Vehicle searched improperly and police used excessive force


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While patrolling San Antonio at about 5:00 a.m., Officer Carl Kerawalla spotted an Enterprise box truck. It was parked on private property behind a strip mall, with its driver’s side door open. Jose Castro, a delivery driver, had parked the truck to take a nap while on break from delivering animal supplies to veterinary clinics. Kerawalla, a plainclothes officer in an unmarked police car, parked behind Castro’s truck and ran its license plates. The vehicle was not listed as stolen. Still, Kerawalla’s suspicion lingered, and he called for backup.

Uniformed officers Michael Thornton and Kimberly Kory soon arrived in police cruisers. Thornton called out to the truck requesting its occupants to exit. There was no immediate response. Thornton drew his service weapon and pointed it toward the truck’s cab. Castro was startled and unsure whether these intruders were truly police officers. Castro refused to get out of the truck, but he explained to the police his delivery break and asked the officers in broken English “what kinda of police you are?” Castro was confused by the commotion and called 911 to request police intervention.

He then turned on his truck’s emergency flashing lights so that dispatched officers could find and assist him. Meanwhile, the officers continued to command Castro to exit his vehicle. At some point, Thornton requested that dispatch send Shawn King, an officer who speaks Spanish.

Kerawalla then approached the truck from the passenger door and pointed his AR-15 at Castro’s forehead. At this point King arrived. He and Thornton approached the driver’s side cab and attempted to remove Castro. Castro pulled away from the officers and flailed his arms to avoid being removed from his truck. King struck Castro in the head and leg and then subdued him by pointing his pistol at Castro’s head. Once Castro was out of the truck, King twice struck Castro’s left arm, Thornton executed a leg sweep, and Kerawalla helped them both take Castro to the ground to handcuff him. While Kerawalla handcuffed Castro, King and Thornton applied pain compliance techniques to Castro’s back, neck, wrists, arms, knees, and shoulders. The handcuffs—which the officers left on Castro for over an hour—caused swelling, numbness, pain, and visible trauma on Castro’s hands for over five hours after the incident. Kory testified that even at this point in the incident that he still did not know whether Castro was engaged in or about to engage in criminal activity.

During the confrontation, no officer perceived an immediate threat to the safety of his life or saw Castro with a weapon. While Castro was handcuffed on the ground and out of reach of the truck, Kory searched the truck’s cab. Kory located manifests that corroborated Castro’s story, but she did not inform the other officers. King, Kerawalla, and Thornton also searched the truck’s cab and cargo hold. Thornton radioed for a K-9 unit to search Castro’s truck for narcotics. No officer attempted to log or inventory the items found in Castro’s truck. At some point, an officer placed Castro in the back of a police cruiser at the scene.

After half an hour of investigating, an officer called out that the scene was clear, meaning there was no evidence of illegal activity. Half an hour later, an assistant district attorney telephonically informed Thornton that the officers had lacked probable cause to search Castro and that the district attorney would not accept charges against him. Thornton then pulled a handcuffed Castro out of the police cruiser and verbally harassed him before releasing him. None of the officers intervened on Castro’s behalf during the incident. Hours later, Castro sought medical care at a local hospital for pain and swelling stemming from the assault. Castro testified that the encounter had caused him to experience mental and emotional distress, nightmares, and physical pain, which have affected his professional and personal life.

Castro sued Kory, Thornton, Kerawalla, and King for claims under the Fourth and Fourteenth Amendments. The district court denied the officers’ qualified immunity as to a) the claimed prolonged arrest of Castro (5th reversed); b) the search of Castro’s truck (5th affirmed); c) excessive force (5th affirmed), and the failure to intervene (5th affirmed).


A. Prolonged arrest

As earlier stated, the officers arrested Castro after he refused to exit his vehicle and held him arrested for over an hour, including approximately 45 minutes after they had cleared the scene and concluded their evidentiary mission.

We begin with the fundamental premise that to make a lawful arrest, an officer must have probable cause to believe the suspect committed a crime. Probable cause exists when the totality of facts and circumstances within a police officer’s knowledge at the moment of arrest are sufficient for a reasonable person to conclude that the suspect had committed or was committing an offense.

