United States District Court, M.D. Florida, Jacksonville Division
RANDY L. SPENCER, Plaintiff,
RYAN BUNTON, Defendant.
TIMOTHY J. CORRIGAN, UNITED STATES DISTRICT JUDGE
a former inmate of the Florida penal system, is proceeding on
a pro se Amended Complaint (Doc. 29) filed pursuant to 42
U.S.C. § 1983. Before the Court is Defendant's Motion
for Summary Judgment (Doc. 70) (Motion). The Court previously
advised Plaintiff of the provisions of Federal Rule of Civil
Procedure 56, and notified him that the granting of a motion
for summary judgment may foreclose subsequent litigation on
the matter. See Order (Doc. 31). Plaintiff filed a
Response (Doc. 73) (Response). The Court directed
supplemental filings on three issues, and as directed,
Defendant filed a Reply (Doc. 81) (Reply) and Plaintiff filed
a Sur-Reply (Doc. 82) (Sur-Reply). The Motion is ripe for
Plaintiff's Amended Complaint
On November 18, 2009, Sergeant (“Sgt.”) Ryan
Bunton, Badge #646, of the Columbia County Sheriff's
Office in Lake City, Florida, detained [Plaintiff] on an
alleged traffic infraction of “wide turn.” Bunton
claimed that he was informed by Dispatch that Plaintiff was
on “Parole, ” so Bunton ordered Plaintiff to exit
his vehicle for investigation in the absence of any
particularized suspicion that Plaintiff is committing, had
committed, or was about to commit a crime. Without warrant or
consent, Bunton ordered Plaintiff to move some fifteen (15)
feet to the rear of Plaintiff's vehicle, where Bunton
repeatedly searched Plaintiff's body and vehicle.
Consequently, Bunton arrested Plaintiff and transported him
to jail. The State Attorney nolle prossed the case on
December 5, 2009. The Parole Commission, following a
hearing, found the Plaintiff “not guilty” and
ordered him released from the Department of Corrections
(“DOC”) on January 27, 2010. However, because of
the illegal search and seizure and arrest of the Plaintiff by
Bunton, the DOC transferred Plaintiff to involuntary civil
commitment under the custody of Department of Children and
Family (“DCF”) on Florida Jimmy Ryce Act;
subjected Plaintiff to involuntary forensic psychiatric
examinations before [being] released on January 31, 2010.
But for the illegal search and seizure, the Plaintiff, for
some 75 days, suffered mental anguish by loss of liberty,
work and income, and family ties.
Complaint at 9-10. As relief, Plaintiff requests a
declaratory judgment and an award of $200, 000 “to
compensate for suffering mental anguish and punitive
damages.” Id. at 10-11.
Parties' Summary Judgment Positions
argues that Plaintiff did not suffer a constitutional
violation and he is entitled to qualified immunity. In
support of his arguments, Defendant submitted a partial
transcript of Plaintiff's deposition, the written warning
Plaintiff received for the traffic violation, an affidavit, a
property receipt for the Lortab pill, incident reports, and
an arrest affidavit. Defendant's affidavit regarding the
incident states in pertinent part:
At all times material to this case, I was a Sergeant on the
drug task force at the Columbia County Sheriff's Office.
On the evening of November 18, 2009, while on duty, I was
surveilling a residence as part of a drug task force. Officer
Mitchell Cline was with me. Prior to starting my shift that
night, I notified Sergeant (then, Corporal) Jackson, part of
the Sheriff's canine unit, of the area the drug task
force was surveilling and advised him to be in the area.
Sometime around or after 6:30pm, I observed a black Toyota
Four Runner drive by and make a very wide radius right turn
onto Charmont Street and continue to travel partially in the
wrong lane (the oncoming traffic lane.)
Thereafter, I initiated my emergency lights to conduct a
Once stopped and pulled over, I made contact with the driver,
Randy L. Spencer (Plaintiff), and asked for his license,
registration, and proof of insurance. Mr. Spencer complied.
