United States District Court, W.D. Arkansas, Fayetteville Division
MEMORANDUM OPINION AND ORDER
TIMOTHY L BROOKS DISTRICT JUDGE
before the Court is the Report and Recommendation
("R&R") (Doc. 70) of the Honorable Erin L.
Setser, United States Magistrate Judge for the Western
District of Arkansas, regarding Defendants Sheriff Tim
Helder, Major R. Hoyt, Officer D. Melancon, and Officer T.J.
Rennie's Motion for Summary Judgment (Doc. 28) and Brief
in Support (Doc. 29). Plaintiff Benny Matthew Gover submitted
a Brief in Opposition to the Motion (Doc. 34). Following
that, Judge Setser held a hearing on the Motion on June 7,
2016, and Mr. Gover gave testimony at that time. The R&R
was filed on July 29, 2016, and Mr. Gover submitted
Objections (Doc. 71) on August 11, 2016, as well as a
document called "Plaintiffs Statement in Open
Court" (Doc. 72), which the Court has treated as
additional objections to the R&R. Then, on August 18,
2016, Mr. Gover filed a document entitled "Addendum:
Appeal to Magistrate" (Doc. 73), which the Court has
also treated as additional objections.
Court has performed a de novo review of the record
on summary judgment, including the audio recording of the
hearing conducted by Judge Setser, and the audio and video
recordings that were presented as evidence during the
hearing. Accord Taylor v. Farrier, 910
F.2d 518, 521 (8th Cir. 1990) (finding that de novo
review of a magistrate judge's evidentiary hearing
requires district court to read full transcript or other
verbatim record of proceedings). Based on its review of the
record, the Court will ADOPT IN PART AND DECLINE TO
ADOPT IN PART the R&R for the reasons explained
the "Background" section of the R&R contains a
fair and accurate recounting of the facts at issue, the Court
will summarize or restate some of those facts below in order
to provide context for the analysis to follow. Mr.
Gover's lawsuit, brought pursuant to 42 U.S.C. §
1983, concerns his allegation that his Fourth and Fourteenth
Amendment rights were violated as a result of a traffic stop
that occurred on February 24, 2014. Mr. Gover believes the
initial stop was unsupported by probable cause. He further
contends that his detention was unlawfully extended in order
for a K-9 unit to be summoned to the scene to perform a drug
sniff around the exterior of his vehicle. He argues that
there was no reasonable suspicion of criminal activity
sufficient to justify the K-9 sniff.
respect to Defendants Helder and Hoyt, Mr. Gover maintains
that they are personally liable under § 1983 as
supervisors of Officers Melancon and Rennie, who conducted
the traffic stop and K-9 sniff in question. In particular,
Mr. Gover speculates that Sheriff Helder, along with Major
Hoyt, directed Officer Melancon to initiate the traffic stop
or otherwise approved of his actions during the stop, and
also directed and/or approved of Defendant Rennie's
actions in performing the K-9 sniff. Mr. Gover believes
Sheriff Helder is personally involved in these events because
he is biased against Mr. Gover as a result of a letter Mr.
Gover sent him and all Arkansas sheriffs in 2013, which
demanded, among other things, that they proceed to a website
and swear an online oath to uphold the Constitution.
See Doc. 30-4, pp. 8-9.
Helder revealed in the course of this litigation that he
never responded to Mr. Gover's letter, but did forward it
to the head of the local Joint Terrorism Task Force.
See Doc. 30-5, p. 2. Armed with that knowledge, Mr.
Gover now suspects that Sheriff Helder directed his
subordinates to conduct surveillance on him and closely
scrutinize his movements. Mr. Gover also claims that in the
two weeks leading up to the traffic stop at issue, he saw
significantly more police officers patrolling the streets of
his community. From this, he gathers that Sheriff Helder
and/or Major Hoyt must have ordered the County's traffic
officers to keep a close watch on him. See Brief in
Opposition to Summary Judgment, Doc. 34 ("[Sheriff
Helder] sent my letter to the terrorist task force officer
for follow up and action, to include my name on the terror
watchlist for further harassment: later; I saw several
deputies eyeing me, like never done before-I hardly ever saw
them, and they never paid me any attention, until after the
letter: this statement I make in full truth!" (emphasis
Helder submitted an affidavit in support of his request for
summary judgment. (Doc. 30-5). In it, he explains that he was
not personally involved in the traffic stop that is the
subject of the Complaint. Id. at p. 1. He admits
that he received Mr. Gover's letter to all Arkansas
sheriffs in 2013, but maintains that his only response was to
"forward[ ] the letter to Deputy Brian Comstock who is
assigned to the local Joint Terrorism Task Force."
