Free Brief in Support of Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 02-cv-00289-RPM-BNB

ROCKIE LEE ZIMMERMAN, vs. JOHN L. CHADBOURNE, II, RUDY FANNIN, JOSH BENNER, MR. LAWRENCE, MR. DAZEY, MR. STECKLER,

Plaintiff,

Defendants.

REPLY BRIEF IN SUPPORT OF RENEWED MOTION FOR SUMMARY JUDGMENT

COME NOW Defendants, John L. Chadbourne, II, Rudy Fannin, Josh Benner, Mr. Lawrence, Mr.Dazey and Mr. Steckler, by and through the Office of the City Attorney, and pursuant to Fed.R.Civ.P. 56 hereby submit the following reply: ARGUMENT I. A RULING IN PLAINTIFF'S FAVOR ON HIS CIVIL RIGHTS CLAIMS WOULD NECESSARILY IMPLY THE INVALIDITY OF HIS CONVICTION FOR POSSESSION OF METHAMPHETAMINE.

In Mr. Zimmerman's civil rights claims III and IV he alleges false arrest and illegal search and seizure claims on January 8-9, 2001. Regarding this incident, it is not disputed that

methamphetamine was found in Mr. Zimmerman's room during the search. Exhibit C, §§ 3(8) and (9). It is also undisputed that the trial court found that probable cause existed to arrest and charge Mr. Zimmerman. Id. at § 3(11). In addition, it is undisputed that Mr. Zimmerman entered a plea of guilty to the charge of possession of a controlled substance due to the methamphetamine that was

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found during the search of Mr. Zimmerman's room. Id. at § 3(12); Exhibit B, p. 77, lns. 12-14. Mr. Zimmerman also notes in the response brief that the warrant was directed at the crime of credit card fraud. Response Brief at 10. As such, prior to discovering the methamphetamine in Mr. Zimmerman's room the officers had no evidence that the methamphetamine existed. The only evidence to support a charge and conviction of possession of methamphetamine came from the search itself. Without the search, no evidence would have existed to support Mr. Zimmerman's criminal conviction. Mr. Zimmerman acknowledges that pursuant to Heck v. Humphrey, 512 U.S. 477, 486-88, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), if a judgment in favor of a plaintiff would necessarily imply the invalidity of a conviction then that complaint must be dismissed absent a showing that the conviction has been invalidated. Response Brief at 15. However, Mr. Zimmerman argues that a §1983 action alleging an unreasonable search and seizure may proceed notwithstanding Heck. Response Brief at 16. To support this claim, Mr. Zimmerman relies upon Beck v. City of Muskogee Police Dept., 195 F.3d 553 (10th Cir. 1999). Id. Beck found that a suit for damages attributable to an allegedly unreasonable search may lie because a §1983 action, even if successful, would not necessarily imply that a conviction was unlawful. Beck, 195 F.3d at 558. The Beck court reasoned that the lawfulness of the conviction may not be implicated because evidence needed to support that conviction may have been obtained from a source independent from the alleged unlawful search. Id. In other words, if the challenged search and arrest would not implicate any of the elements of the crime associated with the conviction then the alleged unlawful arrest or search would not necessarily imply the invalidity of the conviction. 2

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Id. at 559. However, if an element of the crime is implicated by challenging the arrest or search then the validity of the conviction would be implicated. This is made clear by the court's

acknowledgment that Heck applies to claims that would necessarily imply the invalidity of any conviction, and the court's caveat that the case before it was not one of those "rare situation[s] . . . where all evidence was obtained as a result of an illegal arrest." Id. at 557 and 559 fn. 4. The present case is distinguishable from Beck because this case does involve one of those rare situations where all the evidence relating to the conviction for possession of methamphetamine was obtained as a result of the search. Pursuant to §18-18-405, C.R.S., it is unlawful to knowingly possess a controlled substance. Pursuant to §18-18-204(2)(c)(II), C.R.S., methamphetamine is a controlled substance. An essential element of the crime of possession of methamphetamine is the possession of the methamphetamine. As opposed to Beck where the evidence of the crime was obtained separately from the search and arrest, here the entire evidence to support the possession conviction was obtained as a result of the search and arrest. Without the search, no evidence of the crime would exist. In this case, Mr. Zimmerman's challenge to the search and arrest would implicate the element of possession. Therefore, if Mr. Zimmerman were successful in challenging the validity of the search and arrest that would indicate that anything seized as a result of the search would be fruit of the poisonous tree, and would thus imply the invalidity of his conviction. It is clear that the search of Mr. Zimmerman's room and arrest of Mr. Zimmerman on January 8-9, 2001, led to his drug conviction. It is also clear that the drug conviction rested upon the evidence seized during the challenged search. Thus, it is impossible to view the result of Mr. Zimmerman's claims, if successful, as anything other than an invalidation of his drug conviction. 3

