United States District Court, W.D. Arkansas, Fayetteville Division
STEVEN E. TRAMMELL PLAINTIFF
JONATHAN CORNELISON, Deputy, Madison County Sheriff's Department DEFENDANT
REPORT AND RECOMMENDATION OF THE MAGISTRATE
MARK E. FORD UNITED STATES MAGISTRATE JUDGE.
a civil rights action filed by the Plaintiff pursuant to 42
U.S.C. § 1983. He proceeds pro se and in
is incarcerated in the Arkansas Department of Correction. The
events at issue in this case occurred in Madison County,
Arkansas. Plaintiff maintains his civil rights were violated
when, following a traffic stop and his arrest, the Defendant
used the cell phone Plaintiff had with him to attempt to set
up drug sales.
filed a motion for summary judgment (Doc. 39). A hearing was
held on October 13, 2016, to allow Plaintiff to testify in
response to the motion. Plaintiff appeared by video. At the
conclusion of the hearing, the case was taken under
advisement pending the preparation of this report and
indicated he wished to submit exhibits to the Court. He has
done so (Doc. 43). Defendant objects to exhibits 2 and 4
(Doc. 44). Exhibit two appears to be screen shots taken from
a cell phone. However, the photographs are not authenticated
in anyway. The Court will not consider this exhibit. Exhibit
four purports to be an unsworn statement from Gwen Roberson.
The statement will not be admitted as it is not sworn to
under penalty of perjury. Exhibits one and three are admitted
although they appear to be duplicates of exhibits already
introduced into evidence by Defendant.
February 17, 2015,  Defendant witnessed a hand to hand
transaction between an individual, later identified as the
Plaintiff, and an individual, later identified as Dianna
Manning, in a Wal-Mart parking lot. Deft's Ex.
A-1 at 34-35. Defendant was in an unmarked patrol car.
Plaintiff was pulling out of the parking lot, Defendant
recognized him and knew he was driving on a suspended
driver's license, had warrants for his arrest, and did
not have his seat belt on. Deft's Ex. A-1 at 35.
Defendant conducted a traffic stop. Id.
was arrested and placed in the patrol car. Deft's
Ex. A-1 at 35. He was placed in custody on warrants from
the City of Springdale and Washington County, possession of
marijuana, driving on a suspended drivers license, and not
wearing a seat belt. Id. at 1-6. Plaintiff stated,
without being asked, that he would not consent to a search of
his vehicle. Id. Defendant retrieved his k-9 unit.
Id; see also Deft's Ex. 2 at 6. The k-9 gave a
positive identification on the driver's side door.
located “between the driver's seat and the back
rest” a container with 11 OxyContin pills, a wrapper
with two OxyContin pills, a hand rolled marijuana cigarette,
and a baggie containing methamphetamine. Deft's
Ex. A-1 at 35. Plaintiff also had $612. Id.
confiscation report was filled out for $612 in cash being
held by the Madison County Sheriff's Office. Id.
at 30, 46. The evidence seized from Plaintiff's vehicle
was sent to the State Crime Laboratory for analysis.
Id. at 36, 39. The evidence was confirmed to be
methamphetamine, oxycodone, and marijuana. Id. at
50. Plaintiff did not oppose the forfeiture of the money, and
a consent judgment was entered on August 18, 2015.
Id. at 48-49.
February 18, 2015, Plaintiff was charged with possession of
methamphetamine or cocaine, three counts of possession of
Schedule I or II controlled substances, possession with
intent to deliver, use of a communication device to
facilitate drug activity, and as a habitual offender.
Deft's Ex. A-1 at 33. Plaintiff was released to
the Washington County Detention Center and went back and
forth between various facilities a number of times.
Id. at 1-19.
had a cell phone with him when he was arrested.
Deft's Ex. A-1 at 35. On February 18, 2015,
Judge Joanna Taylor issued a search warrant on the cell phone
for “information concerning the trafficking of
narcotics from the digital data from the phone including
contacts, incoming or outgoing phone calls, incoming or
outgoing text messages, incoming or outgoing SMS, incoming or
outgoing e-mails, stored media, pictures, videos, and
audio.” Id. at 43. The warrant was to be
served between 6:00 a.m. and 8:00 p.m., not to exceed three
days, and the property was to be returned to the judge, no
later than five days after execution of the warrant.
Id. The warrant was returned on February 24, 2015.
Id. at 47.
February 18, 2015, Defendant located several text messages
that mentioned selling drugs to people. Deft's
Ex. A-1 at 35. One of the messages was sent to Plaintiff
right before he met Manning at Wal-Mart. Id. at 36.
February 18, 2015, Defendant submitted a preliminary report
form to the Office of the Prosecuting Attorney regarding the
facts to establish probable cause that a crime was committed
by the Plaintiff. Deft's Ex. A-1 at 44. A
digital examination of Plaintiff's phone was completed by
Russell Alberts on February 21, 2015,  and its contents
reported. Deft's Ex. A-1 at 24-29.
phone contained text messages from Beverly Ball.
Deft's Ex. A-3 at 10. On February 19, 2015, Ball
sent Plaintiff a text message asking for methamphetamine or
“white” as she referred to it. Id.;
see also Deft's Ex. B at 37. She wanted to
meet in the Butterball parking lot. Deft's Ex.
A-3 at 10. Someone texted her back. Deft's Ex. B
at 37. Defendant located Ball on Highway 23 North and
confirmed with dispatch that she was driving on a suspended