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Riggs v. Gibbs

United States District Court, W.D. Missouri, Western Division

September 29, 2017

MICAH B. RIGGS, Plaintiff,
ROBERT GIBBS, et al., Defendants.


          Fernando J. Gaitan, Jr. United States District Judge.

         Pending before the Court are (1) Defendant Gary Majors' Motion for Summary Judgment (Doc. No. 158); (2) Motion for Summary Judgment for Defendants Kansas City Missouri Board of Police Commissioners, Gibbs, Onik, Dumit, Whaley, Toigo, Taylor, Barbour, Feagans and Martin (Doc. No. 160); and (3) Plaintiff's Motion for Partial Summary Judgment as to Defendants' Liability (Doc. No. 156). As an initial matter, plaintiff's request for oral argument will be denied.

         I. Background

         Plaintiff filed the pending action on August 1, 2014. Plaintiff's amended complaint was filed on February 24, 2015 (Doc. No. 43). Plaintiff Micah Riggs is the former owner of a business named “Coffee Wonk” located in midtown, Kansas City. On three separate occasions, certain of defendants searched plaintiff's business, allegedly finding synthetic marijuana. Plaintiff was prosecuted in state court for (1) intent to create a controlled substance; (2) possession of drug paraphernalia with intent to distribute; and (3) possession with intent to distribute the controlled substance JWH-018. Prior to trial, the possession of drug paraphernalia charge was dropped. Plaintiff was acquitted of possession with intent to distribute JWH-018, and had a hung jury on intent to create a controlled substance. The prosecutor's office subsequently dropped the charge for intent to create a controlled substance. Plaintiff has filed the current action, challenging the legality of the searches and other actions taken by defendants.

         Defendants Alvin Brooks (hereinafter, “Commissioner Brooks”), Michael Rader (hereinafter, “Commissioner Rader”), Angela Wasson-Hunt (hereinafter, “Commissioner Hunt”), David Kenner (hereinafter, “Commissioner Kenner”), and Mayor Sly James (hereinafter, “Commissioner James”) are sued in their official capacities as duly appointed members of the Board of Police Commissioners of Kansas City, Missouri. Defendant Gary Majors was at all relevant times the manager of Regulated Industries of Kansas City, Missouri. Defendant Detectives Robert Gibbs, Chris Onik, Alan Whaley, Teddy Taylor, and Christopher Toigo are sued in their individual and official capacities. Defendant Sergeant Brad Dumit is sued in his individual and official capacities. Defendant Officers Jason Martin, Michael Feagans, and David Barbour are sued in their individual and official capacities.

         Plaintiffs' amended complaint contains seven counts: Count I: Claim Under 42 U.S.C. § 1983 for Malicious Prosecution, Illegal Search and Seizure, Filing of Falsified Court Documents, and Forging Consent to Search Forms (Against Gary Majors and Detectives Gibbs, Whaley, Onik, Dumit, Toigo, and Taylor, Officers Martin, Barbour, and Feagans, and The Board of Police Commissioners of Kansas City, Missouri); Count II: Claim Under 42 U.S.C. § 1983 for Conspiracy (Against Gary Majors and Detectives Gibbs, Whaley, Onik, and Dumit, and Officer Martin); Count III: Claim Under 42 U.S.C. § 1983 for Conspiracy (Against Detectives Toigo and Taylor, and Officers Barbour and Feagans); Count IV: Claim Under 42 U.S.C. § 1983 for Violative Policies, Practices and Procedures (Against The Board of Police Commissioners of Kansas City, Missouri); Count V: Claim Under Missouri Common Law for Malicious Prosecution (Against Gary Majors and Detectives Gibbs, Whaley, Onik, Dumit, Toigo, and Taylor, Officers Martin, Feagans, and Barbour, and The Board of Police Commissioners of Kansas City, Missouri); Count VI: Intentional Infliction of Emotional Distress (Against Detectives Gibbs, Onik, Dumit, and Martin); and Count VII: Negligent Infliction of Emotional Distress (Against Detectives Whaley, Gibbs, Onik, Dumit, and Martin).