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See Schilling v. White, 58 F.3d 1081 (6th Cir. 1995)(holding that Heck applied to a case where a drug conviction rested upon the evidence seized during a challenged search); Bell v. Raby, 2000 WL 356354 (E.D.Mich.)(Same); Harvey v. Waldron, 210 F.3d 1008, 1015 (9th Cir. 2000)(holding that a §1983 action challenging the legality of a search which resulted in the seizure of evidence relating to the crime of illegal possession of gaming devices would implicate the validity of the conviction for possession as the possession was an essential element of the crime). Therefore, because Mr. Zimmerman's §1983 claims implicate the element of possession, a finding in Mr. Zimmerman's favor would imply the invalidity of his conviction. Such claims are therefore precluded by Heck. II. PLAINTIFF IS COLLATERALLY ESTOPPED FROM ASSERTING CLAIMS ALLEGING A LACK OF PROBABLE CAUSE.

Mr. Zimmerman sets out the four-part test to determine when an issue is precluded from a subsequent litigation. Response Brief at 18-19. Of the four requirements, Mr. Zimmerman argues that only one requirement has not been met. Id. at 19. Mr. Zimmerman claims that the issue of probable cause in this case is not the same issue of probable cause that was litigated in the prior criminal proceeding. Id. Mr. Zimmerman claims that the issue determined at the preliminary hearing was different from the issue of probable cause to arrest. Response Brief at 19. However, the issues are different only in the sense that probable cause for Mr. Zimmerman's arrest involves reference to the evidence that was available to the officers at the time of arrest, while probable cause to bind Mr. Zimmerman over for trial involves reference to the evidence available to the court at the preliminary hearing. See Haupt v. Dillard, 17 F.3d 285, 289 (9th Cir. 1994). "[I]f after arrest but before the preliminary

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hearing additional evidence of a defendant's guilt is discovered, and that evidence is presented at the preliminary hearing, the probable cause determination at the hearing would not be conclusive as to whether there was probable cause to arrest." Id. Here, however, no evidence was adduced at Mr. Zimmerman's preliminary hearing that was not available to the officers when the arrest was made. "We conclude, therefore, that the issue determined at his preliminary hearing is identical to the issue whether there was probable cause to arrest him; both involved a determination that the evidence available and known to the officers at the time of his arrest supported a reasonable belief that [Zimmerman] committed the offenses charged." Id. See e.g. Guenther v. Holmgreen, 738 F.2d 879 (7th Cir. 1984) (same), cert. denied, 469 U.S. 1212, 105 S.Ct. 1182, 84 L.Ed.2d 329 (1985). Therefore, the issue of probable cause in this case is the same issue that was actually litigated and necessarily adjudicated in the prior proceeding. Finally, as previously noted, it is an undisputed fact that after the preliminary hearing the trial court found that probable cause existed to arrest and charge Mr. Zimmerman. Exhibit C, § 3(11). Since the trial court found that probable cause existed to arrest and charge Mr. Zimmerman, the issue of probable cause associated with the arrest was previously litigated and decided. As such, Mr. Zimmerman is precluded from relitigating that issue in this case.

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III.

PROBABLE CAUSE EXISTED TO CONTACT AND ARREST PLAINTIFF.

Mr. Zimmerman claims that his arrest on January 8, 2001, was unlawful because no probable cause to arrest existed. Response Brief at 20. At the outset it should be noted that with the exception of one reference to Sgt. Steckler and Officer Lawrence on p. 11 of the response brief, no allegations are set forth against Sgt. Steckler, Officer Lawrence, or Officer Dazey. Therefore, with regard to those Defendants, Mr. Zimmerman has failed to state a claim upon which relief can be granted. An "arrest is lawful under the Fourth Amendment if there is probable cause to believe that the person arrested has committed an offense." Tanberg v. Sholtis, 401 F.3d 1151, 1159 (10th Cir. 2005). Further, "if legal justification exists for an arrest, there can be no false arrest or false imprisonment." Rose v. City and County of Denver, 990 P.2d 1120, 1123 (Colo.App. 1999). As previously noted, it is an undisputed fact that the trial court found that probable cause existed to arrest and charge Mr. Zimmerman. Exhibit C, § 3(11). Since the trial court has actually decided this issue, the decision establishes that no constitutional violation occurred. Further, since the trial court has decided this issue, the decision precludes relitigation of the issue in this case. See Searing v. Hayes, 684 F.2d 694, 696 (10th Cir. 1982). IV. PLAINTIFF DID NOT SUFFER A VIOLATION OF HIS FOURTH AMENDMENT RIGHTS.

