Mills v. Merrimack Police Dept. CV-03-136-B 05/05/04

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Michael M. Mills

v. Civil No. 03-136-B Opinion No.

Merrimack Police Department, et. a l .

MEMORANDUM AND ORDER

Michael Mills brings this civil rights lawsuit challenging

aspects of the police investigation into his alleged involvement

in prostitution. His amended complaint asserts claims of

malicious prosecution (Count 1), theft (Count 2 ), negligent

hiring, training and supervision (Count 3), slander (Count 4),

illegal search and seizure of personal property (Count 5),

illegal search and seizure of a vehicle (Count 6), illegal wire

tapping (Count 7), invasion of privacy (Count 8), false swearing

(Count 9), negligence (Count 10), and mental suffering (Count

11). The defendants move for summary judgment with respect to

all counts. For the reasons discussed below, I grant defendants'

motions. I. BACKGROUND1

The police investigation into Michael Mills' activities

began when the Nashua Police Department received an anonymous

letter, which it passed on to Detective Poirier in the Merrimack

Police Department. The letter, dated February 1, 2002, described

the experience of the writer's niece. The author claimed that

her niece had responded to a newspaper advertisement for a flower

and balloon delivery job only to find herself being interviewed

for what appeared to be a prostitution and stripper service. She

identified the telephone number listed in the advertisement as

424-2424. She also stated that the person who had conducted the

interview lived in Merrimack, New Hampshire, referred to himself

as "Mike," and had whitish hair.

Poirier discovered while investigating the letter writer's

allegations that Mills, who has blue eyes and whitish hair, used

a similar telephone number (424-2442) for a business he operated

in Merrimack under the name "Bikini Grams." A Yellow Pages

advertisement for the business stated "BALLOONS Delivered with

1 All facts, unless otherwise noted, are taken from the Amended Complaint or the Plaintiff's Memorandum of Law in Objection to Defendants' Motion for Summary Judgment (hereinafter Pl.'s O b j . Def.'s Mot. Summ. J.).

- 2 - Style and Always with FUN! BACHELOR/ETTE PARTIES Hot & Sexy We Do

It All!"

Poirier obtained additional information about the Bikini

Grams business from a confidential informant who had previously

provided Poirier with information that had led to arrests in an

unrelated case. The informant claimed that Bikini Grams was a

front for a prostitution business and that the informant was

personally aware that several of Mills' employees were doing

"full service" calls.

Poirier also enlisted Officer Keeley Grise to contact Mills

in an undercover capacity. Posing as a job applicant, Grise met

Mills at his home for a job interview wearing a body wire.

Mills offered Grise employment options that ranged from providing

"G to R rated" flower and balloon delivery service to performing

lingerie and exotic dance shows. He also told her that she could

perform sexual acts for tips, and showed her photographs of the

women working for him in various stages of undress. He stated

that if a client reguested sexual intercourse, his assistant

arranged it and he received a "cut." When Mills asked Grise to

remove her clothes, the officers monitoring the encounter called

her on her cell phone to provide her with an excuse to end the

- 3 - interview.

Poirier relied on this information in obtaining warrants to

search Mills' residence and arrest him. The search warrant

authorized the police to seize "ledgers and appointment books,

receipts and contracts, check books and bank statements, U.S.

currency, stocks and bonds, certificates of deposit, telephone

bills and utility statements, credit card receipts, tax

documents, titles, photographs and videotapes, safety deposit

keys, as well as computers and related peripherals." (Pl.'s Obj.

Mot. Summ. J. Ex. 13).

The arrest warrant was filled out incorrectly. Although the

affidavit Poirier produced in support of his reguest for a

warrant identified Michael Mills as the target and the arrest

warrant itself identified the object of the complaint as Michael

Mills, the name of the person authorized to be arrested was

incorrectly listed as Wilber Anderson. Poirier corrected this

error after the judge signed the warrant and before it was

executed.

The police seized a number of items from Mills' residence,

including a binder with photographs and information about

employees, files with paperwork, keys, a computer, a duffle bag

- 4 - containing "sex related items," and a large amount of U.S.

currency. Mills was given a copy of the warrant and an inventory

of seized items.