         II. Facts

         A. Introduction

         Mr. Riggs brings this § 1983 claim against Defendants for violations of his Fourth Amendment Rights, malicious prosecution, and various other claims. In 2009, Mr. Riggs opened Coffee Wonk, a business at 3535D Broadway, Kansas City, MO 64111, which sold coffee, herbal incense, and potpourri. Mr. Riggs owned another business, the Wonk Exchange smoke shop, in the same building. Mr. Riggs also rented an office room, Suite 201, one floor above Coffee Wonk. On three separate occasions certain Defendants searched Mr. Riggs' businesses and seized his property. On September 27, 2010, Detectives Christopher Toigo and Teddy Taylor seized Syn incense from Coffee Wonk. That same day, Officers David Barbour and Michael Feagans entered and/or searched Suite 201. On October 3, 2012, Sergeant Brad Dumit, Detectives Robert Gibbs and Chris Onik raided Coffee Wonk without a warrant and seized all of Mr. Riggs' inventory. On February 11, 2013, Detective Gibbs obtained a search warrant for Coffee Wonk, which was executed on February 12, 2013.

         All of the raids involved allegations that Mr. Riggs was selling “K2”- which he asserts he was not. “K2” is a slang term for several controlled substances. K2 is also a brand name for a product that previously contained JWH- 018. K2 itself is not illegal under the Missouri Revised Statutes. See R.S. MO. § 195.017.

         B. The September 27, 2010, Incidents

         i. Defendants Feagans and Barbour

         On September 27, 2010, Officers Barbour and Feagans received a burglary call for a business at 3535 Broadway. Some office spaces had broken glass fronts, and there was yellow powder everywhere from a fire extinguisher up and down the hallways. It appeared also that other units were damaged, although plaintiff disputes that Suite 201 was damaged. When they arrived, they proceeded to Suite 200 and interviewed the business owner, Julie Porter, who had reported the burglary. The officers investigated the burglary and were unable to find the perpetrator. A short time later, they met Christopher Long, the building manager for 3535 Broadway. After initially meeting Mr. Long, Officer Barbour began to search the second floor of the office suite.

         Plaintiff asserts that Barbour asked Mr. Long to unlock the door to Suite 201. Defendants controvert this statement, saying that Mr. Long informed Officer Barbour that the occupant that owned the location with the robbery rented a suite and wanted Mr. Long to check on it. Plaintiff, on the other hand, argues that Mr. Long had made no statement to the police that would indicate that Mr. Riggs wanted the police to check on Suite 201. Plaintiff further states that he had not given permission to Mr. Long to open the door to the suite. Regardless, Mr. Long opened the door to the suite.

         When Mr. Long opened the door to Suite 201, Officer Barbour saw lab equipment. Officer Barbour then contacted the Metro Meth Drug Task Force to process the lab. After the Task Force arrived, Officer Barbour provided security to the suite. The task force did not have plaintiff's consent to search Suite 201.

         Prior to Mr. Long opening Suite 201, there were no signs of entry. Officer Feagans assumed that the burglar had left the office of Julie Porter. Officer Barbour had no specific reason to believe that the burglar was still in the building. Officer Barbour did not have his gun drawn during his search of the office complex with Mr. Long. When Officer Barbour first observed the lab, he did not see anything that led him to believe that it was illegal or an active meth lab. However, Defendant Barbour observed chemicals with a skull and cross-bone, and believed that they were dangerous, so he indicated he left the door open to vent. Jason Kennedy, a chemist who responded with the Task Force, did not know what type of a lab was in Suite 201.

         Plaintiff does not dispute that the lab was not safe even though there were no open flames or bottles. Most of the chemicals in suite 201 were very unsafe to not have in the proper environment. There was a canister with a label that said it spontaneously ignited with air. There were several solvents that were highly flammable, and toxic reagents present, as well as others that if not handled properly would ignite if in contact with water or the wrong substance. Officers Barbour and Feagans decided it was better to contact somebody with more knowledge so they contacted Metro Meth. Items recovered from suite 201 tested positive for JWH-018. JWH-018 was considered a controlled substance (MO Statute §195.017).

         ii. Defendants Toigo and Taylor

         Also on September 27, 2010, Detective Toigo, who was assigned to the robbery unit, received a call that a robbery had occurred at Coffee Wonk. When Detective Toigo arrived, he interviewed the store clerk present for the robbery and began processing the scene. Det. Toigo looked behind the counter for fingerprints, and along the path of where the robbery suspect traveled. During his canvas, Detective Toigo went to the parking garage adjacent to the building and encountered Syn incense that had been stolen. Detective Taylor received a call from Detective Toigo, who informed Detective Taylor of the robbery and the Syn incense. Detective Yale Acton responded to the scene with Detective Taylor. At the scene, Detective Toigo showed Detective Taylor the packages of Syn incense behind the counter at Coffee Wonk.