Here, Castro’s repeated refusals to exit his vehicle interfered with a peace officer’s duty in violation of TEXAS PENAL CODE § 38.15. Failure to comply with a police officer’s instructions creates probable cause for an arrest under this statute.  Although Castro argues he lacked the requisite mental state to commit this offense, his blatant refusals to exit his vehicle, pulling away from the officers, and flailing his arms illustrate his culpability. The district court’s reasonable suspicion holding involving the initial stop and seizure confirms that the officers were exercising lawful duty as required by this statute. Because the law justified Castro’s arrest, we turn our attention to the arrest’s duration. The officers held Castro handcuffed for approximately 45 minutes after they had cleared the scene while they determined whether to charge him. The entire incident lasted well under two hours. Even a five-hour arrest prior to release is “an insignificant restraint on … liberty” that does not violate the Fourteenth Amendment in the case of a warrantless arrest made pursuant to probable cause that does not ultimately result in charges being filed. See Shelton v. Rivera, 12 F.3d 207 (5th Cir. 1993). Consequently, the district court incorrectly denied the officers qualified immunity on Castro’s prolonged arrest claim.

B. Vehicle search

The officers searched the passenger cab and cargo area of Castro’s rented box truck while Castro was handcuffed and out of reach. On appeal, the officers argue that exceptions to the warrant requirement permitted the search: the search-incident-to-arrest and inventory search exceptions.

Although warrantless searches generally violate the Fourth Amendment, police may “search a vehicle incident to a recent occupant’s arrest…when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” See SCOTUS Arizona v. Gant, 556 U.S. 332 (2009). These searches, however, are limited to the area from within which the suspect might gain possession of a weapon or destructible evidence. Here, Castro was restrained and out of reach of the truck. This exception is inapplicable.

The Fourth Amendment also may permit warrantless inventory searches in which automobiles are impounded and their contents are inventoried. See SCOTUS South Dakota v. Opperman, 428 U.S. 364 (1976). Inventory searches do not, however, circumvent the warrant requirement if they are evidentiary in nature rather than for a caretaking function of the impounded vehicle and/or its contents. Circumstances here show that this search was for evidentiary purposes rather than for inventory purposes: (1) the officers created no log or inventory of items searched or located in Castro’s truck; (2) Thornton radioed for a K-9 unit to search Castro’s truck for narcotics; and (3) the officers never actually impounded Castro’s truck. This exception is also inapplicable.

Thus, neither of the two warrant exceptions that are suggested by the officers justify the officers’ search here. As such, the district court correctly denied the officers qualified immunity on Castro’s illegal search claim.

C. Excessive force

The officers pointed firearms at Castro, forcibly removed him from his vehicle, and then tackled and handcuffed him. On appeal, the officers argue that the severity of Castro’s crime, the immediate threat to the safety of the officers, and Castro’s resisting arrest justified their use of force.

To determine excessive force violations, courts examine the severity of the crime at issue, whether the suspect posed a threat to the safety of the officers or others, and whether the suspect actively resisted arrest or attempted to evade arrest. See SCOTUS Graham v. Connor, 490 U.S. 386 (1989).

Here, the officers had no probable cause to suspect Castro of a crime beyond his initial resistance to police commands. Nor did the officers reasonably believe Castro to be a genuine threat to their safety. Although Castro initially pulled away from the officers and flailed his arms in defense while they removed him from his vehicle, the force used by the officers, particularly pointing a gun at his head, was clearly disproportionate to Castro’s resistance, which did not endanger the police. See Petta.

Consequently, Castro has made a showing of injuries resulting directly from excessive, unreasonable force, which if proved at trial, can qualify as a violation of his protected constitutional rights. Finally, there can be no question that the right at issue here, i.e., freedom from excessive force, is clearly established. Although we have previously held in some cases that pointing a gun at a suspect does not rise to the level of a constitutional violation, this case is not the case. Here, the officers pointed multiple guns throughout the encounter at an unarmed, confused, and only mildly disruptive suspect. To the point, the district court correctly denied the police claim of qualified immunity on Castro’s excessive force claim.

D. Failure to intervene

Finally, we consider the district court’s denial of qualified immunity on Castro’s failure to intervene claim against all four officers. As earlier indicated, no officer intervened on Castro’s behalf during the incident. On appeal, the officers argue that because there were no underlying constitutional violations, they had no obligation to intervene, and, thus, they are entitled to qualified immunity.

A failure to intervene claim arises when an officer, who can prevent harm caused by a fellow officer’s constitutional violations, fails to act. See Kitchen. Here, given that we have already held that Castro has made a showing of constitutional violations, the predicate of the officers’ defense, i.e., no underlying constitutional violations, is without merit. It follows that the district court correctly denied each of the officers qualified immunity to this claim.