Mills arrived at the house during the search and was

arrested. His vehicle was impounded and towed. Poirier obtained

a warrant to search the vehicle on March 4, 2002, and the warrant

was executed the next day. The car's vehicle identification

number was listed incorrectly on the warrant.

Mills was charged with five counts of prostitution in

Merrimack District Court. Mills filed a motion in that case

seeking to compel the police to either return certain items that

the police allegedly had seized during the search of his home or

pay damages for items that were lost or damaged. In particular.

Mills sought to compel the police to return $508, two audio

cassettes, a calculator, and the contents of 23 files. He also

sought compensation for a damaged computer keyboard. The court

denied his motion. The charges against Mills ultimately were

dismissed after he entered a nolo contendere plea to a charge of

disorderly conduct.

Police Chief Devine gave an interview to a local newspaper

in which he claimed that the police had given Mills $508 more

- 5 - than he was entitled to when they refunded the money that they

had seized from his home. Devine claimed that while police

records indicated that $3,106 had been seized, the actual amount

was only $2,508. The newspaper article describing Devine's

interview states: "[a]s a result, Devine said. Mills got $508

more than he should have because of a clerical error. And now

that he's been cut the check, '[h]e's not going to come forward

and tell us that there was actually only $2,508.'" Months later,

the police discovered approximately $500 in an envelope in the

police evidence room that could not be attributed to any other

investigation.

II. STANDARD OF REVIEW

Summary judgment is appropriate only "if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law." Fed. R. Civ. P.

56(c). A genuine issue is one "that properly can be resolved

only by a finder of fact because [it] may reasonably be resolved

in favor of either party." Anderson v. Liberty Lobby, Inc., 477

- 6 - U.S. 242, 250 (1986). A material fact is one that affects the

outcome of the suit. See i d . at 248.

In ruling on a motion for summary judgment, I construe the

evidence in the light most favorable to the nonmovant. See

Navarro v. Pfizer Corp.,

(1st Cir. 2001). The

party moving for summary judgment, however, "bears the initial

responsibility of informing the district court of the basis for

its motion, and identifying those portions of [the record] which

it believes demonstrate the absence of a genuine issue of

material fact." Celotex Corp. v. Catrett,

(1986). Once the moving party has properly supported its motion,

the burden shifts to the nonmoving party to "produce evidence on

which a reasonable finder of fact, under the appropriate proof

burden, could base a verdict for it; if that party cannot produce

such evidence, the motion must be granted." Ayala-Gerena v.

Bristol Myers-Sguibb Co.,

(1st Cir. 1996) (citing

Celotex,

; Anderson,

). Neither

conclusory allegations, improbable inferences, or unsupported

speculation are sufficient to defeat summary judgment. See

Carroll v. Xerox Corp.,

(1st Cir. 2002) .

- 7 - III. ANALYSIS

Mills challenges a variety of actions taken by various

police officers. He has also sued the police chief and the

department. I discuss each of his claims in turn.

A. The Investigation

Mills asserts that Officer Grise violated New Hampshire law

by wearing a body wire when she entered his residence posing as a

job applicant. I disagree. New Hampshire law prohibits police

officers from using wire taps without judicial authorization

except when investigating a specific set of crimes. N.H. Rev.

Stat. Ann. 570-A:2 11(c). One of those crimes is "organized

crime," which the statute defines in part as "unlawful activities

of the members of a highly organized, disciplined association

engaged in supplying goods and services, including, but not

limited to . . . prostitution." N.H. Rev. Stat. Ann. 570-A:l XI.

Here, Poirier and Grise were seeking to determine whether Mills

was running a prostitution organization involving a number of

employees. Grise therefore did not violate New Hampshire law by

wearing a body wire. I therefore grant defendants' motion for

summary judgment as to Count 7. B. Mills' Arrest

Mills asserts that his arrest was illegal and constituted

malicious prosecution.2 The state law tort of malicious

prosecution requires a showing that the plaintiff was "'subjected

to a criminal prosecution instituted by the defendant without

probable cause and with malice,' [terminating in the plaintiff's]

favor." State v. Rollins,

(1987) (quoting

Robinson v. Fimbel Door Co.,

(1973) .3 Probable

cause exists when "the arresting officer has knowledge and

trustworthy information sufficient to warrant a person of

reasonable caution and prudence in believing that the arrestee

has committed an offense." Hartgers v. Town of Plaistow, 141

2 Mills has not sued the attorneys or office that actually prosecuted him. He has sued only the police officers and department.

