||FOURTH CIRCUIT UPHOLDS FINDING OF PROBABLE CAUSE AND GRANT OF IMMUNITY

FOURTH CIRCUIT UPHOLDS FINDING OF PROBABLE CAUSE AND GRANT OF IMMUNITY

On April 12, 2018, the Fourth Circuit Court of Appeals decided Spivey v. Norris et al.[i], in which the court considered whether a detective was entitled to qualified immunity for a constitutional and state law malicious prosecution claims. The relevant facts of Spivey, taken directly from the case, are as follows:

Danielle Spivey visited dentist Dr. Brent Lawson on August 17, 2012, to address swelling that followed root canal surgery. On that day, Lawson prescribed Spivey penicillin and Percocet, a narcotic pain medication. Spivey returned to Lawson’s office on August 20, 2012, for a tooth extraction, and Lawson gave her another Percocet prescription.

Shortly thereafter, Detective Kevin Norris received information that Spivey tried to fill a prescription for narcotic pain medication at a CVS in Loris County, South Carolina that the pharmacist could not verify as legitimate, and that she “caus[ed] a ruckus because she couldn’t get prescription pills.” J.A. 360. He also learned that Spivey might have passed a forged prescription at a pharmacy in Whiteville, North Carolina. Because of Norris’s relationship to Spivey’s mother, he asked Agent Cecil Cherry of the North Carolina State Bureau of Investigation (“SBI”) Drug Diversion Unit to direct the investigation. Although Cherry led the ensuing investigation, Norris continued to participate in it. Cherry examined the prescription dated August 17, 2012, and filled in Whiteville, North Carolina, and believed it to have been altered to change the amount from twenty Percocet tablets to thirty.

Although on November 6, 2012, Cherry and Norris questioned Lawson on the discrepancy, the witnesses dispute what Lawson said at the meeting. According to Cherry, Lawson told Cherry and Norris that his records reflected that he prescribed twenty tablets of Percocet to Spivey. According to Cherry, Lawson said that he would not write thirty tablets on the prescription and then write twenty tablets in Spivey’s chart. Lawson maintained that he never wrote prescriptions for thirty tablets; he usually writes Percocet prescriptions for twenty tablets or fewer. Cherry also stated in his deposition that Lawson never told him that the prescription contained an error. Cherry stated in his deposition that his investigation notes reflect his account of the meeting and indicate that he spoke to Lawson again on November 29, 2012, about his general procedures for prescribing medication.

During the course of discovery in the instant suit, Dr. Lawson stated in his deposition that the prescription for thirty tablets was in his handwriting, that Norris and Cherry had not shown him the prescription, and that if he had seen the prescription he would have told them that. Lawson also stated that he did not have a hard rule against prescribing thirty tablets and that the discrepancy was probably a mistake on his part.

On November 7, 2012, Cherry and Norris accompanied an agent from the South Carolina Department of Health and Environmental Control to interview Spivey at her workplace. Spivey denied altering the prescription, but admitted that her husband frequently took her Percocet pills without her permission and that she therefore hid them from him.

While on patrol the next day, Norris observed a car nearly strike a bridge and stopped the vehicle. Spivey’s husband was driving. Norris noticed the smell of alcohol on Mr. Spivey’s breath and called the department’s traffic team. Another officer completed the stop and transported Mr. Spivey to the county jail where his blood alcohol level was tested. As a result, Mr. Spivey received a citation for driving while impaired, which was later dismissed.

On November 19, 2012, Lawson was directed to provide Spivey’s medical records to the Columbia County Sheriff’s Office. Later that month Cherry and Norris met with Assistant District Attorney Heath Nance. Nance concluded that there was probable cause to arrest Spivey. Shortly after their meeting, Cherry sought a warrant for Spivey’s arrest from a magistrate judge. The magistrate judge agreed that Cherry had established probable cause and issued an arrest warrant for Spivey for unlawfully obtaining possession of more than fourteen but less than twenty-eight grams of opiates in violation of N.C. Gen. Stat. § 90-95(h)(4) and unlawfully obtaining possession of Percocet by altering a prescription in violation of N.C. Gen. Stat. § 90-108(a)(10). Later that day, Cherry called Spivey to inform her of the outstanding warrants for her arrest and Spivey surrendered at a police station.

Spivey entered an Alford plea to a reduced misdemeanor charge of possession of a Schedule II controlled substance. Spivey believed that the Alford plea would allow her to keep her nursing license and expunge her criminal record upon satisfaction of the requirements set forth by N.C. Gen. Stat. § 90-96. The court sentenced Spivey to a term of probation. On February 22, 2013, a dismissal notice of reinstatement was filed dismissing Spivey’s misdemeanor simple possession conviction citing her compliance with N.C. Gen Stat. § 90-96. Spivey contends that the court dismissed her conviction as a result of her production of the original prescription. Appellant’s Br. at 18.[ii]

Spivey subsequently filed suit for violations of her First, Fourth, and Fourteenth Amendment rights and a variety of state law claims.  This article will not discuss the state law claims; however, as noted by the court most of the claims, both federal and state can be resolved by determining whether probable cause existed to support the arrest warrant.  The district court found that probable cause did exist and granted qualified immunity for Detective Norris and the sheriff.  Spivey appealed the grant of qualified immunity to the defendants to the Fourth Circuit Court of Appeals.

