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Court of Appeals of Kentucky.


NO. 2010–CA–001235–MR

Decided: January 20, 2012




Double Lacy Nicole Burden (“Burden”) appeals from a summary judgment by the Kenton Circuit Court dismissing her claims against police officers Mark Hampton (“Officer Hampton”) and Matt Hicks (“Officer Hicks”) arising out of her arrest for possession of marijuana.   We agree with the trial court that Burden failed to present any affirmative evidence to support her allegation that the officers lacked probable cause to believe she had committed the offense.   The existence of probable cause bars most of her claims against the officers, and the trial court properly dismissed the remaining claims.   Hence, we affirm.

This cause of action arose on March 19, 2007, when Burden was a senior at Simon Kenton High School in Kenton County, Kentucky. Double In the course of conducting a random drug sweep at the high school, a police dog alerted on Burden's car.   Burden was called out of class, and she consented to a search of the vehicle.   During a search of the vehicle, police officers found a marijuana seed in the ashtray and a trace amount of a green, leafy substance on the floorboard.   Burden was arrested and charged with possession of marijuana.   While these charges were pending, Burden was temporarily suspended from school and was later placed on in-school suspension.   Subsequently, and prior to trial, the charges against Burden were dismissed at the request of the Commonwealth on May 2, 2007.

On August 10, 2007, Burden filed this action against the officers involved in her arrest, Kenton County Police Officer Brett Benton (“Officer Benton”), and City of Independence Police Officers Mark Hampton and Matt Hicks.   In her complaint, she asserted a federal claim under 42 U.S.C.A. § 1983 for violation of her constitutional rights under color of state law.   She also alleged state law causes of action for fraud, forgery, malicious prosecution, false imprisonment, fabrication of evidence, defamation, violation of her state constitutional rights against unreasonable search and seizure, violation of Kentucky Revised Statutes (KRS) 218A.350(4), and intentional infliction of emotional distress.   Because Burden asserted a federal cause of action, the officers removed the action to Federal District Court.   By agreed order, Burden dismissed her 42 U.S.C.A. § 1983 claim and the matter was returned to the trial court.   Following a period of discovery, the officers moved for summary judgment on Burden's claim.   On April 30, 2010, the trial court entered an agreed order dismissing the claims against Officer Benton, the canine officer.

Thereafter, the trial court took under submission the summary judgment motions by Officers Hampton and Hicks.   On June 8, 2010, the trial court granted the motions for summary judgment, finding that Burden had failed to present genuine issues of material fact on any of her remaining claims.   Burden now appeals from that order.

The standard of review governing an appeal of a summary judgment is well settled.   We must determine whether the trial court erred in concluding that there was no genuine issue as to any material fact and that the moving party was entitled to a judgment as a matter of law.  Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App.1996).   Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”   Kentucky Rules of Civil Procedure (CR) 56.03.   In Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255, 256 (Ky.1985), the Supreme Court of Kentucky held that for summary judgment to be proper, the movant must show that the adverse party cannot prevail under any circumstances.   The Court has also stated that “the proper function of summary judgment is to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor.”  Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.1991).   Since a summary judgment involves no fact finding, this Court's review is de novo, in the sense that we owe no deference to the conclusions of the trial court.  Blevins v. Moran, 12 S.W.3d 698, 700 (Ky.App.2000).

Burden essentially alleges that Officer Hampton and Officer Hicks conspired to fabricate evidence against her and to falsely charge her with possession of marijuana.   Burden contends that their actions and the charges against her were part of a scheme to pressure her to incriminate her boyfriend, who they suspected of trafficking in marijuana.   Based on this conduct, she contends that Officers Hampton and Hicks are subject to liability for the torts of malicious prosecution and false imprisonment.   Burden also argues that misrepresentations on police and laboratory reports and on the property room listings amount to fraud and forgery and subject the officers to liability for defamation.   Finally, Burden maintains that the officers' conduct was so egregious that it amounts to intentional infliction of emotional distress.

Following the dismissal of the claims against Officer Benton, the canine handler, Burden does not seriously argue that the police lacked probable cause for the search of her vehicle.   There is no dispute that the police dog alerted on her car.   Furthermore, as the trial court noted, Burden consented to the search of her vehicle.   Rather, Burden's claims for malicious prosecution and false arrest turn on the existence of probable cause to support her arrest.   See, Prewitt v. Sexton, 777 S.W.2d 891, 894–95 (Ky.1989), and Lexington–Fayette Urban County Government v. Middleton, 555 S.W.2d 613, 619 (Ky.App.1977).

