Washington v. Whitaker

451 S.E.2d 894, 317 S.C. 108, 1994 S.C. LEXIS 218

Opinions

Chandler, Acting Chief Justice:

Gregory Whitaker (Officer Whitaker) and The City of Charleston (City) appeal a jury verdict awarded to Respondents for violations of their Fourth Amendment rights.

We affirm.

FACTS

Respondent Josephine Washington lives at 37H Flood Street with her daughters, Collette and Lakeisha, and Collette’s children.

At approximately 11:00 p.m., on February 16,1989, a team of City police officers, led by Officer Whitaker, and including seven undercover officers and one uniformed officer, conducted a “drug raid” at 37H Flood Street. The raid was made pursuant to a warrant authorizing a search of the premises and of any person therein for illegal drugs. Officer Whitaker obtained the warrant based upon his affidavit that he observed a confidential informant enter apartment 37H on two occasions and purchase cocaine. The confidential informant told Officer Whitaker that he had purchased the drugs from a black male named “Dean.”

On the night in question, undercover officers knocked on the door of 37H and asked for Dean. From an upstairs window, Collette Washington, who was five months pregnant, informed them that Dean lived next door.¹ She also threatened to call the police. Josephine Washington answered the front door and the officers entered the apartment. They gathered into the living room the occupants of the apartment, including Josephine, Collette, Collette’s friend Reginald Harley, Lakeisha, who was twelve years old, Annette, and Annette’s nine-year-old daughter Jacquetta. Collette and Annette both had infant children who were left sleeping upstairs.

After the police searched the apartment, no illegal drugs nor any evidence of drugs were found.² Notwithstanding, Respondents were taken individually to the bathroom by a female officer for a strip search. They were forced to disrobe and perform various movements, including bending over and lifting their buttocks. It was alleged that twelve-year-old Lakeisha was also strip searched and that the officers attempted to strip search Jacquetta but, due to her mother’s protestations, she was given a pat-down search.³ For reasons not appearing in the record, Harley, the only male present, was not subjected to a strip search. No narcotics were discovered.

Respondents⁴ then instituted this action against City and Officer Whitaker, alleging Fourth Amendment violations under the Tort Claims Act⁵ and 42 U.S.C. § 1983. The jury returned verdicts for Respondents as follows:

Josephine Washington: actual damages of $1500 punitive damages of $75,000 against City and $5,000 against Officer Whitaker;

Collette Washington: actual damages of $1000 punitive damages of $75,000 against City and $5,000 against Officer Whitaker;

Annette White: actual damages of $100 punitive damages of $75,000 against City and $5,000 against Officer Whitaker.

The City and Officer Whitaker appeal.

ISSUES

1. Was City entitled to a directed verdict?

2. Should the punitive damages awards have been stricken or set aside?

3. Was Officer Whitaker entitled to the defense of qualified immunity?

4. Was Officer Whitaker entitled to a directed verdict?

5. Should Juror Nesbit have been disqualified?

6. Was evidence concerning drug activity in Respondents’ neighborhood admissible?

7. Were Appellants entitled to a mistrial?

8. Was Magistrate Koontz improperly questioned?

9. Was Appellants’ Request to Charge that a “search conducted with a valid search warrant is presumed to be both valid and reasonable” improperly refused?

DISCUSSION

A. Directed Verdict for City

City argues that it was entitled to a directed verdict on the 42 U.S.C.A. § 1983 action. We disagree.

42 U.S.C.A. § 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

The U.S. Supreme Court has held that local governing bodies, such as City, are liable under § 1983 for constitutional violations arising from the government’s implementation of policy or custom. Monell v. Dept. of Soc. Serv. of City of N.Y., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed. (2d) 611 (1978). The plaintiff must show that such policy or custom amounted to a “deliberate indifference” to their constitutional rights. Pembaur v. Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed. (2d) 452 (1986); Todd v. Smith, 305 S.C. 227, 407 S.E. (2d) 644 (1991). The failure to adequately train is actionable under § 1983. City of Canton, Ohio v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed. (2d) 412 (1989).

Here, Respondents submitted evidence that, where individuals were suspected of concealing narcotics, City condoned the practice of strip searching, notwithstanding its police officers received no training as to how and when to conduct the searches. Moreover, no specific policy concerning strip searches was established.

It was the jury’s province to determine from this evidence whether the City’s failure to train or establish policy on strip searching constituted “conscious indifference” to Respondents’ Fourth Amendment rights. Accordingly, the motion for directed verdict was properly denied. Waites v. S.C. Windstorm and Hail Under. Assoc., 279 S.C. 362, 307 S.E. (2d) 223 (1983) (this Court is not concerned with the weight of the evi dence, but whether there is any evidence from which the jury is warranted in making a finding).

