||SUSPECT ACTS LIKE HE SWALLOWED DRUGS AND SUES OFFICER AFTER NO DRUGS LOCATED

SUSPECT ACTS LIKE HE SWALLOWED DRUGS AND SUES OFFICER AFTER NO DRUGS LOCATED

On January 23, 2020, the Seventh Circuit Court of Appeals decided Baker v. Fermon et al.[i], which serves as an excellent review of the law related to probable cause, searches of a person’s body for drugs, and malicious prosecution.  The relevant facts of Baker, taken directly from the case, are as follows:

Baker was a passenger in a car stopped on September 27, 2014 around 2:30 a.m. by John Fermon, a Bloomington, Illinois, police officer. (Baker does not contest the validity of the car stop.) At this stage, we construe in Baker’s favor the evidence of the events that followed. See Kemp vLiebel, 877 F.3d 346, 350 (7th Cir. 2017). Fermon noticed Baker—whom he had recently arrested for possessing cocaine—in the back. He radioed Officer Steve Statz to ask him to bring a police dog to “sniff” the car for drugs. Statz and his canine arrived shortly thereafter.

As Fermon told the occupants to leave the car for the dog sniff, he noticed an open bottle of tequila on the floor in front of Baker and that Baker was clenching his right hand closed. Fermon thought that Baker was clenching a plastic bag containing a white, powdery substance. Baker denies clenching a bag (and we accept his denial), but he does not dispute that he was clenching his hand shut. Once Baker left the car, he moved his clenched hand across his face. Statz told Fermon that he thought he saw Baker swallow something. (A passenger heard this exchange.) The officers searched Baker and the surrounding area but found nothing, so Fermon believed that Baker had swallowed a bag of cocaine from his clenched hand. Fermon then arrested Baker for the illegal transport of alcohol and took him to the county jail.

Concerned that Baker had swallowed cocaine, jail officials instructed Fermon to take Baker to the hospital, where a doctor gave Baker a charcoal solution and sorbitol—charcoal neutralizes toxic substances and sorbitol flushes the digestive system. The doctor also ordered an x-ray to look for a bag in Baker’s abdomen. Although Baker insisted that he did not swallow anything, he drank the solutions voluntarily and consented to the x-ray to prove his contention. Baker did not pass a plastic bag during his four hours at the hospital, and the x-ray showed no foreign objects. Nonetheless, the doctor explained that he could not rule out the risk that Baker had swallowed a bag of cocaine, which could take up to a week to pass. Fermon took Baker back to the jail, where Fermon completed his report about the arrest. Jail staff monitored Baker for a week, but when no bag was recovered, they released him from observation, though he remained in custody on charges unchallenged in this suit.

Meanwhile, a state prosecutor took legal action. When Baker left the hospital and returned to police custody, a prosecutor presented Fermon’s arrest report to a judge. The report stated that Baker had held a “plastic baggie containing a white powdery substance,” put the bag “into his mouth,” and then “swallow[ed] it.” The judge signed an order finding “probable cause to detain” Baker in lieu of bond “for the charge(s) of: obstruction/destroy evidence.” After Baker’s week under observation, the prosecutor presented Fermon’s report to a grand jury, which indicted Baker for obstruction. The indictment remained pending for two years. In 2016, the prosecutor moved to dismiss the charge in exchange for Baker’s guilty pleas in unrelated cases. Baker objected to the motion. He argued that the charge of obstruction was baseless, and he wanted a chance to prevail at trial. A state judge granted the motion to dismiss the charge.[ii]

Baker subsequently filed suit in federal district court and alleged that Officer Fermon violated his rights under the Fourth Amendment by arresting, searching, and detaining him for the cocaine, and he alleged that Fermon falsified his police report regarding him swallowing cocaine and that amounted to malicious prosecution under Illinois state law.  The district court granted qualified immunity on the Fourth Amendment violations and summary judgment on the state law claim, and dismissed the suit.  Baker appealed to the Seventh Circuit Court of Appeals.

On appeal, Baker raised three arguments regarding the dismissal of his Fourth Amendment claims.  First, Baker argued that Officer Fermon lacked probable cause to arrest him because he never had cocaine.  The court stated

An officer has probable cause to arrest if the officer reasonably believes that the arrestee is committing a crimeAbbott vSangamon Cty., 705 F.3d 706, 714 (7th Cir. 2013).[iii]

In Baker’s case, Officer Fermon saw that Baker had an open bottle of liquor in front of him in the car, which is a violation of state law.  The court stated, “that observation alone supplied an objective basis for the arrest.”[iv]

The court also examined the arrest for the crime of obstruction of justice related to the officer’s belief Baker swallowed cocaine. Specifically, the court explained

Fermon honestly thought that Baker’s right hand was clenching a bag of cocaine (we explain later why no evidence undercuts the honesty of Fermon’s belief); he had recently arrested Baker for possessing cocaine; and when Baker moved his hand to his face, Fermon thought that Baker swallowed the bag. Even though Baker denies doing so, and no bag was ever found, probable cause is assessed by what the police officer honestly and reasonably observed, not later events, and those observations were sufficient. See Abbott, 705 F.3d at 714.[v]

Thus, the claim for false arrest under the Fourth Amendment failed.