As a general rule, the existence of probable cause for an arrest is an issue of law for the court to decide.  Prewitt, supra at 894.   But where the evidence is conflicting, the existence of facts and circumstances amounting to probable cause is a question of fact to be determined by the jury.  Schott v. Indiana Nat. Life Ins. Co., 160 Ky. 533, 169 S.W. 1023, 1024 (1914).   As noted in Wilson v. Commonwealth, 403 S.W.2d 705 (Ky.1966), probable cause for arrest is determined:

by factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.   It is a pragmatic question to be determined in each case in the light of the particular circumstances and the particular offense involved.

‘Probable cause does not depend on the actual state of the case in point of fact, as it may turn out upon legal investigation, but on knowledge of facts and circumstances that would be sufficient to induce a reasonable belief in the truth of the accusation.   It depends on the facts known, at the time of the arrest, to the person by whom the arrest is made, from which it follows that an arrest cannot be justified by what a subsequent search discloses.   On the other hand, if probable cause existed at the time of the arrest, the fact that investigation proves the person arrested to be innocent does not make the arrest unjustifiable.

‘In determining probable cause, all the information in the officer's possession, fair inferences therefrom, and observations made by him, are generally pertinent;  and facts may be taken into consideration that would not be admissible on the issue of guilt.’

Id. at 707–08, quoting 5 Am.Jur.2d Arrest § 48.   See also, Baltimore v.

Commonwealth, 119 S.W.3d 532, 538 (Ky.App.2003).

In this case, while there may be some inconsistencies concerning how the evidence was collected and handled, there is no dispute that the substance submitted by Officers Hampton and Hicks subsequently tested positive as marijuana.   As long as the evidence was actually found in Burden's car, the officers had probable cause to arrest Burden and to charge her with possession of marijuana.   Thus, in order to go forward with her claims for malicious prosecution and false arrest, Burden must present evidence showing that the officers either planted the marijuana in her car or otherwise misrepresented that the marijuana was found in her car.  Prewitt, supra at 894–95.

To support an inference of such misconduct, Burden points to a number of discrepancies and inconsistencies in the accounts and actions by the officers.   First, Burden points to a number of inconsistencies in the officers' testimony concerning the search of her car.   While several officers testified that Officer Hampton was not involved in the search of Burden's vehicle, Officer Hampton's report indicates that he was.   The officers' testimony was also inconsistent as to whether the marijuana was found in the ashtray or on the floorboard of her car.   There is also conflicting testimony about whether the marijuana residue was found on the floorboard of the driver's side or the passenger's side.   The officers stated that they spotted the evidence in a full ashtray and on the floorboard and were able to retrieve the evidence with their bare hands.   Moreover, Burden notes that the only evidence recovered was a single marijuana seed and a trace amount of marijuana so small that it did not register a weight.   Given these inconsistencies, Burden contends a jury could reasonably find that the officers lied about finding the marijuana in her car.

Burden next focuses on alleged misrepresentations in various reports filed by the officers.   Officer Hampton's report stated that Burden admitted the substance found was marijuana and that the marijuana was hers, but he later stated that Burden never made any explicit admissions.   Furthermore, in his report submitting the substance to the laboratory for testing, Officer Hampton listed its weight as .01 grams.   He later admitted that material did not record any weight.   Finally, Burden points to inconsistent descriptions of the substance and irregularities in the handling of the evidence while it was in police custody.   Burden maintains that these inconsistencies cast further doubt on the credibility of the officers' accounts.

We take Burden's allegations very seriously, as they suggest police misconduct which, if proven, would undermine confidence in the integrity of law enforcement and the judicial process.   Furthermore, on a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party, and all doubts are to be resolved in her favor.   Steelvest, supra at 480.   Nevertheless, a party opposing a properly supported summary judgment motion cannot defeat that motion without presenting at least some affirmative evidence demonstrating that there is a genuine issue of material fact requiring trial.  Hubble v. Johnson, 841 S.W.2d 169, 171 (Ky.1992).

After reviewing the record, we cannot find any affirmative evidence of the type of deliberate misconduct which would negate a finding that Officers Hampton and Hicks had probable cause to believe that Burden possessed marijuana.   Burden presents no evidence to question the testimony that the police dog alerted on her car.   Furthermore, as the trial court noted, the inconsistencies in the police testimony and reports about the search merely fall within the normal variation expected when different people describe the same event.   The irregularities in the handling of the evidence might have affected its admissibility in a criminal proceeding.   Likewise, the discrepancies in the officers' accounts could have been sufficient to raise reasonable doubt about Burden's guilt.   However, the officers' actions, even when viewed in the light most favorable to Burden, do not reasonably suggest the type of active misconduct she alleges here.

Consequently, the trial court properly found that Officers Hampton and Hicks had probable cause to arrest Burden for possession of marijuana.   Given the existence of probable cause, she cannot maintain an action against the officers for malicious prosecution and false imprisonment.   Therefore, the trial court properly dismissed these claims.

