Micah Riggs v. Robert Gibbs
Opinion
*521
Micah Riggs's businesses were searched three times by the Kansas City Police Department (KCPD). He sued under
I
A
We draw the following background facts from the district court's summary judgment opinion, which we must accept as true for purposes of deciding this appeal.
See
Burnikel v. Fong
,
On September 27, 2010, Officers Barbour and Feagans received a burglary call from the owner of Suite 200 at 3535 Broadway. When they arrived, they investigated the burglary, but were unable to find the burglar. They met Christopher Long, the building manager, who accompanied Officer Barbour as he began to search the second floor. Long opened the door to Suite 201, although there were no signs of prior entry. After Long opened the door, Officer Barbour saw lab equipment in Suite 201. Officer Barbour did not see anything that led him to believe that the lab was illegal or an active meth lab, but he did recognize chemicals marked with a skull and cross bones, which he believed were dangerous. He and Officer Feagans then asked Metro Meth Drug Task Force to process the lab, which it did without Riggs's consent. Items were seized from Suite 201.
That same day, Detective Toigo received a call that a robbery had occurred at Coffee Wonk. When he arrived, he interviewed the Coffee Wonk store clerk and began processing the scene. He looked behind the counter for fingerprints. He also went to the parking garage adjacent to the building, where he found some Syn brand incense. He called Detective Taylor, who then arrived at the scene with Detective Acton. At some point, Detective Toigo showed Detective Taylor packages of Syn incense located behind the counter at Coffee Wonk. They did not immediately know whether the Syn incense was illegal. Riggs also arrived at Coffee Wonk. Detectives Toigo, Taylor and Acton seized Syn incense from behind the Coffee Wonk counter.
B
In 2012, Gary Majors, manager of the city authority in charge of regulating liquor *522 licenses, received a tip that a business at 35th and Broadway with "coffee" in its name was selling K2, a synthetic cannabinoid. Majors searched the electronic database and determined that an establishment named "Coffee Wonk" at 3535 Broadway had a liquor license. At Majors's instruction, an employee e-mailed Sergeant Dumit and explained that Majors had received a complaint regarding K2 sales at Coffee Wonk, an establishment that sells alcohol. Some time later, Majors realized that Coffee Wonk did not have a liquor license, but he made no effort to inform KCPD of his mistake.
On October 3, 2012, Detective Whaley entered Coffee Wonk to attempt a controlled buy. He asked for either Mr. Happy or Mr. Green. The clerk explained that Coffee Wonk did not have either of these brands of incense and sold him Remix, which was stored under the counter and out of sight. Detective Whaley believed the item he purchased was contraband because of its packaging and the way it was sold. Shortly after Detective Whaley purchased the Remix, Detectives Onik and Gibbs entered Coffee Wonk. Sergeant Dumit followed them. Detective Gibbs could not see the Remix supply until he went behind the counter near the register, at which point he seized all that he found. Detective Gibbs also seized an envelope full of money, which included the money Detective Whaley used to buy the Remix. Detective Onik seized Remix found in a back room.
C
On August 1, 2014, Riggs brought suit against the officers involved in the 2010 search and the 2012 raid, claiming that both warrantless searches violated his rights under the Fourth Amendment. On February 2, 2017, the officers moved for summary judgment on the basis of qualified immunity, which the district court granted in part and denied in part. As is relevant to this appeal, the district court concluded that Officers Barbour and Feagans were not entitled to summary judgment as to liability arising out of the 2010 search and seizure of items in Suite 201 because questions of material fact exist as to whether Long had Riggs's consent to open the door to Suite 201 and whether the police officers could have reasonably believed that they had consent to search Suite 201. The district court also concluded that Detectives Toigo and Taylor were not entitled to summary judgment as to liability arising out of the 2010 seizure of incense from behind the Coffee Wonk counter because questions of material fact exist as to whether they had consent or reasonably believed they had consent to seize the incense. Finally, the district court determined that Detectives Whaley, Gibbs, and Onik and Sergeant Dumit were not entitled to summary judgment because questions of material fact exist as to the purpose of the 2012 search and whether it was reasonable for defendants to believe that Coffee Wonk had a liquor license once the search began. The officers appeal.