Mr. Zimmerman contends that the entry into his room on January 4, 2001, was unlawful, and the placing of handcuffs on Mr. Zimmerman was unlawful. Response Brief at 24-25. Again, it should be noted that with the exception of a reference to one other officer entering Room 225 on p. 7 of the response brief, there are no allegations set forth against Officers Benner and Fannin. 6

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Therefore, with regards the those Defendants, Mr. Zimmerman has failed to state a claim upon which relief can be granted. With regards to Mr. Zimmerman's claim that Officer Chadbourne unlawfully entered his room on January 4, 2001, Mr. Zimmerman admits that he gave Officer Chadbourne consent to search Room 226. Response Brief at 25, fn. 1. Mr. Zimmerman also admits that he provided consent to Officer Lucero to search both Rooms 225 and 226. Id. In addition, at no time did Mr. Zimmerman tell Officer Chadbourne, or any of the Officers, to leave either Room 225 or Room 226. Exhibit B, p. 33, lns. 17-21. "A search may be conducted without a warrant following voluntary consent by someone with authority over the place searched." Thompson v. City of Lawrence, Kan., 58 F.3d 1511, 1516 (10th Cir. 1995). "Defendant police officers maintain their shield of qualified immunity from liability for warrantless searches as long as a reasonable officer could have believed that the warrantless search was lawful." Id. Mr. Zimmerman gave consent to Officer Chadbourne to search Room 226. Mr. Zimmerman also gave consent to Officer Lucero to search Rooms 225 and 226. Mr. Zimmerman at no time stated that he wanted Officer Chadbourne, or any Officer, to leave, nor indicated that there was a problem with Officer Chadbourne and the other Officers entering either Room 225 or Room 226.1 Therefore, based upon the actions of Mr. Zimmerman, Officer Chadbourne clearly had express consent to enter and search Room 226, and implied consent to enter Room 225, which were never

To the extent that Room 226 was not Mr. Zimmerman's room, Mr. Zimmerman has no standing to contest this search. 7

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revoked. See U.S. v. Ackeret, 2000 WL 1371519, 1 (D.Kan.); U.S. v. Garcia, 997 F.2d 1273, 1281 (9th Cir. 1993). As such, Mr. Zimmerman did not suffer a violation of his Fourth Amendment rights. Mr. Zimmerman also claims that the placing of handcuffs on him was unlawful. Response Brief at 25. Mr. Zimmerman admits that it was Officer Lucero who placed the handcuffs on him, and removed the handcuffs. Exhibit B, p. 24, lns. 10-20; p. 48, lns. 5-9; Response Brief at 6. Mr. Zimmerman did not object to this, nor did he have any problem with the handcuffs being placed on him. Exhibit B, p. 24, ln. 20; p. 33, lns. 13-16; Response Brief at 6-7. There is no allegation that Officer Lucero placed the handcuffs on Mr. Zimmerman pursuant to the direction of another officer, or that Mr. Zimmerman requested that the handcuffs be removed and another officer instructed that the handcuffs remain on Mr. Zimmerman. Since it was Officer Lucero who placed the handcuffs on Mr. Zimmerman, none of the other officers could have deprived him of any constitutional right associated with the handcuffing. Therefore, Mr. Zimmerman did not suffer a violation of his Fourth Amendment rights. V. A FINDING THAT THE SEARCH WARRANT WAS IMPROPER WOULD NECESSARILY IMPLY THE INVALIDITY OF PLAINTIFF'S CONVICTION FOR POSSESSION OF METHAMPHETAMINE.

Mr. Zimmerman alleges that the search warrant Officer Chadbourne obtained on January 8, 2001, was based on false statements and therefore may not be legitimate. Response Brief at 22. The statements Mr. Zimmerman alleges were false include (1) Teresa Light's conversation with Officer Chadbourne; (2) the items found in Room 226 being Mr. Zimmerman's; (3) that Mr. Zimmerman did not have a permanent address; and, (4) that Mr. Zimmerman was unemployed. Id. at 23. If

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probable cause exists for the issuance of a search warrant independent of the alleged false information, then no constitutional violation exists. See Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); U.S. v. Myers, 106 F.3d 936, 940 (10th Cir. 1997); Wolford v. Lasater, 78 F.3d 484, 489 (10th Cir. 1996). For purposes of probable cause for a search warrant, it is irrelevant whether Mr. Zimmerman had a permanent address, or was employed. Further, even if the items found in Room 226 were not specifically attributable to Mr. Zimmerman but attributed to a room he had access to and which no one else was occupying, that information would still contribute to probable cause. Finally, the exhibit provided by Mr. Zimmerman regarding Ms. Light's interview is hearsay and improper for consideration. Therefore, even if the alleged false statements are excised from the affidavit, probable cause still existed for the issuance of the warrant as Mr. Zimmerman earlier in the case conceded. In addition, for the reasons set forth in Section I of this Reply, a finding that no probable cause existed for the issuance of the warrant would necessarily imply the invalidity of Mr. Zimmerman's conviction for possession of methamphetamine. As previously discussed, a finding that the search and arrest were invalid would call into question the only evidence supporting Mr. Zimmerman's conviction. Likewise, if the warrant were now found to be unlawful, that would in turn invalidate the search, arrest and seizure of the methamphetamine. Such a result would call into question Mr. Zimmerman's conviction because without the warrant no search would have followed, and no methamphetamine would have been discovered. Therefore, Heck precludes this claim. Finally, because the trial court found that probable cause existed to arrest and charge Mr. Zimmerman, Officer Chadbourne is immune from Mr. Zimmerman's allegations pertaining to any 9

