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Stewart C. Smith v. Officer John Hanuska and David Bixler

March 17, 2011

STEWART C. SMITH
PLAINTIFF
v.
OFFICER JOHN HANUSKA AND DAVID BIXLER DEFENDANTS



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

Presently before the court is the report and recommendation of Magistrate Judge Thomas M. Blewitt (Doc. 87), dated February 3, 2011, recommending that the court grant defendants' motion (Doc. 76) for summary judgment with respect to plaintiff's false arrest claims, and deny the motion with respect to plaintiff's illegal search and seizure claim against defendant Officer John Hanuska. Judge Blewitt further recommends that the court deny plaintiff's motions (Docs. 41, 61, 73) for summary judgment in toto. On February 17, 2011, both parties filed objections to the magistrate's R&R. (See Docs. 88, 89). For the reasons that follow, the court will adopt in part, and reject in part, the report and recommendation. (Doc. 87).

I. Background*fn1

This case arise from a June 4, 2007 traffic incident on Old Salem Road between Hokes Mill Road and West College Avenue in York County, Pennsylvania.

Officer John Hanuska ("Officer Hanuska") of the West Manchester Township Police Department was working the midnight shift, on patrol in a marked police cruiser. At approximately 12:20 a.m. Officer Hanuska was traveling on Old Salem Road, a dark, rural road surrounded by crop fields with no streetlights and no lane markers. Officer Hanuska spotted a white Chevy Cavalier parked on the roadway and pulled up behind it. Officer Hanuska testified that he stopped to check whether the occupant needed assistance. He further testified that he has arrested several drug users on that road, encountered stolen vehicles there, and that individuals often dump trash illegally in this vicinity.

Officer Hanuska exited his police cruiser and observed through the rear windshield of the Cavalier an individual, the plaintiff Stewart Smith ("Smith"), sit up from a reclined position. According to Officer Hanuska, Smith spun around, looked at him, then reached between the front seat in what appeared to be an attempt to hide an object. Smith disputes this recitation of the event. Smith contends that he pulled over to the side of the road to make a cellular phone call. He claims that he was reclined in his seat and saw Officer Hanuska pull up behind him, but he never made any movement towards the middle of the seats or any attempt to conceal any objects. (Doc. 79, Ex. D, at 5).

Officer Hanuska approached the vehicle with his flashlight illuminated and ordered Smith to exit. Officer Hanuska handcuffed Smith and conducted a pat down for weapons. (Doc. 79, Ex. A, at 7). In Smith's left pants pocket Officer Hanuska felt a small bag containing pills and a soft substance that he believed to be marijuana. He pulled the bag out of Smith's pocket and placed Smith under arrest. The substance in the bag field tested positive for marijuana. After placing Smith in the patrol car, Officer Hanuska returned to the vehicle to check between the seat where he previously noticed Smith attempt to conceal an object. Officer Hanuska discovered a crack pipe between the front seat and the middle console. Officer Hanuska asserts that he only searched this area of the vehicle out of concern that a weapon was present. Smith disputes the nature of the search, contending that Officer Hanuska "ransacked" the vehicle with the assistance of other unknown officers.

Officer Hanuska transported Smith to the central booking station where officers processed Smith and released him. Officers informed Smith that he would receive a summons in the mail. At the time of the incident Smith was on Pennsylvania state parole, and officers contacted the parole board about the incident. On June 24, 2007, Pennsylvania State Parole Agent Brian Shaffer contacted Detective David Bixler ("Detective Bixler") to inquire whether drug charges were filed against Smith for the June 4, 2007 incident. Detective Bixler attempted to check with Officer Hanuska, however, Officer Hanuska was on vacation. Detective Bixler prepared and signed the affidavit of probable and proceeded to file a criminal complaint with the West Manchester Township Police Department, based on the events of June 4, 2007. The complaint charged Smith with one count of violating Title 35 Health and Safety Chapter 6 of the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act for possession of marijuana and drug paraphernalia. (Doc. 79, Ex. B). Smith was already in custody on a parole warrant on June 24, 2007 when the criminal complaint issued.

On August 23, 2007 a Magisterial District Judge conducted a preliminary hearing and bound over the charge to the York County Court of Common Pleas ("CCP") for trial. (Doc. 79, Ex. F). Smith filed a motion to suppress and a habeas corpus motion with the CCP. After the suppression hearing, by written order dated January 11, 2008, the Honorable John H. Chronister granted the motion to suppress. (Doc. 79, Ex. G). Judge Chronister did not find there to be exigent circumstances to justify the vehicle search. He also concluded that the protective pat down exceeded the scope of a permissible pat down noting that "the police officer, once he does not feel something hard, is deemed to be aware that there is no weapon and basically must stop." (Id. at 3). Judge Chronister also stated that the approach of the vehicle and decision to conduct a pat down was improper as there was "simply nothing about this situation which would give [Officer Hanuska] reason to believe that he was in danger." (Id. at 4). On January 14, 2008, Judge Chronister granted Smith's habeas corpus motion and dismissed the charges. (Id. at 6).