3 To the extent Mills asserts a § 1983 claim for malicious prosecution, it fails. New Hampshire provides an adequate remedy for the common law tort of malicious prosecution. MacRae v. Brant,

(1967). The availability of this state law remedy defeats any procedural due process claim for malicious prosecution. Roche v. John Hancock M u t . Life Ins. Co.,

(1st Cir. 1996) ("a garden-variety claim of malicious prosecution garbed in the regalia of § 1983 must fail"); Meehan v. Town of Plymouth,

(1st Cir. 1999) ("[a] § 1983 claim for malicious prosecution as a deprivation of procedural due process is barred where, as here, the state's tort law recognizes a malicious prosecution cause of action"). N.H. 253, 255 (1996) (internal quotations and citations omitted);

United States v. Figueroa,

(1st Cir. 1987).

The defendants had ample cause to arrest and prosecute

Mills. Poirier had obtained information from multiple sources

indicating that Mills was operating a prostitution business.

Further, Officer Grise went into Mills' home in an undercover

capacity and had a conversation with him in which he informed her

that he provided men with women for sexual purposes in return for

a fee. These facts amply justify defendants' decisions to arrest

and prosecute Mills. Accordingly, I grant defendants' motion for

summary judgment with respect to Count 1.

C. The Searches of Mills' Home and Vehicle

The same facts that justify Mills' arrest also justify the

search of his residence. Because the police had probable cause

to believe that Mills was running an illegal prostitution

business from his home, they were justified in obtaining a

warrant to search his residence and seize any item that could

serve as evidence of his prostitution business. The police thus

were entitled to seize any computers, business or tax related

paperwork, appointment books, address books, sexual toys or

related items, money which could be from illicit sources,

- 10 - photographs which might be of clients or employees, and other

similar items that they reasonably believed were related to the

prostitution business. I therefore grant summary judgment as to

Count 5.

Mills also charges that the police unlawfully seized and

searched his vehicle. He claims that the police: (1) lacked

probable cause to seize the vehicle; (2) improperly entered the

vehicle before obtaining a warrant; and (3) unjustly waited four

days after searching the vehicle to obtain a warrant. All of

these arguments lack merit.

The police had probable cause to seize and impound Mills'

vehicle until a warrant to search it could be obtained because a

police officer looked into the vehicle while he was lawfully on

Mills' property and saw a three-ring binder in plain view that

was similar to another binder containing naked pictures of Mills'

employees that the police had previously seized during the search

of Mills' home. This observation, when coupled with the other

information that was then available to the police, gave Poirier

probable cause to seize and search Mills' vehicle. Having

obtained probable cause to seize and search the vehicle, the

police were justified in impounding it until a warrant could be

- 11 - obtained. Moreover, a delay of four days in obtaining a warrant

was not unreasonable under the circumstances. See Ex parte Boyd,

(Ala. 1989) (four day delay in securing warrant

to search impounded vehicle not unreasonable).4

I do not find a triable issue of fact in whether defendants

unlawfully entered the vehicle unlawfully prior to obtaining a

warrant. Mills has provided an affidavit from his wife asserting

that she saw a police officer in the back seat of the car on the

evening of February 28. Poirier stated in his deposition that if

an officer entered the car it would have been to drive it onto

the street to permit it to be towed from the scene. Even if

Mills' wife were correct, however, the officers would acted

improperly. A warrantless search on the spot would have been

justified under the automobile exception to the Fourth

Amendment's warrant reguirement. See Maryland v. Dyson,

(1999). I therefore grant summary judgment with

respect to Counts 6 and 8.

4 The fact that the warrant to search the vehicle contained an incorrect vehicle identification number is inconseguential under the circumstances of this case because there was no doubt about the identity of the vehicle that was the subject of the warrant. Thus, I reject any claim for damages that Mills asserts on this basis.

- 12 - D. Retention of Seized Items

Mills asserts that the defendants failed to return certain

property that they had seized during the search of his home.

