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Fair v. Mills

United States District Court, M.D. Florida, Orlando Division

February 2, 2017

CLINTON FAIR, Plaintiff,
v.
JONATHAN MILLS, Defendant.

          ORDER

          PAUL G . BYRON UNITED STATES DISTRICT JUDGE.

         This cause comes before the Court on the following:

         1. Plaintiff's Renewed Motion for Judgment as a Matter of Law on Count II of the Amended Complaint (Doc. 108);

         2. Plaintiff's Memorandum in Support of Plaintiff's Renewed Motion for Judgment as a Matter of Law and Motion to Amend Complaint to Conform to the Evidence (Doc. 119); and

         3. Defendant's Memorandum in Opposition to Plaintiff's Renewed Motion for Judgment as a Matter of Law (Doc. 120).

         Upon consideration of the pleadings, the evidence and testimony presented at trial, and the parties' respective memoranda, Plaintiff's Renewed Motion for Judgment as a Matter of Law is due to be granted.

         I. BACKGROUND

         On August 12, 2014 at 10:41 a.m., the Orlando Police Department (“OPD”) issued a “be on the lookout” (“BOLO”) for a “rusty grey Toyota Corolla with no tint, four door . . . occupied by a black male named Jeremiah Fillmore.” Around this time, Plaintiff, Clinton Fair (“Fair”), was a passenger in a silver Nissan Sentra being driven by his friend. Sergeant Paul Griffith (“Sergeant Griffith”), an OPD officer who was on duty when the BOLO was announced, saw the car in which Fair was a passenger and, believing that both the car and Fair matched the description given by the BOLO, conducted a traffic stop. Defendant, Officer Jonathan Mills (“Officer Mills”), another OPD officer who was on duty at the time, encountered Sergeant Griffith performing the traffic stop and, although he did not know why Sergeant Griffith initiated the stop, pulled over to assist. As the officer leading the investigation, Sergeant Griffith obtained both the driver's and Fair's identification and ultimately determined that neither was the suspect described in the BOLO.

         Although the initial reason for the traffic stop had ended, the officers continued to investigate. Upon returning the driver's identification, Sergeant Griffith asked if he could search the vehicle, to which the driver answered no at least once and perhaps twice. On the opposite side of the car, Officer Mills asked Fair if he had anything illegal on him, to which Fair answered no. Officer Mills also asked if they had drugs or weapons in the vehicle, to which Fair again replied no. Officer Mills acknowledges that he did not observe any contraband in the vehicle and that he lacked an articulable reasonable suspicion to believe that Fair was in possession of a weapon or contraband or that he had committed, was committing, or was about to commit a crime. Similarly, Officer Mills agrees that he lacked probable cause to search either the vehicle or Fair's person.

         Officer Mills, lacking any evidence of criminal wrongdoing, exercised his law enforcement prerogative to request Fair to consent to a search of his person. Officer Mills testified at trial that he asked Fair to exit the vehicle, asked permission to search his person, and that Fair voluntarily complied with these requests.[1] As soon as Fair exited the passenger side of the vehicle, Officer Mills testified that he asked Fair to place his hands on top of the vehicle and that Fair complied with his request. Officer Mills then testified that he “guided” Fair's hands into position on the roof of the car. According to Officer Mills, he proceeded to ask Fair to spread his legs, but Fair did not comply with this request. On cross-examination, Officer Mills acknowledged that he had to ask Fair two or three times to spread his legs before Fair complied. Officer Mills described Fair's body as “really tense, ” and stated that Fair was shaking as if he were nervous. Notwithstanding this information, Officer Mills admitted that he still lacked reasonable suspicion or probable cause to conduct the search.[2]

         After Fair complied with Officer Mills' request to spread his legs, Officer Mills testified that he began his search by searching the waistband of Fair's shorts, his pockets, and the exterior of the shorts along his outer thigh area.[3] Officer Mills stated that “[o]nce I started my search, he [Fair] first dropped his hands towards his waistband.” Defense counsel then asked if Officer Mills directed Fair to do anything with his hands at this point, and Officer Mills replied: “At that point I said hey whoa, whoa, whoa. Just relax, place your hands back on top of the vehicle.” Fair complied with this instruction; however, Officer Mills stated that “I started my search again, and he dropped them down a second time, real fast.” Defense counsel asked “[a]nd then what happened, what did you decide?” To which Officer Mills responded:

I pushed him against the vehicle and said, “Hey, whoa. Relax.
I don't know what's going on. You're making me really nervous. I'm going to put you in handcuffs. You're not under arrest. It's just for my safety.”

         When asked by defense counsel to describe how he came to push Fair, Officer Mills stated that “[a]s he's dropping his hands down rapidly to the waistband, I wanted to pin him up against the car so he couldn't get to the waistband.” Accordingly, Officer Mills stated that he “[g]rabbed [Fair's] arms, put them behind him, and then secured him in handcuffs.” After placing Fair in handcuffs, Officer Mills moved Fair to the back of Sergeant Griffith's patrol car, which was located directly behind the vehicle in which Fair had been a passenger. Officer Mills acknowledged, and it is not disputed, that at the moment he placed handcuffs on Fair he continued to lack reasonable suspicion or probable cause to search. Officer Mills also agreed the Fair did not have a choice on whether he would be placed in handcuffs. Moreover, Officer Mills testified that ...


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