II
"An order denying qualified immunity can be immediately appealable despite the fact that it is interlocutory."
Mallak v. City of Baxter
,
We conclude that we lack jurisdiction over Officers Barbour and Feagans' appeal. They claim that they are entitled to qualified immunity against any liability arising out of the warrantless search and seizure of items in Suite 201 because Riggs put forth insufficient evidence to dispute that Long represented to Officer Barbour that he had authority to open the door. They concede that the legality of the search and seizure - and thus their qualified-immunity defense - depends entirely on Long's apparent authority to open the door. The district court concluded that "questions of material fact exist as to whether Long had plaintiff's consent to open the door and whether the police officers could have reasonably believed they had consent to search the premises." We lack jurisdiction to consider these genuine disputes of material fact.
See
Wallace v. City of Alexander
,
We similarly lack jurisdiction to consider Detectives Toigo and Taylor's appeal. They argue that they are entitled to qualified immunity in connection with the 2010 seizure of Syn incense from behind the Coffee Wonk counter because the incense was in "plain view." Under the plain-view doctrine, "officers may seize an object without a warrant if they are lawfully in a position from which they view the object, the incriminating character of the object is immediately apparent, and the officers have a lawful right of access to the object."
United States v. Brown
,
The parties do not dispute that the Syn incense would have been in plain view when Detective Toigo first passed behind the counter during the course of his robbery investigation. The parties also agree that the Coffee Wonk store clerk's consent to investigate the robbery gave Detective Toigo a lawful right of access to the area behind the counter at that time. But Detective Toigo did not seize the Syn incense during his initial search, and the factual circumstances surrounding the later seizure of the Syn incense are heavily disputed. Accepting Riggs's version of the events as true, he unequivocally withdrew consent to seize the Syn incense located behind the counter and the seizure was accordingly unlawful.
See
*524
Sanders
,
Finally, we lack jurisdiction over Sergeant Dumit and Detectives Whaley, Gibbs, and Onik's appeal. The officers argue that they are entitled to qualified immunity against liability arising out of the 2012 warrantless search of Coffee Wonk because Riggs did not make a substantial showing that the administrative search exception does not apply. A warrantless administrative search "is constitutional if ... the rules governing the search offer an adequate substitute for the fourth amendment warrant requirement."
United States v. Knight
,
Because material disputes of fact are at the heart of the officers' appeal, we dismiss for lack of jurisdiction.
The Honorable Fernando J. Gaitan, Jr., United States District Judge for the Western District of Missouri.
Reference
- Full Case Name
- Micah B. RIGGS Plaintiff - Appellee v. Robert GIBBS, in His Official Capacity as a Kansas City, Missouri Police Department Officer, And, as an Individual; David Barbour, in His Official Capacity as a Kansas City, Missouri Police Department Officer, And, as an Individual; Michael Feagans, in His Official Capacity as a Kansas City, Missouri Police Department Officer, And, as an Individual; Alan Whaley, in His Official Capacity as a Kansas City, Missouri Police Department Officer, And, as an Individual; Brad Dumit, in His Official Capacity as a Kansas City, Missouri Police Department Officer, And, as an Individual; Chris Onik, in His Official Capacity as a Kansas City, Missouri Police Department Officer, And, as an Individual; Teddy Taylor, in His Official Capacity as a Kansas City, Missouri Police Department Officer, And, as an Individual; Christopher Toigo, in His Official Capacity as a Kansas City, Missouri Police Department Officer, And, as an Individual Defendants - Appellants
- Cited By
- 12 cases
- Status
- Published