B. Punitive Damages

City contends that: (1) the request for punitive damages should have been stricken from the complaint pursuant to City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed. (2d) 616 (1981);⁶ and (2) the punitive damage awards should have been set aside since they were unduly excessive and against the weight of the evidence. We disagree.

First, City waived any objection to the propriety of punitive damages against a municipality. At trial, City motioned to strike punitive for the § 1983 action on the grounds of insufficient evidence. This motion was denied and City itself submitted a proposed punitive damage charge. The City of Newport, supra, was not cited or argued until City made motion for JNOV.

Unlike the federal courts, this Court does not recognize a “plain error” rule. Rather, it is well settled that a contemporaneous objection must be made to preserve an argument for appellate review. Taylor v. Bridgebuilders, Inc., 275 S.C. 236, 269 S.E. (2d) 337 (1980) (where no objection made to as to applicability of statute until motion for JNOV, issue not preserved). Here, City failed to raise a contemporaneous objection to the punitive damages pursuant to City of Newport and, therefore, cannot do so upon appeal. Talley v. S.C. Higher Educ. Tuition Grants Committee, 289 S.C. 483, 347 S.E. (2d) 99 (1986) (challenge to constitutionality of Act was procedurally barred).

In so holding, we overrule the antiquated rule that sovereign immunity is a jurisdictional bar and, accordingly, cannot be waived. See Lowry v. Commissioners of Sinking Fund, 25 S.C. 416, 1 S.E. 141 (1886); Hammarskold v. Bull, 9 Rich. 474 (1856); Reed v. Medlin, 284 S.C. 585, 328 S.E. (2d) 115 (Ct. App. 1985). We join those jurisdictions which hold that sovereign immunity is an affirmative defense that must be pled.⁷ This accords with modern precedent of this Court, holding that subject matter jurisdiction is met if the case is brought in the court which has the authority and power to determine the type of action at issue. See Dove v. Gold Kist, Inc., — S.C. —, 442 S.E. (2d) 598 (1994).

Second, the punitive damage award against City was not unduly excessive or against the weight of the evidence. The trial judge conducted a posttrial review pursuant to Gamble v. Stevenson⁸ and determined that the award was appropriate given the facts of the case. We affirm his findings as to punitive damages.⁹

C. Officer Whitaker — Qualified Immunity

Officer Whitaker contends he was entitled to the defense of qualified immunity. We disagree.

“[Gjovernment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed. (2d) 396, 410 (1982). See also Cone v. Nettles, 308 S.C. 109, 417 S.E. (2d) 523 (1992). Thus, the crux of this issue is whether Officer Whitaker violated Respondents’ “clearly established” Fourth Amendment rights, “the contours of which [were] sufficiently clear in light of preexisting law that a reasonable public official would know that his actions violate the right.” Timberlake by Timberlake v. Benton, 786 F. Supp. 676, 685 (M.D. Tenn. 1992).

The Fourth Amendment of the United States Constitution guarantees that citizens be free from unreasonable searches and seizures. “The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.” Schmerber v. State of California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed. (2d) 908 (1966).

Strip searches are “demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, [and] signifying degradation and sub-

mission.” Mary Beth G. v. City of Chicago, 723 F. (2d) 1263, 1272 (7th Cir. 1983) [quoting Tinetti v. Wittke, 479 F. Supp. 486, 491 (E.D. Wis. 1979), affirmed 620 F. (2d) 160 (7th Cir. 1980)]. Strip searches may be necessary in a custodial setting where an individual has decreased expectations of privacy and the State has a legitimate security interest. However, beyond the custodial context, strip searches must be premised upon a clear showing of exigent circumstances.

A warrant to search does not absolve an officer from liability under § 1983. Rather, the focus is whether the warrant was executed in a reasonable manner. Duncan v. Barnes, 592 F. (2d) 1336 (5th Cir. 1979).

Here, the following facts demonstrate that Officer Whitaker knew or should have known that the strip search was not reasonable and, if unreasonable, violated Respondents’ Fourth Amendment rights:

1. Immediately upon their arrival at 37H Flood Street, the officers were told that Dean lived next door;

2. Although only a male individual named Dean was suspected of selling drugs, the officers searched only the women present;

3. No “pat down” search was performed prior to the strip search;

4. The strip search was ordered even though no narcotics or evidence thereof were discovered in the search of the apartment;

5. Steven Grooms, an ex-police officer, testified as an expert that a strip search was not justified under the facts of this case;

6. Charleston Chief of Police, Reuben Greenberg testified that, under the facts of record, he would not have ordered a strip search.

