United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION AND ORDER
L. Bunning United States District Judge .
an action brought pursuant to 42 U.S.C. § 1983 and
Kentucky law to recover for injuries arising from an
allegedly unlawful search of Plaintiff Brittany Harris by
Defendant Officer Kimberly Klare.
Factual and Procedural Background
night of May 22, 2014, seventeen year-old Brittany Harris was
riding home from dinner with her mother, father, and sister
in a car driven by her mother. (Doc. # 33 at 42, 45-48).
Before Harris and her family got home, Erlanger police pulled
the car over at a gas station. Id. at 49-52.
According to Harris, the police officer had been peering at
the car's license plate prior to the stop. Id.
at 48-50. The officer then followed the car for about a mile
before flashing his lights and pulling them over.
Id. When the officer approached the vehicle, he told
Harris's mother that he pulled her over because he could
not read the license plate. Id. at 52-54. After
asking for Harris's mother's license and
registration, the officer discovered that her license was
suspended. Id. at 54. Another officer arrived in a
police cruiser, noticed Harris and her father sitting in the
back of the car, and opened the car's rear door.
Id. at 56-57. The police saw Harris's
father's equipment and tools on the floor and in
containers in the car. Id. at 58-60.
police cruiser arrived, and the first officer asked
Harris's mother to step out of the car. Id. at
62-63. Another officer told Harris and her other family
members to wait inside the car. Id. at 67-68. A
fourth cruiser arrived. Id. at 68. While she was
waiting in the car with her father and sister, Harris told
her father she needed to use the bathroom, and he told a
police officer. Id. at 67-68. The police officer
told Harris she needed to wait. Id. Later, an
officer told Harris, her father, and her sister that
Harris's mother had a license suspension from Ohio, and
that was creating an issue in the system with how to respond.
Id. at 69. The officer asked Harris, her father, and
her sister to step out of the car and wait on the curb.
Id. at 71-72. Harris sat on the grass while her
father and sister sat on the curb. Id. During this
time, another officer asked them questions about their dates
of birth and social security numbers. Id. at 71-72.
The officers then informed Harris that they were arresting
her mother. Id. After that, Harris and her family
were told that the police had requested a canine unit to
sniff the vehicle. Id. at 79. When the dog arrived
to sniff the car, there were six police cruisers at the
scene, and Harris's mother had been handcuffed and put in
a police car. Id. at 77-78, 82. Defendant Kimberly
Klare, another Erlanger police officer, arrived after that,
and the police asked Harris's father whether Officer
Klare could escort Harris to the bathroom. Id. at
84. He agreed. Id.
officers told Harris to go ahead, and she began to walk
toward the bathroom, crossing the pumps in front of the gas
station. Id. at 84. Harris noticed that Klare was
not behind her, turned around, and saw Klare speaking to
another police officer. Id. at 84-85. Klare motioned
for Harris to approach her, and the two walked toward each
other. Id. at 85. At that point, the stories
to Harris, Officer Klare asked if she had anything on her
person that was sharp or could cut Klare. Id. at
85-86. Harris said no. Harris claims that Officer Klare never
asked permission to search her, but told her she “may
have to search her.” Id. at 86. Then, Officer
Klare asked Harris “[w]ould you step over here, ”
to which Harris replied “[y]es, ” and stepped
toward Klare. Id. at 86. Then Klare “had
[Harris] face the gas pump” and “told [Harris] to
spread [her] legs and put [her] hands behind [her]
back.” Id. Harris did as she was told. Klare
explained what she would be doing, patted Harris down, and
then told her she would search her bra. Id. at
86-87. Harris claims that Officer Klare reached under her bra
and pinched her breasts. Id. at 87-88. Harris says
she did not know what was going on, did not know she could
refuse to be searched, and did not know she was going to be
searched when she walked over to Officer Klare. Id.
at 88. Harris admits that she never objected to the search,
but claims that she saw Officer Klare “put her hand on
her gun” several times while Klare spoke to her.
Id. at 89. Harris claims that she “didn't
feel like [she] could say anything” because she was
bothered and threatened by Officer Klare putting her hand on
the gun, which Harris claims was not snapped into its
holster. Id. at 90-91. Harris also states that she
“didn't feel threatened at first, ” and that
“[i]t was only when the search started to happen that I
felt like I couldn't do anything because, at first, I
thought we were just going to the bathroom. I didn't feel
I was ever going to be touched or hurt or anything.”
Id. at 96.
to Officer Klare, however, when the two first spoke, she
explained to Harris that Harris was not under arrest, and
that Klare had been called to the scene because the police
usually call female officers to escort other females to the
bathroom. (Doc. # 34 at 36-37). Officer Klare agrees with
Harris that she asked whether Harris had anything sharp on
her person that would stick or harm Klare, and that Harris
said no. Id. at 37. However, Officer Klare claims
that she did ask for and receive permission to search Harris.
Id. at 37. Officer Klare asserts that she pulled the
underwire of Harris's bra out slightly so that anything
tucked underneath would fall out, and used the back of her
hand to feel underneath and between Harris's breasts.
Id. at 40. After conducting the search, Officer
Klare escorted Harris to the bathroom, then brought Harris
back to the traffic stop. Id. at 37.
has moved for summary judgment. (Doc. # 30). Plaintiff filed
a response, and Defendant replied. (Docs. # 36 & 37). The
motion is therefore ripe for the Court's review
Standard of Review
judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). If
there is a dispute over facts that might affect the outcome
of the case under governing law, entry of summary judgment is
precluded. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). The moving party has the ultimate burden of
persuading the Court that there are no disputed material
facts and that she is entitled to judgment as a matter of
law. Id. Once a party files a properly supported
motion for summary judgment by either affirmatively negating
an essential element of the non-moving party's claim or
establishing an affirmative defense, “the adverse party
must set forth specific facts showing that there is a genuine
issue for trial.” Id. at 250. However, the
“mere existence of a scintilla of evidence” in
support of the non-moving party's position is
insufficient; “there must be evidence on which the jury
could reasonably find for the [non-moving party].”
Id. at 252.
Plaintiff Was Lawfully Detained
valid consent to be searched can be “tainted by the
illegality” if the detention that precedes it is
unlawful. Florida v. Royer, 460 U.S. 491, 507-08
(1983). In her response brief, Plaintiff argues that she
could not have validly consented to a search under any
circumstances because the initial stop of her mother lacked
probable cause, and because officers “had no
particularized and objective basis to believe that Harris was
engaging in any criminal activity.” (Doc. # 36 at
8-10). Harris also argues that Officer Klare is not entitled
to qualified immunity because she had no reason to believe
that Harris's seizure was supported by probable cause,
and therefore acted unreasonably in searching her, even if
Harris had validly consented. Id. at 12-13. Each of
those contentions is incorrect.
Sixth Circuit has held that “so long as the officer has
probable cause to believe that a traffic violation has
occurred or was occurring, the resultant stop is not unlawful
and does not violate the Fourth Amendment.” United
States v. Bradshaw, 102 F.3d 204, 210 (6th Cir. 1996)
(quoting United States v. Ferguson, 8 F.3d 385, 391
(6th Cir. 1993)). “The probable cause determination
turns on what the officer knew at the time he made
thestop.” Id. Harris herself
explained that, before the police officer pulled over her
mother, he peered with “interes[t]” and
“confus[ion]” at the back of the car. (Doc. # 33
at 50). The officer then explained to Harris's mother
that he pulled her over because he could not read the license
plate. Id. at 52. Therefore, the officer had
probable cause for a ...