's
license, issued to her in Honduras. Aguilar Aff. 5-6.”
(Dkt. 41 at p. 11). This, too, is a potentially relevant
fact. Moreover, the defendants have not disputed these
assertions, and the court assumes their truth for purposes of
the motion. And finally, in Paragraph 68, Ms. Aguilar asserts
the following: “Chief Abbott is the final policymaker
for the City of Seymour on the training received by Seymour
police officers on this issue, and is the person responsible
to decide if his officers need any additional training or
provided clarification of the law they are about to enforce.
Abbott Depo. 25-26.” (Dkt. 41 at p. 12). This statement
is supported by the portion of the record cited and could
ultimately be a relevant fact in this case.
court therefore does not “reject” all the
challenged portions of Ms. Aguilar's statement of facts.
Rather, it will consider her assertions only to the extent
consistent with the foregoing analysis of them. The court now
turns to the substantive issues raised by the summary
Unreasonable Seizure/False Arrest under the Fourth
well established that the Fourth Amendment prohibits
unreasonable searches and seizures. See, e.g.,
Huff v. Reichert, 744 F.3d 999, 1004 (7th Cir.
2014). As the Second Circuit has recognized, two categories
of seizures of the person implicating the protection of the
Fourth Amendment have emerged in the caselaw. Posr v.
Doherty, 944 F.2d 91, 98 (2d Cir. 1991). The first is an
“investigative detention” or Terry stop,
which employs “the least intrusive means reasonably
available to verify or dispel the officer's suspicion in
a short period of time, ” and is supportable by
reasonable suspicion, rather than requiring probable cause.
See id. (citing Florida v. Royer, 460 U.S.
491, 500, 103 S.Ct. 1319, 1325 (1983) (“The scope of
the detention must be carefully tailored to its underlying
justification.”)). The Fourth Amendment allows officers
to “stop and briefly detain a person for investigative
purposes if the officer has a reasonable suspicion supported
by articulable facts that criminal activity ‘may be
afoot.'” United States v. Wilbourn, 799
F.3d 900, 908-09 (7th Cir. 2015) (citing United States v.
Sokolow, 490 U.S. 1, 7 (1989); Terry, 392 U.S.
at 21). When determining whether an officer had reasonable
suspicion, courts examine the totality of the circumstances
known to the officer at the time of the stop, including the
experience of the officer and the behavior and
characteristics of the suspect. United States v.
Lawshea, 461 F.3d 857, 859 (7th Cir. 2006).
traffic stop will be considered an arrest for Fourth
Amendment purposes if it extends beyond the time reasonably
necessary to complete the purpose for which the stop was
made. Huff v. Reichert, 744 F.3d 999, 1005 (7th Cir.
2014). Ms. Aguilar argues that this was indeed an arrest; the
defendants maintain that it was a mere Terry stop.
Nonetheless, the defendants contend in their reply brief that
even if Ms. Aguilar was placed in “full custodial
arrest, ” the facts show that Officer Carver had
probable cause to do so. (See Dkt. 45 at p. 5). To
be deemed reasonable, a warrantless arrest made in public
must be supported by probable cause. Gutierrez v.
Kermon, 722 F.3d 1003, 1008 (7th Cir. 2013) (citing
United States v. Watson, 423 U.S. 411, 414-24 (1976)).
Probable cause to arrest exists if the totality of the
circumstances known to the officer at the time of the arrest
would warrant a reasonable person's belief that the
arrestee had committed, was committing, or was about to
commit a crime. Id. The existence of probable cause
is an absolute defense to a §1983 claim for
false arrest. Id. at 1007.
Ms. Aguilar alleges in her amended complaint that the
defendants falsely arrested her (and illegally seized her
property). (Dkt. 10). The defendants' initial
memorandum in support of their motion for summary judgment
frames the issue as a reasonable Fourth Amendment seizure (or
reasonably prolonged traffic stop), rather than a false
arrest. (Dkt. 30 at p. 8). But their reply brief argues that
“even if it is as [Ms.] Aguilar contends and she was
placed in full custodial arrest, the facts presented to
Officer Carver gave him the constitutional authority to
effectuate such an arrest.” (Dkt. 45 at p. 5).
court does not need to decide, nor will it, whether Ms.
Aguilar's detention was a Terry stop or an
arrest and, if the latter, whether it was supported by
probable cause. As explained in section III below, the right
of Ms. Aguilar to drive legally in Indiana on her Honduran
driver's license is, at best for her, not clear. Officer
Carver therefore has qualified immunity on the false arrest
claim. And because, as explained in section V below, there is
no evidence to support Monell liability of the city
for the arrest based on failure to train, there is no need to
address the claim further.