Id. at p. 2. Sheriff Helder claims that he "had
never met Mr. Gover and did not immediately associate
him" with the 2013 letter at the time Mr. Gover
contacted the Sheriffs office "in mid to late 2014"
to follow up on the citizen complaint he filed about the
traffic stop. Id. Mr. Gover met Sheriff Helder
personally to discuss the traffic stop and his citizen
complaint. Id. Otherwise, Sheriff Helder had no
other contact with Mr. Gover and denies that he instructed
his subordinates to watch, investigate, or stop Mr. Gover for
no reason. Id.
Hoyt's affidavit also confirms that he was not aware of
Mr. Gover until after he filed the citizen complaint "in
mid-2014." (Doc. 30-1, p. 1). He further states that he
"was not aware of or involved in the traffic stop that
occurred on February 24, 2014, which is the subject of this
suit, at the time it occurred"; and he was not aware of
"any directive from the Sheriff or any other person or
agency suggesting that Mr. Gover should be watched,
investigated, or stopped for no reason." Id.
Finally, Major Hoyt avers that he "was not familiar with
a letter allegedly sent to Sheriff Helder by Mr. Gover before
the traffic stop at issue herein (estimated 2013) until Mr.
Gover sent a purported copy to [him] in correspondence dated
December 19, 2014." Id. at p. 2.
the alleged liability of Officer Melancon, Mr. Gover
maintains, first, that the officer lacked probable cause to
initiate the traffic stop in the first place. Second, Mr.
Gover asserts that Officer Melancon lacked reasonable
suspicion to continue to detain him after the traffic-related
investigation had concluded, and then summon a K-9 unit to
perform a drug sniff. Mr. Gover also believes Officer Rennie,
the K-9 officer who responded to Officer Melancon's
request for assistance, violated Mr. Gover's
constitutional rights by conducting the drug sniff without
reasonable suspicion of illegal drug activity.
the traffic stop at issue, Officer Melancon pulled Mr. Gover
over for having expired license plate tags. Although Mr.
Gover questions how Officer Melancon could have possibly seen
his tags prior to pulling him over, Mr. Gover does not
dispute that his tags had, in fact, expired. Mr. Gover
testified at the summary judgment hearing that Officer
Melancon told him that he planned to give him a warning for
the expired tags. However, shortly after Officer Melancon
took Mr. Gover's driver's license and ran a search of
his criminal history, he learned that the driver's
license had been cancelled-as opposed to having been
suspended or revoked. It appears that when Mr. Gover moved
from Washington, D.C. to Northwest Arkansas the previous
year, he had attempted to transfer his driver's license
from one jurisdiction to the other, and the transfer did not
take place properly. The confusion regarding Mr. Gover's
driver's licence did not seem to concern Officer
Melancon, however, as the traffic stop footage shows him
reassuring Mr. Gover that he was "not worried about it
that much." Officer Melancon also advised Mr. Gover that
he would need to visit the state Revenue Office to take care
of both his expired tags and his cancelled license.
point during the traffic stop, Officer Melancon's
background search of Mr. Gover's criminal history
revealed that he had a prior conviction from 2011 for
possession of marijuana. This prior conviction, by Officer
Melancon's own admission, was a factor in his later
determination that there was reasonable suspicion to detain
Mr. Gover further and request a K-9 sniff of his vehicle.
See Doc. 68-1, p. 2.
police dashboard camera that recorded the traffic stop
reveals that Officer Melancon pulled Mr. Gover over at 10:33
a.m. At 10:47 a.m., after Officer Melancon ran a search on
Mr. Gover's license and discovered his prior drug
conviction, he asked Mr. Gover if he could search his car.
Mr. Gover refused. At 10:49 a.m., Officer Melancon called for
a K-9 unit to come to the scene, and Officer Rennie answered
the call. Deputy Melancon's affidavit explains that he
felt there was reasonable suspicion to extend the traffic
stop and call a K-9 unit to the scene because: (1) Mr. Gover
had a prior conviction for possession of marijuana; (2) Mr.
Gover seemed "agitated and argumentative" while
being questioned; (3) Mr. Gover demonstrated an "abrupt
change in behavior" after Officer Melancon began asking
about his driver's license; and (4) Mr. Gover showed
visible signs of nervousness, including shaking hands and
complaining of a dry mouth. Id. at p. 2.
Rennie and the K-9 unit arrived at 11:02 a.m. Officer
Melancon states in his affidavit that while on the phone with
Officer Rennie requesting his assistance, Officer Melancon
"described [his] observations and the details of [his]
reasonable suspicion. Id. at p. 2. Officer Melancon
also claims that, while on the phone, Officer Rennie
"[c]onfirm[ed] [Officer Melancon's] conclusion"
that there was reasonable suspicion to conduct the K-9 sniff.
Id. Then, after Officer Rennie arrived on the scene
with the ...