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false statements in the affidavit. See Haupt, 17 F.3d at 288 (plaintiff alleged that officers submitted an affidavit for an arrest warrant which contained false statements and omitted facts tending to show his innocence. The court held that if the officers in fact had probable cause to arrest plaintiff, then the officers are immune from suit). VI. PLAINTIFF'S STATE COURT CLAIMS ARE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS.

It is not disputed that Mr. Zimmerman's claims all stem from incidents which occurred on January 4, 2001, and January 8-9, 2001. It is also not disputed that Mr. Zimmerman did not file this action until March 25, 2002. In addition, §13-80-103(1)(c), C.R.S., states that all actions against police officers for state torts shall be commenced within one year after the cause of action accrues. However, Mr. Zimmerman claims that his causes of action did not accrue until he discovered the status of his pawn slips. Response Brief at 26. Mr. Zimmerman's assertion is incorrect. Mr. Zimmerman knew as of January 4, 2001, and January 8-9, 2001, what actions the Officers engaged in. Despite Mr. Zimmerman's lack of knowledge of the pawn slips, the events themselves would cause any reasonable person to know that they had a potential claim for damages at the time of the incidents. A claim accrues when the incident occurs, not when each and every claimed damage occurs. See Masters v. Castrodale, 121 P.3d 362, 365 (Colo.App. 2005) (claims for false arrest and false imprisonment presumptively accrue for the purposes of a statute of limitations when the wrongful acts occur); Hoery v. U.S., 64 P.3d 214, 218 (Colo. 2003) (the typical trespass or nuisance is complete when it is committed; the cause of action accrues, and the statute of limitations begins to run at that time); Beck, 195 F.3d at 558 (claims arising out of police actions

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toward a criminal suspect, such as arrest, interrogation, or search and seizure, are presumed to have accrued when the actions actually occur). Because Mr. Zimmerman filed his complaint over a year after the causes of action accrued, Mr. Zimmerman's state tort claims are time-barred. VII. PLAINTIFF'S STATE TORT CLAIMS CANNOT STAND IF PROBABLE LAWS EXISTED TO ARREST.

As previously discussed, it is an undisputed fact that the trial court found that probable cause existed to arrest and charge Mr. Zimmerman. Therefore, the state tort claims of false imprisonment, trespass, and invasion of privacy relating to the January 8-9, 2001, incident, and the claim of fraud and misrepresentation cannot stand. See Rose, 990 P.2d at 1123 (claims for false arrest or false imprisonment cannot stand if there was probable cause to arrest); Haupt, 17 F.3d at 288 (claims pertaining to false statements in an affidavit for a warrant cannot stand if there was probable cause to arrest). WHEREFORE, for the foregoing reasons, as well as the reasons set forth in Defendants' Opening Brief, Defendants' respectfully request that this Honorable Court enter an order granting summary judgment, and dismiss the complaint with prejudice, for costs, and for such other relief as this Court deems appropriate.

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Dated this 27th day of March, 2006. Respectfully Submitted, PATRICIA K. KELLY City Attorney/Chief Legal Officer Reg. No. 014408

s/Shane M. White Shane M. White Senior Attorney Reg No. 019034 Colorado Springs City Attorney's Office 30 South Nevada Avenue, Ste. 501 P.O. Box 1575, Mail Code 510 Colorado Springs, Colorado 80901-1575 Telephone: (719) 385-5909 Facsimile: (719) 385-5535 E-mail: [email protected] Attorney for Defendants

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on the 27th day of March, 2006, I electronically filed the foregoing REPLY BRIEF IN SUPPORT OF RENEWED MOTION FOR SUMMARY JUDGMENT with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] , and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand-delivery, etc.) indicated by the non-participants name: David M. Tenner Bond & Morris, P.C. 303 East 17th Avenue, Suite 888 Denver, CO 80203

s/Tiffany M. Haywood Tiffany M. Haywood Legal Assistant Colorado Springs City Attorney's Office 30 South Nevada Avenue, Ste. 501 P.O. Box 1575, Mail Code 510 Colorado Springs, Colorado 80901-1575 Telephone: (719) 385-5909 Facsimile: (719) 385-5535

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