The existence of probable cause also precludes Burden's claim for defamation.   Public officers and employees, such as Officer Hicks and Officer Hampton, are entitled to “qualified official immunity” for discretionary acts or functions, that were made in good faith, and were within the scope of the their authority.  Rowan County v. Sloas, 201 S.W.3d 469, 475 (Ky.2006), citing Yanero v. Davis, 65 S.W.3d 510, 522 (Ky.2001).   Although Burden questions their motivations in pursuing the charges and in their handling of the charges after she was arrested, the officers had a reasonable basis to believe that Burden possessed marijuana.   Furthermore, there is no evidence that the officers abused that privilege by publicizing the charges beyond the scope of their official duties.   Consequently, the officers are immune from liability for their actions in reporting those charges.

Burden next asserts that the misrepresentations on various reports filed by the officers subject them to liability for fraud and forgery.   On the fraud claim, a party claiming harm must establish six elements of fraud by clear and convincing evidence as follows:  a) material representation;  b) which is false;  c) known to be false or made recklessly;  d) made with inducement to be acted upon;  e) acted in reliance thereon and;  f) causing injury.  United Parcel Service Co. v. Rickert, 996 S.W.2d 464, 468 (Ky.1999), citing Wahba v. Don Corlett Motors, Inc., 573 S.W.2d 357, 359 (Ky.App.1978).   Burden also focuses on Officer Hampton's statements in his report to the laboratory and on the property room listings.   She again points to the inconsistent descriptions of the marijuana and the manner in which it was found.   Specifically, Burden points to the property room listings and report to the laboratory on which Officer Hampton stated the marijuana weighed .01 grams and had a value of $5.00.   Officer Hampton conceded that these descriptions were inaccurate.   There was insufficient marijuana to accurately weigh and as such, it actually had minimal or no value.   Officer Hampton stated it was department policy to enter .01 grams as a weight if the amount of marijuana does not register a measurable weight;  however, other officers stated there was no such policy.

In rejecting the fraud claim, the trial court found that none of the representations by the officers were material in the bringing of the criminal case.   We agree.   A matter is material if:

(a) a reasonable man would attach importance to its existence or nonexistence in determining his choice of action in the transaction in question;  or

(b) the maker of the representation knows or has reason to know that its recipient regards or is likely to regard the matter as important in determining his choice of action, although a reasonable man would not so regard it.

REST 2d TORTS § 538 (1977).

As noted above, Burden presented no affirmative evidence to support her allegation that the officers fabricated evidence against her or intentionally made false allegations against her.   Thus, the officers had probable cause to arrest and charge Burden with possession of marijuana, notwithstanding any subsequent misrepresentations in the reports and documentation.   Furthermore, while some of the descriptions used in the police report, the report to the laboratory, and on property room listings were inconsistent and possibly inaccurate, these discrepancies did not affect the nature or severity of the charges against Burden.   Consequently, we cannot find that the alleged misrepresentations involved any significantly material matters.

We further agree with the trial court that Burden cannot maintain a cause of action for forgery, even if she had sufficiently stated a claim for fraud.   Burden seeks to recover under KRS 516.030, which sets out the crime of second-degree forgery.  KRS 516.030.   That statute provides, in pertinent part, that a person is guilty of second-degree forgery:

when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument which is or purports to be or which is calculated to become or to represent when completed:

(b) A public record or an instrument filed or required or authorized by law to be filed in or with a public office or public employee;  or

(c) A written instrument officially issued or created by a public office, public employee or governmental agency.

Even if Officer Hampton's representations in the report to the laboratory contained false information, his actions cannot be understood as forgery as it is defined in the statute.   Officer Hampton prepared the reports in the course of his official duties.   Consequently, the reports did not purport to represent anything other than what they were.   Therefore, Burden cannot maintain a civil claim for forgery.

Finally, we conclude that the trial court properly dismissed Burden's claim for intentional infliction of emotional distress.   This tort, also known as the tort of outrage, is intended as a “gap-filler”, providing redress for extreme emotional distress where traditional common law actions do not.   Where an actor's conduct amounts to the commission of one of the traditional torts for which recovery for emotional distress is allowed and the conduct was not intended only to cause extreme emotional distress in the victim, the tort of outrage will not lie.   Recovery for emotional distress in those instances must be had under the appropriate traditional common law action.  Banks v. Fritsch, 39 S.W.3d 474, 481 (Ky.App.2001).

The finding of probable cause precludes Burden's claim for false arrest.   Even if there was evidence to support that claim, that cause of action allows recovery for emotional damages.   Consequently, Burden must show that the officers' actions were intended only to cause her extreme emotional distress, rather than to merely touch or to deprive her of her liberty.  Id. We find no evidence in the record which would support such a finding by the jury.   Therefore, the trial court properly dismissed this claim as well.

Accordingly, the summary judgment by the Kenton Circuit Court is affirmed.


 Double WINE, JUDGE: