UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Robyn White, Plaintiff

v. Case No. 19-cv-1059-SM Opinion No.

N.H. State Troopers James Roe, John Roe, And Haden Wilber; Strafford County Corrections Sergeants Cormier and Gillaen Nadeau, and Corrections Officer Shawntell Clemmer; Thomas Lydon, M.D. and Seacoast Emergency Physicians, Defendants

O R D E R

Robyn White brings this civil rights action seeking damages

for alleged violations of various constitutionally protected

rights. See generally

. She also asserts state

law claims against some defendants. New Hampshire State Trooper

Haden Wilber moves to dismiss the two constitutional claims

brought against him, asserting that neither states a viable

cause of action. See Fed. R. Civ. P. 12(b)(6). That motion is

necessarily denied.

Standard of Review

When ruling on a motion to dismiss under Rule 12(b)(6), the

court must “accept as true all well-pleaded facts set out in the complaint and indulge all reasonable inferences in favor of the

pleader.” S.E.C. v. Tambone,

(1st Cir. 2010).

Although the complaint need only contain “a short and plain

statement of the claim showing that the pleader is entitled to

relief,” Fed. R. Civ. P. 8(a)(2), it must allege each of the

essential elements of a viable cause of action and “contain

sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face,” Ashcroft v. Iqbal,

(2009) (citation and internal punctuation

omitted).

In other words, “a plaintiff’s obligation to provide the

grounds of his entitlement to relief requires more than labels

and conclusions, and a formulaic recitation of the elements of a

cause of action will not do.” Bell Atl. Corp. v. Twombly,

(2007). Instead, the facts alleged in the

complaint must, if credited as true, be sufficient to “nudge[]

[plaintiff’s] claims across the line from conceivable to

plausible.”

.

Here, the factual allegations pled in plaintiff’s Second

Amended Complaint (document no. 26) plainly set forth viable and

plausible claims that Trooper Wilber violated her

constitutionally protected rights.

2 Factual Backgrounds

Accepting the allegations of White’s complaint as true – as

the court must at this juncture – the relevant facts are as

follows. On February 20, 2017, White was driving north on

Interstate 95 when New Hampshire State Trooper Haden Wilber

pulled her over because snow was obscuring one of her car’s

taillights, ostensibly in violation of N.H. Rev. Stat. Ann.

(“RSA”) 265:79-b. That statute makes it unlawful to “drive[] a

vehicle negligently” or “in a manner that endangers or is likely

to endanger” other people or property.

White alleges that during the course of the roadside

detention, Trooper Wilber searched her purse, without her

consent or legal justification, and in violation of the Fourth

Amendment. Wilber discovered what he believed to be heroin

residue and called for backup. After examining White’s driver’s

license, Wilber learned that she was a resident of Avon

(Franklin County), Maine, and he telephoned the Franklin County

Sheriff’s Department. White alleges that the person who

answered the phone had never heard of White, but recounted to

Wilber the story of a Maine resident who, in 2016, had secreted

oxycodone on their person while traveling somewhere in New

Hampshire. Based upon that odd and vague story, Wilber is

alleged to have suspected that White, too, was attempting to

3 conceal controlled substances on or in her body. White was

arrested and transported to Rockingham County Jail.

Next, says White, Wilber shared his “suspicions” about

White secreting controlled substances somewhere in her body with

defendant James Roe, who transported White to the Strafford

County Jail to undergo a full-body scan. All the while, White

says she vehemently denied having any controlled substances on

or in her body. Nevertheless, when she arrived at the jail,

White says defendant Shawntell Clemmer (a corrections officer)

forced her to undergo a full-body scan – again, absent consent,

probable cause, a search warrant, or other lawful justification.

Clemmer claimed to have observed two “abnormalities” in White’s

intestinal region, so White was returned to the Rockingham

County Jail where she was held while officers waited for

“something to pass.” Nothing did. As an aside, the court notes

that White also alleges that despite Clemmer’s claims about

having observed two “abnormalities” on White’s scan, the booking

notes from the Rockingham County Department of Corrections

report that White was subjected to a full-body scan on February

10, 2017, at 6:27 pm and “No Foreign Objects [were] Detected.”

Earlier on February 10, 2017 – the day of her arrest –

White’s bail was set at $250 for possession and transportation

4 of a controlled substance. But, says White, Wilber intervened

and added an additional charge: “delivery of articles

prohibited.” That charge was, according to the amended

complaint, based upon Wilber’s continued belief (despite the

lack of supporting evidence) that White had somehow secreted

controlled substances in her body and “delivered” those drugs to

herself while being held in jail. White alleges that Wilber

fabricated that fanciful story and conveyed it to the

prosecutor, who then relied upon Wilber’s false testimony to

persuade the court to significantly increase White’s bail. As a

consequence, on February 13, White’s bail was increased to

$5,000.

