United States District Court, D. Montana, Billings Division
SAM E. HADDON, District Judge.
United States Magistrate Judge Carolyn Ostby entered Findings and Recommendations to Defendants' Motion for Summary Judgment on September 5, 2014. (Doc. 41.) Defendants filed objections, in part, to the Findings and Recommendations on September 19, 2014. (Doc. 42.) Specifically, Officer Grant Morrison ("Morrison") objected to recommendations related to the constitutionality of his conduct in the stop and arrest of Plaintiff Benjamin Karl Smith ("Smith") for a concealed weapon and possession of methamphetamine, and that qualified immunity be denied. Plaintiff Smith did not file objections.
Findings and recommendation to which objection is made are reviewed de novo. 28 U.S.C. § 636(b)(1).
The Court found no error in the Magistrate Judge's Findings and Recommendations as to Defendants City of Billings, Billings Police Department, and Chief St. John's Motions for Summary Judgment and as to Defendants' Motion for Summary Judgment on Plaintiffs claims asserted under Mont. Code Ann. § 42-2-117. All were adopted in full. (Doc. 43.)
A hearing on Defendants' objections to the portion of the Magistrate's Findings and Recommendations on Morrison's motion for summary judgment related to alleged Fourth Amendment violations was held on October 21, 2014. (Doc. 44.) Defendants appeared through counsel. Plaintiff appeared pro se.
Upon de novo review of the record, I find Morrison's Motion for Summary Judgment should be granted. As a matter of law and based upon the undisputed facts, Morrison did not violate the Fourth Amendment. Moreover, he is entitled to qualified immunity for his actions in relationship to the stop and arrest of Plaintiff.
On December 23, 2012, Defendant Morrison was patrolling the 400 block of South 34th Street in Billings, Montana, as part of his routine patrol. (Doc. 35-1, ¶ 1.) At approximately 9:45 p.m., he observed a blue 2002 Acura sedan parked on the shoulder of the road with its lights off, (Doc. 35-1, ¶ 2.)
He saw two occupants inside the vehicle moving their heads up and down. (Doc. 35-1, ¶ 3.) The vehicle did not appear to be running. (Doc. 35-1, ¶ 2.) It was a cold winter night, making it unusual for individuals to be sitting in a vehicle without it running. (Doc. 35-1, ¶ 3.)
Morrison made a mental note of the vehicle and continued on with his patrol. (Doc. 35-1, ¶ 4, ) At approximately 10:17 p.m., he returned to the area. (Doc. 35-1, ¶ 5.) The Acura was still parked in the same spot. (Doc. 35-1, ¶ 5.) As Morrison drove past, it appeared to him that the vehicle was still not running. He once again saw two occupants inside the vehicle. (Doc. 35-1, ¶ 5.)
Morrison decided to check on the welfare of the occupants because it was below freezing, dark, and the vehicle had been stationary for over thirty minutes. (Doc. 35-1, ¶ 6.) He also had concerns about the fact that drug crimes were common in the area where the vehicle was parked and that such crimes were often associated with weapons. (Doc. 35-1, ¶ 3.)
Morrison pulled in behind the vehicle without activating any emergency lights. (Doc. 35-1, ¶ 7.) From this point forward, the sequence of events was captured on his video recording system. (Video filed conventionally, see Doe. 37.)
Morrison activated a spotlight on his vehicle and directed it towards the parked vehicle. Before he could get out of his patrol car or make any contact with the occupants, the occupant on the driver's side of the vehicle (later identified as Smith) exited. As Smith did so, he looked down and appeared to reach towards something on the floor of the driver's side. He then approached the officer's vehicle and did not stop until he was at the very front of it. Morrison made several observations before he was able to exit and begin his approach to Smith, who at that point was holding objects in both hands. Morrison noted to Smith that the vehicle had been "there for awhile" and asked if "everything [was] okay?" Smith proceeded to stand directly in front of Morrison's patrol car holding the objects. He was wearing an untucked heavy shirt over another article of clothing. At this point, Morrison could be heard but was not yet visible on the video. Smith's statements are largely inaudible, but he can seen gesturing with both arms and hands and shifting his stance. Smith still had objects in both hands as he waved them around.
The following dialogue then ensued: Morrison asked: "Who's your friend?" Smith responded, "Jacie." Morrison asked: "Do you have any ID on you?" Smith makes a response that is inaudible. Morrison then asked, "How long have you been here now?" Smith gave a long explanation which cannot be heard. Morrison then said, "I don't know who you are; I've never met you before." Smith made some additional comments which again could not be heard. Morrison then told Smith to "stay right there" before reporting in to dispatch. Morrison then shut his car door and said, "The reason I'm out here I saw you guys pull up for awhile ago and you have just been sitting in your car the whole time." Smith replied, "No, no, no, I just really pulled up here right now-that was another car, a green one that looks like this one, but it was green... I just got here like 5 minutes ago." Morrison then noted: "Someone shining a laser pointer around here.." Smith responded that he has one on the tip of his keys. Morrison then said, "So you ...