         At some point, Mr. Riggs arrived on the scene, and he and Detective Toigo engaged in casual conversation related to the robbery. During these discussions, Detective Toigo obtained a written consent to search from Mr. Riggs. Mr. Riggs asserts he was told this consent was for Wonk Exchange, but argues that Toigo or Taylor added “Suite 201” to the address after Mr. Riggs signed it. Defendants controvert that this is what occurred. Plaintiff asserts that later on, Detectives Toigo and Taylor forged his signature on a consent to search Wonk Exchange, misspelling his printed name as “Michah Riggs.” Again, defendants controvert this argument, saying that defendant Taylor filled out the form completely, and did not sign plaintiff's name on the form. Taylor testified he was standing next to plaintiff when plaintiff signed the consent to search form. Detectives Toigo, Taylor, and Acton seized the Syn incense behind the counter. Plaintiff Riggs argues he did not consent to the officers seizing all of the Syn behind the counter; defendants, however, indicate that plaintiff signed the consent to search.

         Before September 27, 2010, Detective Taylor had not received any training regarding K2, had not seen it in the field, and had no experience with K2 in general. Detective Taylor had never before encountered nor heard of Syn brand incense. It was not immediately apparent to Detective Toigo that the Syn incense was illegal. Detective Acton's experience with K2 and synthetic marijuana at this time was limited. It was not immediately apparent to Detective Acton that the Syn incense was illegal.

         While searching Suite 201, the police encountered Philrey Pamatmat, a chemist for plaintiff. Defendants indicate Mr. Pamatmat told Det. Acton that he was hired by plaintiff to try to create a legal version of the analogue for K2 or synthetic cannabinoid; plaintiff, however, indicates that he hired Pamatmat to test the products that were sold in Coffee Wonk. Acton also indicated that Pamatmat told him that Coffee Wonk was selling Syn incense, which led Acton to believe there was a possibility that the packets would contain an illegal version of a synthetic cannabinoid. The information that Det. Acton had up to that point was that people were taking anything from potpourri to different plant growth, spraying chemical on it, packaging it up and distributing it.

         Seth Cooper, a member of the task force that responded to Suite 201, attempted to field test some Syn found in Suite 201. At the time, there was not a good field test for those synthetic cannabinoids. This field test was not performed on the incense seized from behind the counter. Mr. Cooper, however, recognized the packets behind the bar as Syn brand, which he had been seeing in the Kansas City area. At the time, not all synthetic cannabinoids were illegal, and alleged K2 packets did not consistently test positive for controlled substances. The crime lab did not keep records of what types of alleged K2 tested positive for controlled substances. Cooper had tested Syn packets before, and most came back as containing JWH-018 and JWH -073. Plaintiff notes, however, that on the date of the seizure, JWH-018 and JWH-073 had been controlled for less than a month under Missouri law. Items recovered by Det. Acton from the Coffee Wonk tested positive for JWH- 018.

         C. The October 3, 2012 raid

         On October 3, 2012, Detectives Gibbs and Onik and Sergeant Dumit seized property from Coffee Wonk without a warrant. Sergeant Dumit was a supervisor in the Vice section. Det. Onik was a vice detective assigned to Narcotics and Vice division. Det. Whaley was a detective in the Vice unit. Det. Gibbs also was a detective in the Vice unit. The vice unit investigates prostitution, gambling, alcohol and tobacco violations, human trafficking and adult bookstores. Det. Gibbs was responsible for the investigation of places that sold alcohol.

         i. Defendant Gary Majors

         Gary Majors was the manager of Regulated Industries, the city authority in charge of regulating, among other things, liquor licenses. Defendant Majors served as the Manager of Regulated Industries from September 17, 2007, until March 2, 2013. Regulated Industries is a division of the City of Kansas City, Missouri's Neighborhood and Community Services Department. Regulated Industries works with the Kansas City Police Department (hereinafter “KCPD”) and other law enforcement and regulatory agencies. Majors received a tip from an acquaintance that a business at 35th and Broadway with “coffee” in its name was selling K2. Defendant Majors did not directly contact the KCPD; instead, he instructed the Regulated Industries Lead Investigator, Gerald Countz to contact the KCPD regarding the tip. Defendant Majors searched the electronic database maintained by Regulated Industries and determined that an establishment named “Coffee Wonk” at 3535 Broadway had a liquor license. Thereafter, on September 19, 2012, Gerald Countz emailed Detective Brad Dumit and Detective Robert Gibbs at the KCPD regarding the tip received by Defendant Majors and that the Coffee Wonk sold alcohol. At some later time, Defendant Majors determined that Coffee Wonk did not have a liquor license. Defendant Majors admits that once it was determined that the Coffee Wonk did not have a liquor license, he did not make an attempt to correct the incorrect statement made in Gerald Countz's September 19, 2012 email.

         Detective Robert Gibbs, who received the complaint from Mr. Majors's office, did not independently check whether Coffee Wonk had a liquor license even though he had the capability to do so. (Defendant Gibbs does not controvert this statement; however, he indicates that to verify whether an establishment had a liquor license, Defendant Gibbs would have contacted Regulated Industries, defendant Majors' office.) Defendant Majors was not present at the Coffee Wonk on October 3, 2012, the date of the controlled buy. Defendant Majors did not participate in the controlled buy or subsequent investigation.

         ii. The purpose of the search of Coffee Wonk

         After receiving the complaint, Detective Gibbs briefed Detectives Whaley and Onik and Sergeant Dumit on Coffee Wonk. At the briefing, Detective Gibbs said they were going to Coffee Wonk to attempt to find and/or buy K2. Defendants, however, argue that there was a dual purpose to this search, and part of the purpose was a tavern check. Detective Gibbs instructed Detective Whaley to enter Coffee Wonk and attempt to purchase “Mr. Happy.”

         The purpose of a tavern check is to check licenses and compliance with city ordinances. Under liquor law licenses, officers are allowed to look anywhere where one may store alcohol and check their licenses. City ordinances authorize police officers to go into backrooms and stock rooms, and look in places where alcohol may be stored. Missouri Code of Ordinances for Kansas City, Section 40-28(h) and Section 10-34(a)). Defendants argue that checking the liquor license at the Coffee Wonk was one of the primary purposes of the search, but that another reason they went to Coffee Wonk was to investigate the complaints, making this a dual purpose search.

         iii. The raid

         On October 3, 2012, Detective Whaley entered Coffee Wonk to conduct the controlled buy and asked for Mr. Happy or Mean Green. The clerk, Shon Ledbetter, informed Detective Whaley that Coffee Wonk did not have either brand and instead sold him a packet of Remix. After Detective Whaley purchased the packet of Remix, the rest of the product was placed under the counter, out of sight. At that time, Det. Whaley had some experience with the packaging of “K2” and how it was sold, including the one to three gram packages that were decorative. Det. Whaley believed the item he purchased was packaged exactly the same as contraband in his experience; plaintiffs dispute this assertion, arguing that Whaley did not have enough experience to be able to tell contraband from non-contraband. Defendants argue other factors that led Whaley to believe it was contraband were that it was stored out of sight and was not advertised. After the purchase, Det. Whaley told the other officers where they could find the Remix. Det. Whaley showed Det. Gibbs the packet he had purchased and told him that the packet came from under the counter.

         Officer Martin was assigned to Central Patrol in October 2012. Officer Martin met up with Det. Gibbs because dispatch called him and told him to meet vice at a certain location. Officer Martin was informed that they just did a buy and they wanted him because he had his uniform on and would be identifiable to anybody. Det. Gibbs and Det. Onik were wearing plain clothes and had their badges around their necks. Vice usually likes a uniformed officer to be there when they do these things so they can keep the peace and they want everybody to know that they are police. Officer Martin was only there to secure the scene and make sure nothing went wrong.

         A short time after Detective Whaley purchased the Remix, Detectives Onik and Gibbs entered Coffee Wonk. At this time, Detectives Onik and Gibbs were unable to see any Remix behind the counter. Detective Gibbs could not see the Remix until he was behind the counter near the register. Defendants argue that based on the packaging and his experience, Det. Gibbs believed this to be contraband. Plaintiff disputes, arguing that Gibbs had only participate in eight to twenty prior alleged synthetic cannabinoid busts and had not seen Remix before. Plaintiff also notes that Vice only ordered lab tests on alleged synthetic cannabinoids if the suspects request their property back, and Mr. Riggs was the only person who had asked for his property back. Thus, plaintiff argues, Gibbs, without having confirmatory lab testing, would not be able to distinguish synthetic cannabinoids from legal herbal incense, according to plaintiff. Gibbs seized all of the Remix that he found behind the counter, along with other similar products. Detectives Gibbs and Onik also searched an envelope full of money to find the money used to buy the Remix. They had to move money in the envelope to observe serial numbers. Detective Gibbs then seized all of the money in that envelope. Det. Gibbs indicates he believed that there was a liquor license at the Coffee Wonk, which would allow him to go behind the counter. Plaintiff argues that Detective Gibbs could not have reasonably believed that Coffee Wonk had a liquor license, given the facts of this case. Detective Gibbs, moreover, observed bottles that he thought were alcohol bottles; however, plaintiff indicates those bottle were coffee syrup bottles, which are easily distinguishable from liquor bottles. Detective Gibbs indicates he looked for a liquor license and business license behind the bar, and did not see either of them. Plaintiff disputes this fact, however, indicating that Gibbs was not really looking for a liquor license, but was instead just looking for alleged synthetic narcotics.

