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Green v. Howlett

United States District Court, D. South Carolina, Florence Division

July 8, 2019

DARRELL GREEN, Plaintiff,
v.
S/A TREVOR HOWLETT; S/A GLENN WOODS; AGENT Y JONES; AGENT DERRICK SUGGS; OFC. SHANE KEITH, Defendants.

          REPORT AND RECOMMENDATION

          THOMAS E. ROGERS, III, UNITED STATES MAGISTRATE JUDGE

         This is a civil action filed pro se by Darrell Green (“Plaintiff”/ “Green”) on January 12, 2018.[1] (ECF No. 1). Green is currently housed at the Evans Correctional Institution. This matter is currently before the court on the motion for summary judgment filed on behalf of Defendants Howlett, Woods, Suggs, Jones, and Keith.[2](ECF #73). As the Plaintiff is proceeding pro se, the court issued an order on or about November 1, 2018, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th 1975), advising Green of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately. Green filed a response, Defendants filed a reply, and Green filed two more responses. (ECF Nos. 75, 76, 77, and 81).

         DISCUSSION

         STANDARD FOR SUMMARY JUDGMENT

         The federal court is charged with liberally construing the complaints filed by pro s e litigants, to allow them to fully develop potentially meritorious cases. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). The court's function, however, is not to decide issues of fact, but to decide whether there is an issue of fact to be tried. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, Weller v. Dep't of Social Servs., 901 F.2d 387 (4th Cir. 1990), nor can the court assume the existence of a genuine issue of material fact where none exists. If none can be shown, the motion should be granted. Fed.R.Civ.P. 56(c). The moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Celotex, 477 U.S. 317. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).

         To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves). Rather, the party must present evidence supporting his or her position through “depositions, answers to interrogatories, and admissions on file, together with . . . affidavits, if any.” Id. at 322; see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.

         ANALYSIS

         Darrell Green is a state prisoner and alleges his Fourth, Fifth, and Fourteenth Amendment rights have been violated when he was subjected to trespass by officers/agents to place a GPS tracking device on the vehicle in his yard which led to his arrest. Specifically, Green alleges on August 6, 2014, and August 7, 2014, he was subjected to illegal trespass by Defendants Howlett, Woods, Suggs, and Jones when they attached a GPS tracking device on a vehicle on Green's property in Conway, South Carolina. Further, Green alleges that on August 13, 2014, while driving on I-95, he was stopped in Florence County by Defendant Keith and arrested while being monitored by the illegally placed GPS tracking device.[3] In his complaint, Green alleges there was no warrant to gain access to his property and no warrant to place the tracking device. Green requests monetary, declaratory, and injunctive relief.

