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Trammell v. Cornelison

United States District Court, W.D. Arkansas, Fayetteville Division

March 2, 2017

STEVEN E. TRAMMELL PLAINTIFF
v.
JONATHAN CORNELISON, Deputy, Madison County Sheriff's Department DEFENDANT

          REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

          HON. MARK E. FORD UNITED STATES MAGISTRATE JUDGE.

         This is a civil rights action filed by the Plaintiff pursuant to 42 U.S.C. § 1983. He proceeds pro se and in forma pauperis.

         Plaintiff 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.

         Defendant 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 recommendation.

         Plaintiff 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.

         I. Background

         On February 17, 2015, [1] 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.[2] Defendant was in an unmarked patrol car. Id.

         As 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.

         Plaintiff 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. Id.

         Defendant 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.

         A 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.

         On 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.

         Plaintiff 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.

         On 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.

         On 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, [3] and its contents reported. Deft's Ex. A-1 at 24-29.

         Plaintiff's 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.[4] 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 ...


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