         Meanwhile, Detective Onik searched a storeroom and seized all of the Remix he found there. The storeroom that Detective Onik searched was behind the counter and not part of the public space of Coffee Wonk. Detective Onik indicates that when he entered the business, he could clearly see what he believed to be synthetic narcotics in the back business room; plaintiff, however, indicates the general practice of Coffee Wonk was to cover the storage room with a curtain during business hours, so the room contents would not be in plain view. Det. Onik observed a scale, envelopes, stickers, and an iron, and clear tubs containing what he thought was either marijuana or some type of synthetic narcotic; plaintiff indicates, however, that the tubs did not contain marijuana or synthetic cannabinoids. When Mr. Ledbetter tried to question the police, Detective Onik told him to “shut his fucking mouth.” Detectives Gibbs and Onik did not leave an evidence receipt. They did not arrest Mr. Ledbetter. Mr. Ledbetter was not arrested because, based on Detective Gibbs' training and knowledge at the time, there was not probable cause to do so. The October 22, 2012 lab report indicated that several recovered items contained XLR-11 or 5FUR-144.

         Neither Detective Whaley nor Detective Gibbs had never encountered the Remix brand before. It was not immediately apparent to Detective Onik that the Remix was contraband. Sergeant Dumit had not received training on identifying K2. Before the October 3, 2012, raid at Coffee Wonk, Detective Gibbs had participated in approximately eight to 20 other alleged K2 raids. All of these previous raids were done without a warrant. Detective Whaley had been involved in 10 to 12 other similar “buy busts” and cannot recall a single instance where a search warrant was obtained. The normal procedure for these searches was to seize product without a search warrant. For these previous raids, the alleged K2 generally was not sent to the lab for testing to ensure the presence of a controlled substance. For the lab tests that were performed, the alleged K2 did not consistently test positive for controlled substances.

         D. The February 11, 2013 search warrant

         The Remix seized in 2012 was submitted for lab testing, which revealed that it contained a chemical known as XLR-11. This testing did not happen until after Mr. Riggs had lodged a complaint regarding the October 3, 2012, search of his business. On February 6, 2013, Officer Schwalm bought a package of Speak Easy potpourri from Coffee Wonk. Det. Gibbs applied for a search warrant based on the evidence obtained from the October 3, 2012 search, the February 6 controlled buy and the lab reports from February 7, 2013. In the application for the warrant, Gibbs wrote it was determined that items recovered on October 3, 2012 contained XLR-11 or 5FUR-144; and that the leafy substance obtained on February 6, 2013 contained XLR-11 or 5FUR-144. Detective Gibbs, in the search warrant application, alleged that XLR-11 was a controlled substance analogue of JWH-018.

         When Detective Onik received the crime lab's October 22, 2012, report, he discussed the results with chemists in the crime lab. The chemists told Detective Onik that the Missouri Analogue Statute did not cover XLR-11. This information does not appear on the search warrant application. Of his conversations with the chemists, Detective Onik told Detective Gibbs only that “everything was fine.” Plaintiff argues that if Detective Onik had instead relayed accurate information to Detective Gibbs regarding XLR-11's legal status, Detective Gibbs would not have applied for a search warrant because the affidavit would have been inaccurate.

         The KCPD crime lab had also issued a list of substances considered to be analogues. This list did not include XLR-11. The list did not include XLR-11 because at the time, the KCPD crime lab had no procedures to determine whether two substances shared a substantially similar chemical structure. Nobody in the KCPD crime lab was trained in the neurological effects of allegedly controlled substances. This information does not appear in the search warrant application.

         It appears, however, that Det. Onik checked not only with the crime lab, but also with the DEA. Detective Onik testified the DEA told him that, as for their standards, they considered XLR 11 to be illegal. Det. Gibbs also indicated he relied on a DEA memo which he believes stated that XLR-11 was an analogue. Plaintiff indicates, however, that the DEA memo does not call XLR-11 an analogue, but ...

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