Although Officer Whitaker was acting under the authority of a search warrant, he exceeded the scope of the warrant, he exceeded the scope of the warrant by ordering the strip searches after the search of the apartment revealed no evidence of narcotics, or of the presence of Dean.¹⁰ There were no exigent circumstances or probable cause justifying such an intrusive search. Duncan, supra; Hill v. McIntyre, 884 F. (2d) 271 (6th Cir. 1989).

We affirm the denial of summary judgment as to qualified immunity.

D. Directed Verdict — Officer Whitaker

Officer Whitaker contends that, inasmuch as he did not conduct the strip searches, he was entitled to a directed verdict. We disagree.

Under § 1983, supervisory liability may be established upon a showing that the defendant implicitly authorized, approved or knowingly acquiesced to the strip search. Timberlake, supra. There is evidence of record that Officer Whitaker supervised the execution of the warrant and that he ordered the searches. Accordingly, there was evidence from which the jury could find that Officer Whitaker was directly responsible for the strip searches. Directed verdict was correctly denied. Waites, supra.

E. Juror Nesbit

On the third day of trial, Juror Nesbit told the trial judge that she had heard a radio news announcement concerning the case, summarized as follows:

Juror: They said something about the case was being tried where the police they assume went to the wrong house and something about Ms. White and the daughter being strip searched. That’s all.

All I remember hearing is that the case was being tried about a police making a drug bust and about Ms. white and her daughter being strip searched. That’s all I heard.

They said that it seemed like a wrong residence like it was the wrong residence or something like that they said.

The trial judge denied Appellants’ motion to exclude Juror Nesbit from the jury after ascertaining that she would “take out of [her] mind what [she] heard on the radio as if [she] never even heard it.” She advised the court that she could be a fair and impartial juror and would decide the case solely on the evidence presented and the charge on the law.

It is within the discretion of the trial court to determine whether bias results from a juror’s reception of outside information concerning the case being tried. State v. Wasson, 299 S.C. 508, 386 S.E. (2d) 255 (1989); U.S. v. Jones, 907 F. (2d) 456 (4th Cir. 1990), cert. denied; Johnson v. U.S., 498 U.S. 1029, 111 S.Ct. 683, 112 L.Ed. (2d) 675, rehearing denied,, 498 U.S. 1116, 111 S.Ct. 1028, 112 L.Ed. (2d) 1109 (1991).

Here, Juror Nesbit stated, unequivocally, that she would not permit the radio broadcast to influence her decision. Accordingly, the motion to remove Juror Nesbit from the jury was properly denied.

F. Evidence of Drug Activity

Appellants contend that evidence of “a lot of drug activity” at the housing complex where 37H is located was relevant to prove that Officer Whitaker’s conduct was reasonable. We disagree.

The admission of evidence is within the sound discretion of the trial court and its ruling will not be disturbed on appeal absent a clear abuse of that discretion. Hofer v. St. Clair, 298 S.C. 503, 381 S.E. (2d) 736 (1989). Evidence is relevant and admissible if it tends to establish or to make more or less probable some matter in issue. Id.; Associate Management, Inc. v. E.D. Sauls Const. Co., 279 S.C. 219, 305 S.E. (2d) 236 (1983).

The evidence was properly excluded. Respondents’ misfortune of living in a high crime area does not make it more probable that they deal drugs, nor does it lessen their constitutional rights. There was no abuse of discretion in the trial judge’s exclusion of this evidence.

G. Mistrial

Josephine Washington, in reply testimony, mentioned that an insurance company had contacted her:

Q. Okay, after speaking with Mr. Goldberg did someone from the — did someone contact you to ask you — from the City to ask you for a statement as to what had happened?

A. The insurance company. Excuse me. It was — well, I know that someone call and talk to me at Mr. Goldberg office.

Appellants argue that their motion for mistrial based on this testimony should have been granted since the mention of insurance contributed to an irrational award of punitive damages. We disagree.

The decision to declare a mistrial rests within the sound discretion of the trial court and its ruling will not be reversed absent an abuse of that discretion. Where liability insurance has been injected at trial, the party complaining must establish prejudice. Tucker v. Reynolds, 268 S.C. 330, 233 S.E. (2d) 402 (1977) (where inadvertent mention of insurance did not prejudice defendant).