I went back to my patrol vehicle and conducted a check of the
drivers license through Columbia County Sheriff's Office
dispatch and was advised that Mr. Spencer was currently on
parole for murder, cocaine sale, and burglary. I also
requested Sgt. Jackson and his canine unit, who were in the
immediate area, to come to the scene. Sgt. Jackson arrived in
less than two minutes from the request. In the meantime,
another deputy who was at the scene began writing the warning
While the warning citation was being filled out, Sgt. Jackson
had his narcotics dog sniff the exterior of the vehicle,
wherein the canine gave a positive alert to the presence of
Sgt. Jackson then informed me that the canine gave a positive
alert to the presence of illegal drugs.
I then conducted a search of the vehicle and located a white
pill with the markings M367 under the front passenger seat.
The pill was identified as a Lortab (Hydrocodone), a
controlled substance. . . . I collected the pill and later
placed it into evidence.
Mr. Spencer, who was the only occupant of the vehicle,
advised that he did not have a prescription for hydrocodone.
Mr. Spencer was then arrested for possession of a controlled
substance pursuant to Florida Statutes § 893.13 and
transported to the Columbia County Jail.
Doc. 70-3 at 1-3 (paragraph enumeration omitted).
completed an Arrest Affidavit dated November 18, 2009:
On the above listed date, I observed a black Toyota 4 Runner
turn right onto Charmont Street. The vehicle made a very wide
radius turn and continued to travel partially in the wrong
lane (oncoming traffic lane). I initiated my emergency lights
and attempted to conduct a traffic stop on the vehicle. The
vehicle continued to travel in the middle of the roadway
refusing to stop. After driving down Charmont Street for a
lengthy distance, the vehicle made an abrupt right turn and
then continued on for a few more yards in the ditch,
eventually coming to a stop. As I exited my vehicle I could
see the silhouette of the driver/defendant leaning toward the
passenger side of the vehicle. Officer Mitchell Cline, who
was with me during the stop, approached the passenger side of
the 4 Runner. I made contact with the driver, Randy L.
Spencer and asked for his license, registration, and proof of
insurance. Spencer complied. As he handed the requested items
to me I could plainly see his hands shaking badly. I
conducted a check of the drivers license through CCSO
dispatch and was advised that Spencer was currently on parole
for murder, cocaine sale, and burglary. I then requested Cpl.
K. Jackson assist with his K-9. Cpl. Jackson was in the
immediate area and arrived in less than two minutes from the
request. I started my warning citation for the stop and Cpl.
Jackson conducted a K-9 search of the vehicle. After the
citation was completed, Cpl. Jackson advised he had received
a positive alert by his K-9, and I could search the vehicle.
I then conducted a search of the vehicle and located a white
pill with the markings M367 under the front passenger seat
where I had seen Spencer leaning as he initially pulled to a
stop. The pill was identified as a Lortab (Hydrocodone). I
collected the pill and later placed it into evidence.
Spencer, who was the only occupant of the vehicle, advised he
did not have a prescription for the Lortab, but the vehicle
belonged to his sister and she might have a prescription for
them. Spencer was arrested and transported to CCJ. The
vehicle was released to the registered owner. There was also
$430.00 in U.S. currency in the center console of the
vehicle. Both Spencer and the registered owner of the
vehicle (Linda Hill) stated that the money was for the
vehicle car payment. The $430.00 U.S. currency was also
released to Hill.
Doc. 70-4 at 2-3 (capitalization omitted).
officer authored a statement regarding the incident:
On 11-18-09 I assisted Sgt. R. Bunton 646 with a traffic stop
at the corner of Beadie St. an[d] Charmont St. After K9 alert
the vehicle was searched and the driver Randy Spencer was
arrested. During the drive to the county jail Randy asked me
if he could “make a deal[.]” I advised him I was
not the one to make deals with but I would relay his request
to Sgt. Bunton. While I was speaking to Sgt. Bunton over the
phone[, ] Randy overheard him state that a small amount of
crack cocaine had also been located in the vehicle. Randy
then stated to me that he and another person, who he only
knew by nickname, had “cut up a quarter ounce of crack
cocaine” and that any found inside the vehicle was a
small amount that had fallen f[ro]m the cutting.