Regarding qualified immunity, the Fourth Circuit stated

Relatedly, “officers are entitled to qualified immunity under § 1983 unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was ‘clearly established at the time.’Dist. Of Columbia. v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). Therefore, if probable cause existed such that there was no Fourth Amendment violation, Norris would be entitled to qualified immunity on the claim against him in his individual capacity.[iii] [emphasis added]

Since most of Spivey’s claims hinge upon whether probable cause existed to support the arrest warrant, the Fourth Circuit first set out to determine this issue.  The court then discussed the legal principles related to probable cause.  The court stated

Probable cause ‘is not a high bar.'” Wesby, 138 S. Ct. at 586 (quoting Kaley v. United States, 134 S. Ct. 1090, 1103 (2014)). “While probable cause requires more than ‘bare suspicion,’ it requires less than that evidence necessary to convict.” United States v. Gray, 137 F.3d 765, 769 (4th Cir. 1998). “‘Probable cause’ to justify an arrest means facts and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.Id. In determining whether probable cause existed, we look to two factors: “the suspect’s conduct as known to the officer, and the contours of the offense thought to be committed by that conduct.” Graham v. Gagnon, 831 F.3d 176, 184 (4th Cir. 2016) (quoting Pritchett, 973 F.2d at 314). Probable cause is an objective inquiry. Gray, 137 F.3d at 769. “[W]e examine the facts within the knowledge of arresting officers to determine whether they provide a probability on which reasonable and prudent persons would act; we do not examine the subjective beliefs of the arresting officers to determine whether they thought that the facts constituted probable cause.Id.[iv] [emphasis added]

The court then examined the facts that were relevant to the objective determination of probable cause.  The court articulated the relevant facts related to probable cause that were known to Cherry and Norris as follows:

  • Norris informed Cherry that he received information that Spivey tried to fill a forged prescription;
  • Cherry, a trained law enforcement officer, looked at the prescription and believed it had been altered;
  • Cherry and Norris interviewed the doctor that wrote the prescription, Dr. Lawson, and he had notes that stated he prescribed Spivey 20, not 30, Percocet;
  • Lawson also told Cherry and Norris that he never prescribes more than 20 Percocet; and
  • Spivey admitted to Cherry and Norris that her husband took her pain medication without her consent.

The Fourth Circuit stated that the facts above match “the contours of the crime, mainly that Spivey was unlawfully in possession of the Percocet” in violation of North Carolina law.[v]

The court further went on to stated that, even if it credits part of Dr. Lawson’s deposition testimony that denies part of Cherry’s account of their interview, the court said probable cause would still be present based upon (1) the tip Norris received about Spivey, (2) the fact that Cherry’s examination of the prescription led the investigator to believe it had been altered, (3) and the fact that nobody disputes that Dr. Lawson wrote that he prescribed 20 tablets in Spivey’s patient chart.  Further, Spivey did not present any evidence that Dr. Lawson told the detectives that the prescription for 30 tablets was his handwriting and that he made a mistake in his chart.  Rather, the evidence was that Dr. Lawson did not see the prescription, which does not alter the probable cause determination as discussed above.

The court also stated

Probable cause does not require officers to rule out a suspect’s innocent explanation for suspicious facts.” Wesby, 138 S. Ct. at 588. Nor does probable cause require proof beyond a reasonable doubt. See id. (“As we have explained, ‘the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.‘”) (quoting Illinois v. Gates, 462 U.S. 213, 244 n.13 (1983))… “[a]lthough an officer may not disregard readily available exculpatory evidence of which he is aware…” [vi] [emphasis added]

The court then held that facts as discussed above supported probable cause and no exculpatory evidence that would negate the probable cause was provided to Cherry and Norris at the time the warrant was obtained.  Thus, no constitutional violation occurred and the plaintiff could not satisfy the first prong of the test to defeat qualified immunity.

Therefore, the defendants are entitled to qualified immunity from the Fourth Amendment and state law malicious prosecution claims, and as such, affirmed the decision of the district court.  The court of appeals also affirmed the grant of summary judgment to all defendants on all other claims.

__________________________________________

CITATIONS:

[i] No. 17-1493 (4th Cir. Decided April 12, 2018 Unpublished)

[ii] Id. at 2-5

[iii] Id. at 8

[iv] Id. at 9

[v] Id. at 10

[vi] Id. at 10-11

By |2018-10-04T14:43:57+00:00October 10th, 2018|Legal updates|

About the Author:

Brian Batterton is an attorney in the State of Georgia and currently a Lieutenant with the Cobb County Police Department. He has been in law enforcement since 1994 and obtained his Juris Doctorate in 1999 from John Marshall Law School in Atlanta. He has served as an officer in Uniform Patrol, a detective in Criminal Investigations, a Corporal in the Training Unit and as a Sergeant in Uniform Patrol. Brian is currently assigned as the Legal Officer to the Chief of Police. In addition to his work at the police department, he also lectures for the Legal and Liability Risk Management Institute (LLRMI) on both criminal law and procedure topics, as well as, police civil liability.