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Harris v. Klare

United States District Court, E.D. Kentucky, Northern Division, Covington

August 4, 2017

BRITTANY HARRIS PLAINTIFF
v.
KIMBERLY KLARE DEFENDANT

          MEMORANDUM OPINION AND ORDER

          David L. Bunning United States District Judge .

         This is 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.

         I. Factual and Procedural Background

         On the 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.

         A third 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.

         The 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 diverge.

         According 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.

         According 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.

         Defendant 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

         II. Analysis

         A. Standard of Review

         Summary 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.

         B. Plaintiff Was Lawfully Detained

         Otherwise 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.

         The 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)).[1] “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 ...


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