Doc. 70-4 at 9 (capitalization omitted). With his Reply,
Defendant submitted another affidavit that he subsequently
amended. Compare Doc. 81-1, with
Doc. 83. The amended affidavit provides some additional
Sometime around 6:30pm, I observed a black Toyota Four
Runner, which was later determined to be the vehicle Mr.
Spencer was driving. Thus, at 6:30pm, when I first observed
the black Toyota Four Runner, I was never
“dispatched” to respond to a call because I was
already on the scene. The “Time Dispatched” and
“Time Arrived” listed as “1830” are
defaulted times entered on the report that have no real
meaning because I was never dispatched to the scene and
because I was already at the scene when I first observed Mr.
At 6:34pm, I observed the black Toyota Four Runner make a
very wide radius right turn onto Charmont Street and continue
to travel partially in the wrong lane (the oncoming traffic
lane.) It is clear from the face of the traffic warning
citation that [the] time the violation occurred was 6:34pm.
Thereafter, I initiated my emergency lights to conduct a
To clarify, the time on the traffic warning citation as
6:34pm would not be the time that the traffic warning
citation was actually completed or issued to Mr. Spencer.
Rather, 6:34pm would be the time the traffic violation was
witnessed. The time the ticket was completed was after 6:34pm
and encompassed the time it took for Mr. Spencer to pull over
and stop; the time it took for me to approach Mr.
Spencer's vehicle and get his license and registration;
the time it took for me to return to my vehicle and conduct
a license and registration and outstanding warrants check,
including the time it took for Dispatch to respond back to me
and advise me that Mr. Spencer was on parole status for
various crimes; the time it took for me to request the K9
Unit that was already in the area to come to the scene; the
time it took me to return to Mr. Spencer's car and ask
him to get out of his vehicle for the safety of myself and
other officers at the scene, while we waited for the
completion of his warning citation; and the time to
physically write the citation itself.
The time recorded on the Property Receipt, “1834,
” was the time the traffic violation occurred, not the
time the controlled substance was actually discovered or
entered into evidence at the Sheriff's Office. . . .
Doc. 83 at 4-5 (paragraph enumeration omitted).
argues that “once a vehicle is stopped, the use of a
narcotics dog to sniff a vehicle does not constitute a search
and may be conducted during a lawful traffic stop.”
Motion at 6 (capitalization and emphasis omitted). Defendant
assumes in the Motion that Plaintiff does not contest
“the propriety of the traffic stop” itself, and
regardless, he states that when an officer observes a traffic
violation, he has probable cause to stop the vehicle.
Id. Defendant further argues that after a narcotics
dog alerts to the presence of illegal drugs in a vehicle, an
officer has probable cause to search the vehicle.
Id. at 8. Additionally, Defendant states that he had
probable cause to arrest Plaintiff for possession of a
controlled substance based on the loose Lortab pill that was
found in Plaintiff's vehicle. Id. at 9-11.
Finally, Defendant asserts that he is entitled to qualified
immunity because he had at least arguable probable cause to
search Plaintiff's vehicle and arrest him. Id.
disagrees with Defendant's contention that Plaintiff is
not challenging the propriety of the stop itself. Response at
6, 9-10. Plaintiff points to his statement of facts in the
Amended Complaint, where he indicated that Defendant detained
him on “an alleged traffic infraction, ” and to
his deposition testimony. Id. at 9-10.
Q. But did you get arrested for the wide turn?
A. To - - of course, Mendenhall,  you know, I felt
like I was not free to end the encounter when the police
officer came out with the gun. That's - - to me, I was
I understand the part about stopping for the traffic.
That's probable cause to stop for a traffic violation.
But once she told me about the ticket and the warning, I was
ready to go. I wasn't expecting this guy to come out with
a service gun pointed at me, saying, “Get out the
vehicle, ” and arresting me.
. . . .
Q. And you said you agree there was probable cause for the
warning for the wide turn but not - - A. I didn't - -
I'm not agreeing with that. I'm saying I understand
the reason for the momentary seizure, where they're
saying police have the course of duty to seize a person if
he's saying they committed an infraction. That's what
he's alleging. And they say there was a warning. I
didn't appeal that, of course, or nothing like that.
Q. Okay. Well, you did the habeas ...