Qualified Immunity for Officer Carver
immunity protects an officer from liability if a reasonable
officer could have believed that the action taken was lawful,
in light of clearly established law and the information the
officer possessed at the time.” Phillips v.
Community Ins. Corp., 678 F.3d 513, 527-28 (7th
Cir. 2012). Thus, the court examines two questions: (1)
whether a constitutionally protected right has been violated
and (2) if so, whether the right was clearly established at
the time of the violation. Alexander v. City of
Milwaukee, 474 F.3d 437, 444 (7th Cir. 2007). An officer
is entitled to qualified immunity where clearly established
law does not show that his conduct violated the Fourth
Amendment. Pearson v. Callahan, 555 U.S. 223, 243-44
(2009) (in which the Supreme Court held that in resolving
government officials' qualified immunity claims, courts
need not first determine whether facts alleged or shown by
plaintiff constitute violation of a constitutional right).
This inquiry turns on the objective legal reasonableness of
the action, assessed in light of the legal rules that were
clearly established at the time it was taken. Id. at
244 (internal quotation omitted).
Seventh Circuit has also held that “a court can grant
qualified immunity even when an official's conduct
violated clearly established law (which he is presumed to
know) under some circumstances when the official relied on
legal advice in taking action.” Finch v. City of
Indianapolis, 886 F.Supp.2d 945, 979 (S.D. Ind. 2012)
(citing Davis v. Zirkelbach, 149 F.3d 614 (7th Cir.
1998)). In general, advice of counsel does not give rise to a
qualified immunity defense; but some circumstances can give
rise to the extraordinary level, and the Davis court
noted a number of objective factors that may tend to
demonstrate that the reliance and advice are of the
extraordinary type appropriate to insulate the official from
liability. See Davis, 149 F.3d at 620. These factors
include the following:
Relevant factors include how unequivocal, and specifically
tailored to the particular facts giving rise to the
controversy, the advice was, whether complete information had
been provided to the advising attorney(s), the prominence and
competence of the attorney(s), and how soon after the advice
was received the disputed action was taken.
Id. (quoting V-1 Oil Co. v. Wyoming, 902
F.2d 1482, 88-89 (10th Cir. 1990) (internal quotations,
citations, and footnotes omitted).
“Advice of Counsel” Qualified Immunity
court will address the latter issue first: the
defendants' argument that Officer Carver's telephone
call to Deputy Prosecutor Tyler Banks for legal advice
entitles him to qualified immunity. The court finds that
Officer Carver is not entitled to qualified immunity under
the advice-of-counsel exception. As discussed above, advice
of counsel gives rise to a qualified immunity defense only in
extraordinary circumstances, and they are not present here.
To begin with, the defendants have provided very little
information about the legal advice allegedly given to Officer
Carver. In his deposition, Ms. Aguilar's attorney asked
Officer Carver about his call to Deputy Prosecutor Tyler
Banks, and the following colloquy occurred:
[Officer Carver]: I called Deputy Prosecutor Banks. .....
[Ms. Aguilar's attorney]: What did you tell him?
A: Basically I explained to him the traffic stop in itself,
reason why I pulled them over, the things I that had acquired
during the traffic stop is what I explained to him. .....
Q: Okay. You say you advised Deputy Prosecutor Banks that you
had stopped her for the headlight violation; correct?
A: That is correct.
Q: And that she had a document that she said was a valid
Honduran license; correct?
A: Yes, that she advised that, yes.
Q: And did you advise him whether you had determined whether
that's a valid license or not?
A: No. There's no way for me to determine that. .....
Q: And why did you call Tyler Banks?
A: Basically the reason why I called him is because I wanted
to, number one, give her the benefit of the doubt. I wanted
to make sure that I did everything possible, that I made the
right call[.] . . . She was pretty adamant that she was able
to drive, and she had said that her husband told her she
could drive and that the insurance company had told her she
could drive. I wanted to make sure I was doing the right
Q: . . . Did you tell Tyler Banks that you were going to have
her taken to jail?
A: That was the whole basis of me calling him is to get his
determination on what he thought would be the best setup for
Q: Did he advise you on what the law was in driving on a
foreign national license in the United States?
A: He did not.
Q: Did he express that the law is somewhat confused in that
area and he wasn't sure whether that was illegal or not?
A: All he advised me that based on what I advised that the
best option would be to cite her in to court.
Q: The best option rather than take her to jail?
A: There were only two alternatives at that point. He advised
me that he couldn't tell me. You know, you can never just
say do this or do that, you know, but he said your best
option given the situation would be cite her in to court.
Q: So he didn't tell you, hey, what you've told me
that she's done an illegal act. Go ahead and arrest her;
A: He didn't advise me not to. He just advised that your
better option would be to ...