Here, Josephine Washington’s mere mention of insuranee was not intentional or calculated to influence the jury. The jury was instructed to draw no any inferences whatsoever from the word “insurance.” Further, the punitive damage award was found to be supported by the record. There was no abuse of discretion.

H. Magistrate Koontz

Appellants contend that the trial judge erred in allowing the following line of questioning of Magistrate Koontz, who issued the search warrant:

Q. Had Gregory Whitaker come to your Court on this case and said one time I made a buy of two one-hundredths of a gram of cocaine or a confidential — we don’t know who he is — two one-hundredths of a gram, and I want to go in there in the house and I want to strip all the clothes off a grandmomma, daughter, children in that house, would you have...

Q. Would you have allowed that?

A. First of all, Mr. Whitaker wouldn’t have asked me that, and, no, I would not have.

As stated above, the admission of evidence is within the discretion of the trial court and its finding will not be disturbed on appeal absent an abuse of that discretion. Evidence is relevant and admissible if it tends to establish or to make more or less probable some matter in issue. Hofer, supra; Assoc. Management, supra.

Magistrate Koontz was being questioned concerning the scope of the warrant she issued to Officer Whitaker. Since whether Officer Whitaker exceeded the scope of the warrant was an ultimate issue, there was no abuse in allowing the question.

I. Jury Charge

Appellants requested that the jury be given the following charge:

A search without a warrant is presumed to be invalid and unreasonable but a search conducted with a valid search warrant is presumed to be both valid and reasonable.

The judge refused the charge, holding that it applied to suppression of evidence in criminal cases. We agree.

In a civil case, as here, a search warrant does not shield officers from civil liability under § 1983 if the warrant was executed in an unreasonable manner. Galluccio v. Holmes, 724 F. (2d) 301 (2d Cir. 1983); Hill, supra.

Jury instructions must be read in light of the entire charge and the facts of the case. Cox v. Lund, 286 S.C. 410, 334 S.E. (2d) 116 (1985). Under the facts here, Appellants were not entitled to the requested charge.

Affirmed.

Finney, Toal and Moore, JJ., concur. Bruce Littlejohn, Acting Associate Justice, dissenting in separate opinion.

Footnotes

1

Josephine and Collette testified that new tenants had moved next door, including a man named Dean, and that people were constantly knocking on their door asldng for Dean.

2

A box of “zip-lock” bags was found in Collette’s bedroom. We disagree with the Dissent that these bags may be considered evidence of drug dealing, it is noteworthy that the drugs sold to the informant by “Dean” were packaged in glassine, not plastic, bags. Moreover, Collette explained that she used the bags for her children’s lunches and for their wet clothing. Given the extensive and varied use of “zip-lock” bags in the modern household, the bags, without more, do not constitute evidence of illegal drugs.

3

Appellants dispute that any children were searched.

4

In suits by Lakeisha and Jacquetta the jury was unable to reach verdicts, resulting in mistrials.

5

S.C. Code Ann. § 15-78-10, et. seq. (Supp. 1992).

6

City of Newport, supra, holds that a municipality is immune from punitive damages.

7

See Davis v. San Antonio, 752 S.W. (2d) 518 (Tex. 1988); Rubino v. N.Y., 145 App. Div. (2d) 285, 538 N.Y.S. (2d) 547 (1989, 1st Dept.); Gauvin v. New Haven, 187 Conn. 180, 445 A. (2d) 1 (1982); Fitzpatrick v. Chicago, 112 Ill. (2d) 211, 97 Ill. Dec. 419, 492 N.E. (2d) 1292 (1986); Morris v. Chicago, 130 Ill. App. (3d) 740, 86 Ill. Dec. 77, 474 N.E. (2d) 1274 (1985); Kolitch v. Dindedahl, 100 N.J. 485, 497 A. (2d) 183 (1985); McShain v. Evesham, 163 N.J. Super. 522, 395 A. (2d) 251 (1978); Swartz v. Masloff, 62 Pa. Cmwlth. 522, 437 A. (2d) 472 (1981); Maurer v. Oakland Cnty., 201 Mich. App. 223, 506 N.W. (2d) 261 (1993).

8

305 S.C. 104,406 S.E. (2d) 350 (1991).

9

The Dissent argues that the Court’s Gamble review was insufficient as to Officer Whitaker. This argument was not raised at trial, in the appellate briefs, or at oral argument to this Court. We will not reach it ex mero motu.

10

Nowhere in the Dissent is there citation of the above specific, and critical, evidence of the reasonableness of the search.