         Defendants filed their motion for summary judgment and affidavits in support. Defendants submitted the affidavit of Trevor Howlett in support of their motion who attests that at all times relevant to Green's complaint, he was employed by the South Carolina Law Enforcement Division (“SLED”) as a Special Agent. (Howlett affidavit, ECF No. 73-2). In April of 2014, SLED Agents and the Fifteenth Circuit Drug Enforcement Unit (“DEU”) initiated an investigation into a cocaine and cocaine base trafficking organization in Horry County, South Carolina involving Darrell Green. (Id.). On April 21, 2014, Howlett along with other SLED agents and officers of the Fifteenth Circuit DEU conducted a controlled crack cocaine buy from Green utilizing a confidential informant. (Id.) Agents observed Green driving a grey in color Dodge Charger bearing South Carolina registration IIC955 to and from the controlled buy and the informant informed the Agents that Green was driving the Dodge Charger and was the sole occupant. (Id.) On April 29, 2014, SLED Agents and officers of the Horry County DEU conducted a second controlled buy of crack cocaine from Green utilizing a confidential informant. (Id.) During the buy, Green was driving the same vehicle. (Id.) The buy lasted only a matter of seconds, and Green drove away as officers approached the location. Agents attempted mobile surveillance, but were unable to catch up to Green and surveillance was broken. (Id.) On May 20, 2014, SLED Agents and officers of the Horry County conducted a third controlled crack cocaine buy from Green utilizing a confidential informant. (Id.) Due to prior difficulty surveilling Green during the previous buys, Agents utilized both mobile and aerial surveillance to follow Green. (Id.) After the buy, Green was observed traveling around Horry County until he eventually returned to 315 Highway 66 and parked the vehicle in the rear of the residence. (Id.) After observing three drug buys and difficulty maintaining surveillance on Green, Agent Trevor Howlett applied for a court order on July 28, 2014, seeking authorization to place a GPS tracking device on the Dodge Charger in which Green was observed conducting drug transactions. (Id.) Agent Howlett was able to show probable cause existed to believe Green was involved in trafficking illegal drugs so that the GPS tracking device was necessary. (Id.) On July 28, 2014, the Fifteenth Judicial Circuit Court Judge granted the application and found probable cause existed and issued an Ex Parte Order authorizing SLED agents and assisting officers to enter the property of 315 Highway 66, Conway, South Carolina, to install a GPS tracking device on the Dodge Charger. (Id.; see application, affidavit, and order ECF Nos. 73-2 at 8-31). The court ordered the device be installed no longer than ten days after the entry of the order, and shall be monitored for no longer than thirty days after installation. (Id.) The application and order were entered under seal. (Id.) After obtaining the court's order, Agents Howlett and Wood of SLED and agents Derrick Suggs and Casey Jones of the 15th Circuit Enforcement Unit traveled to the property at 315 Highway 66 on August 6, 2014, where Agents Howlett and Suggs entered the property pursuant to the court order and placed a GPS tracking device on the identified Dodge Charger. (Id.) The agents re-entered the property on August 7, 2014, to remove the malfunctioning GPS and replaced it with a new GPS tracking device that was working correctly. (Id.) The agents continued to monitor Green. (Id.) On August 13, 2014, while monitoring the GPS tracking device, Howlett learned that the Dodge Charger had left the county and traveled to a location in Holly Hill, South Carolina known for drug activity and had been identified as a possible source location for Green's cocaine supply. (Id.). The GPS tracking device revealed Green left Holly Hill after 11:00 p.m. (Id.). Agents Wood and Howlett traveled to Holly Hill and located the Dodge Charger traveling north on I-95 at approximately 12:00 a.m. on August 14, 2014. (Id.) They contacted the Florence County Sheriff's office to notify them that the Dodge Charger had recently left a known drug area in Holly Hill, South Carolina and was traveling toward Florence County possibly being driven by Green who was potentially transporting cocaine. (Id.) On August 14, Corporal Shane Keith with the Florence County Sheriff's Office observed the Dodge Charger speeding on I-95 and initiated a traffic stop. (Id.) Agent Wood and Howlett remained in the area but did not repond to the traffic stop until requested at approximately 1:00 a.m. and were informed that Green attempted to flee, was apprehended, and told deputies that he had a large quantity of drugs in the vehicle. (Id.) During the search of the vehicle, the deputies found two large plastic bags containing approximately 207.5 grams of cocaine. (Id.) Green was subsequently charged in Florence County for Trafficking Cocaine. (Id.) Later on August 14, 2014, SLED agents and the Fifteenth Circuit DEU executed search warrants at two properties associated with Green and, after the collection of evidence, Howlett obtained and served arrest warrants on Green. (Id.). Green was charged with: Trafficking Cocaine; Trafficking Crack Cocaine; PWID Marijuana; Unlawful Possession of a Schedule IV Controlled Substance; PWID Crack Cocaine; PWID Cocaine; five counts of Possession of a Pistol by a Convicted Felon; and two counts of Possession of a Stolen Pistol. Additionally, Howlett obtained and served arrest warrants on Green for four counts of Trafficking Crack Cocaine for the controlled drug buys in Horry County prior to August 14, 2014.

         On or about October 27, 2015, Green pleaded guilty to the lesser included offense of ‘Trafficking in Cocaine, 28 grams or more, but less than 100 grams.' (Id. see, Exhibit 3 to Howlett Affidavit). He received a negotiated sentence of eighteen (18) years in prison. (Id.). As part of the negotiated sentence and guilty plea, the other charges against him were dismissed. (Id.). None of the named Defendants had any involvement with Green's prosecution beyond the investigation described above. Defendants deny Green was subjected to an unreasonable search under the Fourth Amendment as the GPS tracking device in question was placed pursuant to a facially valid court order, and agents at all times acted within the limitations set by that order. Further, Defendants deny Green's rights have been violated in any way. (ECF No. 73-1 at 2-6).

         Green filed three separate responses to the motion for summary judgment. (ECF Nos. 75, 77, and 81). In his responses, he clarifies that this case is only about the trespass and placing of the GPS device on the vehicle. Specifically, Green states that “This action is not about a drug charge but about the trespass onto the property of 315 hwy 66 of Conway S.C. to install a tracking device on a 2008 Dodge Charger owned by the plaintiff.” (ECF No. 77 at 2). Green argues that the “Defendants are determined to make the case about innocent and guilt of a sentence imposed upon the Plaintiff.” (Id. at 3). Further, Green states that “Heck v. Humphry attacks the sentence; Plaintiff is attacking solely the trespass and illegal action of the trespass. The fact that this egregious behavior happen whether plaintiff would or would not have been convicted.” (Id. at 4). In his third response, Green again states that Heck does not apply in this case because “This is not a collateral attack on my conviction . . .” (ECF No. 81 at1).

         STATUTE OF LIMITATIONS

         Defendants argue that Green's claims are time barred by the applicable statute of limitations. Defendants contend that the incident giving rise to Green's claim for violation of his Fourth Amendment rights occurred between August 6, 2014 and September 3, 2014, when the GPS was removed from the vehicle while impounded at the Florence County Sheriff's Office impound, which dates are more than three years prior to the filing of this action.

         In response to Defendants' argument that the action is time barred, Green argues that he was unaware that a “crime took place under the color of law by the Defendants until his incarceration and careful review of his rule (5) which he received in 2016 at Lee County Correctional institution through the mailroom system when he realized the warrant had not been in the Rule (5) Brady material.” (ECF No. 77 at 4). Plaintiff attached a copy of an order dated July 25, 2018, finding it necessary for the preparation of Petitioner's PCR case to unseal the GPS tracking warrant issue for that specific purpose. (ECF No. ...


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