White could not afford to post bail and was, therefore,

detained. She was returned to Rockingham County Jail. By

February 21 – eleven days after her arrest – after nothing had

“passed” and no drugs were discovered on her body or in her

possession, White’s bail was reduced to $250. Nevertheless,

because of the still-pending “delivery of articles prohibited”

charge, the court ordered that, as a condition of White’s bail,

she undergo a second body scan before being released. She

dutifully complied with the court’s bail condition, submitted to

the additional body scan (which revealed no drugs secreted

5 within her body), and was then transferred back to Rockingham

County Jail.

At that point, White, no doubt, thought she would finally

be released from custody. That was not the case. She claims

another defendant informed her that a search warrant application

had been filed and was pending (based, again, upon Wilber’s

allegedly fabricated tale of White having secreted drugs into

the jail inside her body). White says she was told that the

warrant would require her to submit to a vaginal and rectal

examination to search for concealed drugs (recall that this was

now nearly two weeks after her arrest, an uninterrupted period

of detention, and two body scans, during which time no drugs

were found). White was informed that, despite having complied

with the court’s order to undergo a second full-body scan, she

was not free to go. The options, as presented to her, were

either “consent” to the body cavity search or wait for the

search warrant, which she was told could take a considerable

amount of time. Given the limited choices presented to her,

White reluctantly acquiesced, agreed to submit to the body

cavity search, and was taken to Wentworth Douglass Hospital.

There, a male physician (also a defendant), assisted by a nurse,

performed an invasive pelvic and rectal examination of White.

No drugs were found.

6 The following day (February 22), the prosecutor withdrew

the “delivery of articles prohibited” charge against White. The

day after that (February 23) – thirteen days after her arrest –

White was finally released from custody.

Parenthetically, the court notes that White also alleges

that on February 15, 2017, she was transferred to Valley Street

Jail and required to submit to a drug test. That test was

negative. So, despite two full-body scans, a drug test, and an

invasive body-cavity search, no drugs were ever found on or in

White’s body. The only controlled substance found in her

possession was the trace heroin discovered – unconstitutionally,

she says – by Wilber in her purse.

According to White, absent Wilber’s pretextual motor

vehicle stop and unconstitutional search of her purse, none of

the foregoing would have occurred. Moreover, even if the stop

and search were legitimate, Wilber’s (allegedly) fabricated tale

of White having “secreted” drugs in her body proximately caused

her to suffer significant injury: she was unable to post the

$5,000 bail, spent thirteen days in jail, and was subjected to

two full-body scans, a drug test, and an invasive body cavity

search – all of which revealed absolutely no evidence of any

illegal conduct. And, adding insult to injury, White says

7 Wentworth Douglass Hospital sent her a bill for the “emergency

services” it provided to her – that is, the body cavity search

that was performed at defendants’ insistence.

Discussion

Against that factual backdrop – which, again, the court

must accept as true - Wilber contends that neither of White’s

two claims against him states a viable cause of action. He is

mistaken.

I. Count One.

In count one of her second amended complaint, White alleges

that Wilber violated her constitutionally protected rights by

making a pretextual stop of her motor vehicle. He continued

that assault on her constitutional rights by searching her purse

without consent, probable cause, a warrant, or other lawful

authority. As the court reads the second amended complaint, the

search of White’s purse (and discovery of heroin residue)

prompted Wilber to arrest her. That is to say, White was

arrested after the (allegedly unconstitutional) search.

Consequently, based upon the facts alleged, Wilber’s search of

White’s purse cannot be justified as having been made “incident

to arrest,” nor was it an “inventory search” of White’s personal

belongings.

8 Whether Wilber had a lawful basis for the initial motor

vehicle stop, and whether he had a lawful basis for the search

of White and her purse are issues that may (or may not) lend

themselves to resolution on summary judgment, when the factual

record is more fully developed. At this juncture, however, the

Second Amended Complaint adequately and plausibly alleges facts

sufficient to state a viable claim that, at a minimum, Wilber

violated White’s Fourth Amendment rights when he stopped her

vehicle and searched her purse without lawful authority to do

so. See generally Arizona v. Gant,

(2009). See

also Wyoming v. Houghton,

(1999) (discussing

the “automobile exception” to the warrant requirement); United

States v. Silva,

(1st Cir. 2014) (same).