This claim is barred by res judicata. For res judicata to

attach, "(1) the parties must be the same or in privity with one

another; (2) the same cause of action must be before the court in

both instances; and (3) a final judgment on the merits must have

been rendered on the first action." Butland v. Dep't of Corr.,

(D.N.H. 2002) .

Mills received an order in his criminal case on June 3,

2002, reguiring the police to return his property. He later

filed a motion to enforce the June 3 order which addressed the

same property that is at issue in his current claim. The

Merrimack District Court heard testimony on the matter and denied

Mills' motion, finding that for each item. Mills either failed to

prove that the item had been taken, failed to prove that the

items was not returned, failed to prove that the item had been

damaged, or failed to prove that he had not already been

compensated for the item. Since the criminal case ended when

Mills entered his nolo contendere plea, that decision is now

final. All the elements of res judicata are satisfied and I

- 13 - therefore grant defendants' motion for summary judgment as to

Count 2.

E. Slander

Mills claims that Police Chief Devine slandered him when he

told a newspaper reporter that: (1) Mills was not entitled to a

portion of the money that the police department had disbursed to

him; and (2) that Mills was unlikely to return the money.

Defamation consists of a "fail[ure] to exercise reasonable

care in publishing a false and defamatory statement of fact about

the plaintiff to a third party." Pierson v. Hubbard,

(2002) (internal citation omitted). "To be defamatory,

language must tend to lower the plaintiff in the esteem of any

substantial and respectable group, even though it may be guite a

small minority." Touma v. St. Mary's Bank,

(1998). Furthermore, "a statement in the form of an opinion may

be read to imply defamatory facts, and it is actionable if it is

actually understood that way." Duchesnaye v. Munro Enters.,

(1984).

The first statement on which Mills bases his claim -- that

Mills received more than his due because of an accounting error -

- did not defame Mills because it could not lower him in the

- 14 - esteem of any group. The second statement -- that Mills was

unlikely to return the money -- was not defamatory because it was

merely an opinion. Defendants thus are entitled to summary

judgment on Count 4, Mills' slander claim.5

F. False Testimony

Mills asserts that Poirier knowingly and willfully gave

false or misleading responses in his May 22, 2002 deposition, and

that Poirier and Roy both testified falsely under oath at a

September 10, 2002 hearing at the Merrimack District Court. I

reject these claims because Poirier and Roy are entitled to

absolute immunity for any testimony they gave in court. See

Briscoe v. LaHue,

(1983). I therefore grant summary

judgment as to Count 9.

G. Remaining Claims

Mills alleges that the Merrimack Police Department

negligently hired, trained, and supervised its officers. He also

5 To the extent that Mills also asserts a civil rights violation based on the same conduct, he has failed to state a viable claim for relief. See Paul v. Davis,

(1976) (there is "no constitutional doctrine converting every defamation by a public official into a deprivation of liberty within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment").

- 15 - asserts that the individual defendants failed to exercise

reasonable care in carrying out their duties. As I have already

explained, the defendants acted lawfully in investigating Mills,

searching his home and vehicle, and prosecuting him. Because the

individual defendants did not violate Mills' constitutional

rights, the police department cannot be held liable on any claim

for negligent hiring, training, or supervision based on

. See City of Los Angeles v. Heller,

(1986). Further, while defendants made certain inconseguential

errors in preparing the arrest and search warrants and may well

have failed to initially return all of the money that they seized

from Mills' home, these errors did not injure Mills, and thus

will not support an actionable state law negligence claim.

Mills' separate claim for mental suffering fails for similar

reasons. Accordingly, I grant summary judgment with respect to

Counts 3, 10 and 11.

- 16 - Finally, to the extent Mills' complaint is based on his

perception that another similar business has not as yet been

prosecuted to the same extent as his own, he has not alleged

unequal treatment under the law based on an impermissible motive,

and therefore, he has no civil rights claim.

IV. CONCLUSION

For the reasons stated above, I grant summary judgment for

the defendants on all counts. (Doc. Nos. 34 and 36). All other

pending motions are thus rendered moot.

SO ORDERED.

Paul Barbadoro Chief Judge

May 5, 2 0 04

cc: William G. Scott, Esq. Scott A. Ewing, Esq. Michael M. Mills

- 17 -