Second, Baker argued that Officer Fermon violated the Fourth Amendment by forcing him to undergo an unreasonable search at the hospital.  The court of appeals noted that

Compelling a suspect to undergo an intrusive, unwanted medical procedure in order to obtain evidence may violate the Fourth AmendmentUnited States vHusband, 226 F.3d 626, 632-33 (7th Cir. 2000).[vi]

However, in this case, Baker was not compelled to undergo a search at the hospital.  To the contrary, Baker conceded that he voluntarily drank the charcoal and sorbitol, as well as agreed to an x-ray of his abdomen, “to prove his innocence.”[vii]

Thus, the unreasonable search claim under the Fourth Amendment also failed.

Third, Baker argued that Officer Fermon unreasonably detained him for a week after the hospital visit to observe him in the event he passed the cocaine.  Baker further argued that even if the officer originally had probable cause to believe he swallowed a bag of cocaine, that probable cause evaporated after he failed to pass the bag at the hospital and the x-ray did not show a bag of cocaine.

The court of appeals noted some legal principals that apply to this argument.  First, the court noted

[W]hen a detention lacks probable cause, “arguable probable cause” will shield an officer from suit through qualified immunity if, under the same circumstances and well-established law, a reasonable officer could have found probable causeHuff vReichert, 744 F.3d 999, 1007 (7th Cir. 2014).[viii]

The court found that arguable probable cause existed in this case.

Second, after the hospital visit, a judge found there was probable cause to detain Baker without bond, for obstruction of justice.  The court stated

An “extended restraint of liberty following arrest” based on “a judicial determination of probable cause” complies with the Fourth AmendmentGerstein vPugh, 420 U.S. 103, 114 (1975).[ix]

In addition to court order, the Grand Jury indicted Baker a week later.  In all, the court held that “Fermon is thus amply shielded from suit.”[x]

Thus, the claim for unreasonable detention under the Fourth Amendment after the hospital stay also failed.

Baker also argued that Officer Fermon did not put in his report that was reviewed by the judge that Baker did not pass the cocaine bag at the hospital and that no bag was observed on the x-ray.  However, the doctor testified that the x-ray results did not negate the possibility that Baker swallowed a bag; he also testified that bag could take up to a week to pass.  Thus, another reasonable officer could believe that failing to pass the bag at the hospital and not seeing a bag on the x-ray would not negate the probable cause.  As such, arguable probable cause would still exist and granting qualified immunity would still be appropriate.

Lastly, Baker claims that because the officer never recovered any cocaine, that confirms that he did not possess cocaine and therefore the officer must have lied in his report and testimony.  The court examined the legal rules that control this argument and stated

[J]ust as a judge’s finding of probable cause can defeat a Fourth Amendment claim of unreasonable detention, a grand jury’s indictment typically defeats a claim of malicious prosecutionColbert vCity of Chicago, 851 F.3d 649, 655 (7th Cir. 2017). To overcome the effect of the indictment, Baker must show that some improper “post-arrest action . . . influenced the prosecutor’s decision to indict,” such as a lieSnodderly vR.U.F.FDrug Enforcement Task Force, 239 F.3d 892, 902 (7th Cir. 2001). Likewise, to overcome the judge’s probable-cause finding, Baker needs evidence that Fermon lied to obtain that finding. See Manuel vCity of Joliet, 137 S. Ct. 911, 918-19 (2017).[xi]

The court then noted that Baker’s only evidence that Officer Fermon may have lied is that, in hindsight, no cocaine was ever found.  However, the court said that does not prove a lie; it merely proves, at most, that the officer may have been mistaken in his belief.  The court also noted that there was no independent evidence, such as differing statements, to indicate a possible lie.  In fact, the evidence actually supported that the officer was telling the truth regarding his belief that he saw Baker swallow a bag of cocaine.  Particularly, his written statements were consistent, and a passenger in the car in which Baker had been testified that he heard Officer Statz (the other officer on-scene) say that he saw Baker put something in his mouth.

Thus, the court found no evidence to suggest that Officer Fermon lied so summary judgment was proper for the detention and malicious prosecution claims.

Therefore, the decision of the district court was affirmed.

_______________________________________________

Citations

[i] No. 18-2484 (7th Cir. Decided January 23, 2020 Unpublished)

[ii] Id. at 2-3

[iii] Id. at 3

[iv] Id.

[v] Id. at 3-4 (emphasis added)

[vi] Id. at 4 (emphasis added)

[vii] Id.

[viii] Id. (emphasis added)

[ix] Id. (emphasis added)

[x] Id.

[xi] Id. at 5 (emphasis added)

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By |2020-12-23T12:55:47-05:00December 23rd, 2020|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.