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Romano v. City of San Marcos

United States District Court, W.D. Texas, Austin Division

September 11, 2017

EDWARD F. ROCKY ROMANO and CHARLES E. SOECHTING, Plaintiffs,
v.
CITY OF SAN MARCOS, Defendants.

          ORDER

          ROBERT PITMAN UNITED STATES DISTRICT JUDGE

         Before the Court is Defendants' Motion for Summary Judgment. (Dkt. 18). Having reviewed the parties' arguments, the factual record, and the relevant law, the Court issues the following order.

         BACKGROUND

         Plaintiffs Rocky Romano ("Romano") and Charles E. Soechting ("Soechting") bring this civil rights action against Defendants City of San Marcos and various employees of its police department, including Chief of Police Chase Stapp, Assistant Chief Bob Klett, and officers Wade Parham, Don Lee, and Lee Harris (collectively "Defendants").

         This controversy stems from the search of an airplane hangar owned by Plaintiffs Romano and Soechting on April 14, 2015. On that day, the United States Department of Homeland Security contacted the San Marcos Police Department ("SMPD") with a request that it investigate an airplane suspected of involvement in drug trafficking activity. Homeland Security purportedly informed SMPD that a narcotics canine unit had alerted on the plane during an open air search in the South Padre area, but that no narcotics were found and that probable cause was lacking. Defendants assert that Homeland Security intimated that narcotics could have been unloaded from the plane before the drug sniff, and that the plane could be carrying narcotics to San Marcos. Homeland Security asked that SMPD send officers and a canine unit to investigate the plane upon its arrival in San Marcos. Defendants assert that the owner of the airplane was not identified during this call.

         In response to the request from Homeland Security, SMPD Corporal Jesse Saavedra dispatched two SMPD police patrol units and a canine unit to assist in the investigation of the suspect plane at the San Marcos Municipal Airport. Saavedra states that he saw a plane on the tarmac upon his arrival that he confirmed the information provided by Homeland Security. The officers observed two men-later identified as the pilot and Romano-exit the plane and get into separate vehicles. SMPD officers later stopped the vehicles upon observing violations of the Texas Transportation Code. By the time Defendant Lee arrived with a drug dog to perform an open-air search, the plane had been placed in a hangar. The SMPD personnel left the airport by 6 p.m.

         Saavedra briefed Defendant Harris on the call from Homeland Security and SMPD's resulting actions upon returning to the police station. Harris is a detective with the Hays County Narcotics Task Force and was, according to Defendants, the primary agent in charge of the investigation of the plane. Perceiving gaps in the investigation that required follow-up, Harris responded to the airport later that evening. While en route, Harris contacted Assistant Chief Klett to brief him on the matter and requested support from Lee, who would bring the drug dog, Odin.

         Lee, Harris, and a third officer arrived at the airport around 9 p.m. Harris obtained identification of the hangar that housed the suspect plane while Lee performed a baseline canine sniff of two nearby hangars. Klett arrived during the baseline sniff and sought to determine who owned the suspect hangar. When Lee moved to perform a sniff search of the suspect hangar, he asserts that, consistent with his training, he checked each door to see if it was locked. He asserts that he found the back door unsecured. Meanwhile, Klett determined that Plaintiffs owned the hangar and advised the other officers on the scene of that fact. Because Harris had previously met Soechting and had his cell phone number stored in his phone, he decided to call Soechting to inform him of what happened at the hangar.

         Harris claims that he explained to Soechting that the officers found the back door unsecured and that Soechting consented to the officers' entering and searching the hangar. Soechting strongly denies this, claiming instead that he emphatically refused consent to search and instead told the officers to wait until he reached the airport. As an attorney, Soechting states that he keeps confidential client files in the hangar and for that reason would never consent to unsupervised access. Regardless, it appears to be undisputed that Harris informed the other officers that Soechting had consented to a search of the hangar. The officers then entered the hangar to perform a search. Defendants assert that Odin positively alerted at the seam of the compartment door above the wing of the plane. Harris purportedly told Soechting about this and Soechting then said he would come to the airport.

         Soechting arrived at the airport to discover several officers in his hangar. While there, Soechting demanded that the doorknob to the hangar door be dusted for fingerprints. According to him, the door had been locked and must have been forced open, perhaps during a burglary. Parham refused to dust for fingerprints, reasoning that there was no indication that anything had been stolen and that, in any case, the only fingerprints on the doorknob were likely to belong to Harris, who had recently opened the door. Soechting later consented to a search of the aircraft. After the pilot arrived, the officers were allowed to enter the plane to search for the presence of narcotics. No narcotics were found and the parties have not suggested that any further law enforcement actions have taken place with respect to the Plaintiffs, the airplane, or the hangar.

         Plaintiffs assert claims under 42 U.S.C. § 1983. They allege that the search violated their Fourth Amendment rights and that it was in retaliation for the exercise of their rights under the First Amendment.

         LEGAL STANDARD

         Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure only "if the movant shows there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A dispute is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986). "A fact issue is 'material' if its resolution could affect the outcome of the action." Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The party moving for summary judgment bears the initial burden 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, 477 U.S. 317, 323 (1986). "[T]he moving party may [also] meet its burden by simply pointing to an absence of evidence to support the nonmoving party&#39;s case." Boudreaux v. Swift Tramp. Co.,402 F.3d 536, 544 (5th Cir. 2005). The burden then shifts to the nonmoving party to establish the existence of a genuine issue for trial. Matsushita Eke. Indus. Co., Ltd. v. Zenith Radio Cop.,475 U.S. 574, 585-87 (1986); Wise v. E.I. Dupont de Nemours <& Co.,58 F.3d 193, 195 (5th Cir. 1995). After the non-movant has been given the opportunity to raise a genuine factual issue, if no reasonable juror could find for the non-movant, summary judgment will be granted. Mis ...


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