II. Count Two.

In count two of her amended complaint, White alleges that

“Wilber did knowingly and intentionally provide false testimony

and/or evidence against the plaintiff to secure the additional

charge of ‘delivery of articles prohibited.’ The evidence

fabricated was the claim that plaintiff had drugs secreted in

her person when that was false.” Second Amended Complaint at

para. 51. White alleges that Wilber’s false testimony/evidence

was conveyed to both the prosecutor and the judge, which

proximately resulted in her increased bail (which she could not

9 post), her prolonged detention, and the requirement that she

submit to two body scans, a drug test, and an invasive body

cavity search.

Based upon the factual allegations of the complaint, White

has adequately and plausibly pled that Wilber’s knowing and

intentional conduct violated her constitutionally protected

rights – including her right to due process.

Although the First Circuit has not yet addressed this issue, “every court of appeals that has considered the question of whether a state actor has violated the defendant’s right to due process of law by fabricating evidence to charge or convict the defendant has answered the question in the affirmative.” Halsey v. Pfeiffer,

(3d Cir. 2014); see also Whitlock v. Brueggemann,

, 585–86 (7th Cir. 2012) (collecting cases). And, the First Circuit has emphasized in similar circumstances that “those charged with upholding the law are prohibited from deliberately fabricating evidence and framing individuals for crimes they did not commit” and that “[a]ctions taken in contravention of this prohibition necessarily violate due process.” See Limone v. Condon,

(1st Cir. 2004) (affirming the denial of qualified immunity where officers developed a witness for prosecution that they knew “would perjure himself and falsely implicate three innocent men in” a murder); see also Hernandez-Cuevas v. Taylor,

(1st Cir. 2013); Haley v. City of Bos.,

, 49–50 (1st Cir. 2011).

Because Plaintiff alleges that Captain McKiernan knowingly created and used false evidence to convict him, the Court declines to dismiss Count II at this stage in the proceedings.

10 Alvarez v. City of Worcester, No. 4:20-40004-TSH, __ F. Supp. 3d

__,

, at *3 (D. Mass. Mar. 27, 2020). See also

Zahrey v. Coffey,

(2d Cir. 2000) (“It is

firmly established that a constitutional right exists not to be

deprived of liberty on the basis of false evidence fabricated by

a government officer.”).

As the Court of Appeals for the Second Circuit has

recognized (repeatedly), a law enforcement officer’s fabrication

of evidence is inconsistent with not only the Constitution, but

also firmly-held notions of justice and fundamental fairness.

[T]he primary argument of Officer Lopez and the other defendants goes not to the genuineness of the fact issues, but to their materiality. Each of the defendants insists that so long as there was probable cause for Alfred Ricciuti’s arrest - independent of the allegedly fabricated evidence — the fabrication of evidence is legally irrelevant. In essence, they argue that as long as the arrest complied with the Fourth Amendment, the Ricciutis can have no claim for post-arrest fabrication of evidence against them.

This argument - an ill-conceived attempt to erect a legal barricade to shield police officials from liability - is built on the most fragile of foundations; it is based on an incorrect analysis of the law and at the same time betrays a grave misunderstanding of those responsibilities which the police must have toward the citizenry in an open and free society. No arrest, no matter how lawful or objectively reasonable, gives an arresting officer or his fellow officers license to deliberately manufacture false evidence against an arrestee. To hold that police officers, having lawfully arrested a suspect, are then free to fabricate false confessions

11 at will, would make a mockery of the notion that Americans enjoy the protection of due process of the law and fundamental justice. Like a prosecutor’s knowing use of false evidence to obtain a tainted conviction, a police officer’s fabrication and forwarding to prosecutors of known false evidence works an unacceptable corruption of the truth-seeking function of the trial process.

When a police officer creates false information likely to influence a jury’s decision and forwards that information to prosecutors, he violates the accused’s constitutional right to a fair trial, and the harm occasioned by such an unconscionable action is redressable in an action for damages under

.

Ricciuti v. N.Y.C. Transit Auth.,

, 129–30 (2d Cir.

1997) (emphasis supplied; citations omitted).

Conclusion

Little more need be said. Time will tell whether the

evidence will support White’s claims against Trooper Wilber.

But, at this preliminary stage of the litigation (when the court

must accept White’s factual claims as true), it is plain that

the Second Amended Complaint adequately and plausibly alleges

the essential elements of viable claims against Wilber.

12 For the foregoing reasons, defendant Haden Wilber’s motion

to dismiss (document no. 42) is denied.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

July 17, 2020

cc: Counsel of Record

13