On May 11, 2009, Smith instituted this civil rights action pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1985(3) against Officer Hanuska, Detective Bixler, Pennsylvania State Parole Agent Brian Shaffer, and Police Officer(s) John Doe(s) alleging excessive force, false arrest, illegal search and seizure, false imprisonment, violations of equal protection, malicious prosecution, selective law enforcement practices, and conspiracy. (Doc. 1). Subsequent to a screening of the complaint, mandated by the Prison Litigation Reform Act of 1995, Pub. L. 104-134, 110 Stat. 1321 (codified at 28 U.S.C. § 1915A), and the court affording Smith an opportunity to amend the complaint, litigation proceeded on two grounds. The remaining causes of action are: (1) false arrest against Officer Hanuska and Detective Bixler, and (2) illegal search and seizure against Officer Hanuska.

Smith filed a motion for summary judgment (Doc. 41) on August 10, 2010, a second motion for summary judgment (Doc. 61) on September 30, 2010, and a third motion for summary judgment (Doc. 73) on December 2, 2010. Officer Hanuska and Detective Bixler filed a motion for summary judgment (Doc. 76) on December 3, 2010.*fn2 On February 3, 2011, Magistrate Judge Blewitt issued his report recommending that the court deny Smith's motions and grant Officer Hanuska and Detective Bixler's motion for summary judgment with respect to the false arrest cause of action. (Doc. 87). Both parties filed timely objections to the R&R on February 17, 2011. (See Docs. 88, 89).

Officer Hanuska and Detective Bixler assert that Magistrate Judge Blewitt erred in concluding that there are material issues of fact with respect to the search and seizure claim against Officer Hanuska. They contend that Officer Hanuska had probable cause to conduct the June 4, 2007 search of Smith's vehicle and that exigent circumstances obviated the need for a warrant. (Doc. 89 ¶¶ 37-39). They further contend that the initial detention of Smith and pat down constituted a valid Terry stop pursuant to Terry v. Ohio, 392 U.S. 1 (1968). (Id. ¶¶ 40-41).

Smith argues that Judge Blewitt erred in concluding that summary judgment is warranted on the false arrest claims. He contends that Bixler obtained an arrest warrant for him without probable cause after Officer Hanuska previously arrested and released him on the same charge. (Doc. 88, at 1-2). Smith contends that Judge Blewitt also erred in concluding that Officer Hanuska had probable cause for the warrantless arrest. (Id. at 2-4). Smith asserts that a de facto arrest occurred prior to the pat down and discovery of contraband, and that such arrest was without probable cause. (Id.) Smith also asserts that the exclusionary rule should apply to his civil suit with respect to the false arrest charge because of his status as a parolee. (Id. at 5-6). Finally, Smith contends that he is entitled to summary judgment on the search and seizure claim based upon the principles of collateral estoppel and res judicata. He claims Judge Blewitt erred in concluding that the doctrine of collateral estoppel is inapplicable to the decision of the CCP suppressing the evidence in the state court proceeding. (Id. at 5).

II. Standard of Review

A. Standard of Review for Cross-Motions for Summary Judgment

Through summary adjudication the court may dispose of those claims that do not present a "genuine issue as to any material fact" and for which a jury trial would be an empty and unnecessary formality. See FED. R. CIV. P. 56©. The burden of proof is upon the non-moving party to come forth with "affirmative evidence, beyond the allegations of the pleadings," in support of its right to relief. Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); FED. R. CIV. P. 56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This evidence must be adequate, as a matter of law, to sustain a judgment in favor of the non-moving party on the claims. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986); see also FED. R. CIV. P. 56©, (e). Only if this threshold is met may the cause of action proceed. Pappas, 331 F. Supp. 2d at 315.

In the instant matter, the parties have filed cross-motions for summary judgment. According to the Third Circuit:

Cross-motions are no more than a claim by each side that it alone is entitled to summary judgment, and the making of such inherently contradictory claims does not constitute an agreement that if one is rejected the other is necessarily justified or that the losing party waives judicial consideration and determination whether genuine issues of material fact exist.

Lawrence v. City of Phila., 527 F.3d 299, 310 (3d Cir. 2008) (quoting Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968)). Each movant must show that no genuine issue of material fact exists; if both parties fail to carry their respective burdens, the court must deny the motions. See Facenda v. N.F.L. Films, Inc., 542 F.3d 1007, 1023 (3d Cir. 2008). When reviewing each motion, the court is bound to view the evidence in the light most favorable to the non-movant. FED. R. CIV. P. 56;

United States v. Hall, 730 F. Supp. 646, 648 (M.D. Pa. 1980).

B. Standard of Review for a Magistrate Judge's Recommendation

Where objections to a magistrate judge's report and recommendation are filed, the court must perform a de novo review of the contested portions of the report. Supinski v. United Parcel Serv., Civ. A. No. 06-0793, 2009 WL 113796, at *3 (M.D. Pa. Jan. 16, 2009) (citing Sample v. Diecks, 885 F.2d 1099, 1106 n. 3 (3d Cir. 1989); 28 U.S.C. § 636(b)(1)©). "In this regard, Local Rule of Court 72.3 requires 'written objections which . . . specifically identify the portions of the proposed findings, recommendations or report to which objection is ...


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