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Tubbs v. Garland County

United States District Court, W.D. Arkansas, Hot Springs Division

March 9, 2018

BRANDON MICHAEL TUBBS PLAINTIFF
v.
GARLAND COUNTY, ARKANSAS, et al. DEFENDANTS

          OPINION AND ORDER

          P.K. HOLMES, III CHIEF U.S. DISTRICT JUDGE

         Before the Court is Defendants Garland County, Arkansas, Anthony J. Tart, Eric Wilhite, and Chris Hays's[1] joint motion (Doc. 43) for summary judgment. Defendants have filed a memorandum brief (Doc. 44) and statement of facts (Doc. 45) in support. Plaintiff Brandon Michael Tubbs filed a response (Doc. 50) and a statement of facts (Doc. 51) and memorandum brief (Doc. 52) in support of his response. Defendants filed a reply (Doc. 53). The motion for summary judgment will be granted.

         I. Facts and Background[2]

         On April 17, 2014, an anonymous source contacted Little Rock Police Department Detective Barry Flannery[3] about a suspicious package being sent from “Calvin Shrader” in Carmichael, California to “Eric Carter” at 14302 Taylor Loop Road in Little Rock, Arkansas. Flannery contacted UPS central region security representative Kim Taylor[4] about the package. Taylor advised Flannery that the intended recipient had redirected the package from the Little Rock delivery address to 1120 Lakeshore Drive, Hot Springs National Park, Arkansas.

         At that time, 1120 Lakeshore Drive was a rental property owned by Joe Calhoun and leased to Tubbs. Tubbs's girlfriend, Meiaca Black, and her daughter lived with him at the property. Tubbs also allowed Steven Swannigan-the son of a couple from Tubbs and Black's church-to use the spare bedroom on a temporary basis, starting in early 2014. Swannigan had been released from prison and did not want to stay with his parents. He primarily stayed with girlfriends, but kept property in Tubbs's spare bedroom, returning only to get clothes.

         Following the communication between Flannery and Taylor, UPS pulled the package aside and held it from delivery. A law enforcement K-9 unit was dispatched from the Cammack Village, Arkansas Police Department. The package was placed among an assortment of other packages, and the K-9 indicated that the package addressed to Eric Carter contained narcotics. A search and seizure warrant was issued for the package, which was opened. The package contained approximately 1.41 pounds of methamphetamine.

         Members of the 18th Judicial District East Drug Task Force (“Drug Task Force”) formulated a plan in which a member of the Little Rock Police Department narcotics squad would make an undercover delivery of the package, containing a representative quantity of methamphetamine, to the 1120 Lakeshore Drive address, and require a signature for acceptance. Following delivery, law enforcement would secure the premises, execute the search warrant, and arrest Eric Carter. The plan is detailed in the most relevant portion of the affidavit in support of the search warrant:

Affiant Flannery prepared a search and seizure warrant for the package and the warrant was reviewed and signed by the Honorable Judge Alice Lightle. The affiant opened the package and found it to contain approximately 1.41 pounds of methamphetamine inside the package.
A plan has been formulated by members of the 18th Judicial District East Drug Task Force in which a member of the Little Rock Police Department Narcotics Squad will deliver the package addressed To: Eric Carter, 1120 Lakeshore Drive, Hot Springs National Park, Arkansas, 71913, and displaying tracking number 1ZVY28500166020017. Affiant Hays placed a representative sample of methamphetamine inside the package with a weight of approximately 1 ounce. At the time of delivery, the undercover Detective will have the person sign for acceptance for the package at the residence. After the package is delivered, members of the Hot Springs Police Department SWAT team will secure the residence and occupants at 1120 Lakeshore and the 18th Judicial District East Drug Task Force, Little Rock Police department [sic] and the DEA will execute the Search Warrant and arrest the person who identified himself or herself as the person to whom the parcel was addressed.

(Doc. 45, p. 2). Flannery and hays applied for a warrant to effect this plan, and the Honorable Lynn Williams, Judge of the Circuit Court of Garland County, Arkansas, issued a search warrant on April 18, 2014.

         Later that day, the Drug Task Force and other law enforcement officers began executing the plan. An undercover officer from the Little Rock Police Department narcotics squad, disguised as a delivery driver for UPS, drove with the package to 1120 Lakeshore Drive, while other officers waited away from the residence. When the undercover officer arrived, Tubbs was outside mowing his lawn. The undercover officer approached Tubbs bearing the package, and asked if he was Eric Carter. Tubbs replied he was not, and suggested that the undercover officer might have the wrong address. The undercover officer said Tubbs's address was on the package. Tubbs identified himself and said he was the one who lived at 1120 Lakeshore Drive, and he did not know Eric Carter. The undercover officer handed the package to Tubbs and told him to sign for it. Tubbs knew that one of Swannigan's girlfriends was expecting a package of books, and told the undercover officer that the package seemed too light to be books. The undercover officer told Tubbs multiple times to sign for the package. Despite his initial refusal to do so, Tubbs eventually accepted the package, signing his own name and placing the package on the porch, intending either to give it to Swannigan's girlfriend or return it to UPS. Tubbs then went back to mowing.

         The undercover officer communicated to the rest of the law enforcement team that the package had been delivered. A few minutes later, a van pulled up and the SWAT team and other law enforcement officers began to execute the search warrant. Tubbs was directed to the ground at gunpoint. Arkansas State Police Trooper Scotty Dodd[5] then handcuffed Tubbs, and officers breached the front door at 1120 Lakeshore Drive, deployed a flashbang grenade to the interior, and entered, taking the package and Tubbs inside. Dodd, along with Hays and Wilhite, took Tubbs to the living room and interrogated him. Dodd threatened Tubbs with excessive prison time and prison rape during the interrogation, while Dodd, Hays, and Wilhite continued to ask questions about criminal activity. Tubbs was also asked about Swannigan, and suggested the package might be his.

         While Tubbs was interrogated, remaining law enforcement officers searched the house. Tubbs was the only person there. Officers found several firearms and ammunition, including a handgun which belonged to Tubbs in the master bedroom. The remainder of the firearms were found in the spare bedroom used by Swannigan. Officers also found two mobile phones, a number of pills, and a yellow cup containing a white crystal substance that tested positive for methamphetamine. The controlled substances were found in the spare bedroom. During the search, officers found business papers and various pieces of mail addressed to either Tubbs or Black. None bore Swannigan's name.

         Officers had Tubbs attempt a call to Swannigan to tell him the package had arrived. Swannigan denied knowledge of any package and hung up. When Tubbs called back, Swannigan again hung up.

         Tubbs was arrested, taken to Garland County jail, and charged by information in the Circuit Court of Garland County, Arkansas with Trafficking a Controlled Substance, Simultaneous Possession of Drugs and Firearms, and Unauthorized Use of Another Person's Property to Facilitate Certain Crimes. Tubbs bonded out on April 22, 2014, and the charges were nolle prossed on March 9, 2015.

         Tubbs filed the instant lawsuit under 42 U.S.C. § 1983 on March 24, 2017, claiming that Defendants violated his Fourth, Eighth, and Fourteenth Amendment rights when they arrested him and searched his home. Tubbs also asserts state law claims for violations of ...


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