United States District Court, D. Massachusetts
ORDER ON DEFENDANT'S MOTION FOR SUMMARY
Sorokin United States District Judge.
January 13, 2016, plaintiff Jon Whyman filed a complaint in
this Court against Sergeant Scott Whalen, a police officer in
the city of Somerville, Massachusetts. Doc. No. 11. The
Complaint alleges violations of the Fourth and Fourteenth
Amendments of the United States Constitution and the
Massachusetts Civil Rights Acts (“the M.C.R.A.”),
intentional infliction of emotional distress
(“IIED”), malicious prosecution, interference
with advantageous relations, and defamation, all arising out
of Whalen's search of Whyman's home executed under
the authority of a state court search warrant and
Whalen's subsequent interaction with an employee of
Whyman. Id. Whalen moves for summary
judgment, Doc. No. 44; Whyman opposes. Doc. No. 52.
THE LEGAL STANDARD
judgment is appropriate when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A genuine dispute “is one on which
the evidence would enable a reasonable jury to find the fact
in favor of either party.” Perez v. Lorraine
Enters., Inc., 769 F.3d 23, 29 (1st Cir. 2014). “A
‘material' fact is one that is relevant in the
sense that it has the capacity to change the outcome of the
jury's determination.” Id. (citation
party “has properly supported its motion for summary
judgment, the burden shifts to the non-moving party, who
‘may not rest on mere allegations or denials of his
pleading, but must set forth specific facts showing there is
a genuine issue for trial.'” Barbour v.
Dynamics Research Corp., 63 F.3d 32, 37 (1st Cir. 1995)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256 (1986)). The Court is “obliged to view the
record in the light most favorable to the nonmoving party,
and to draw all reasonable inferences in the nonmoving
party's favor.” LeBlanc v. Great Am. Ins.
Co., 6 F.3d 836, 841 (1st Cir. 1993). Even so, the Court
is to ignore “conclusory allegations, improbable
inferences, and unsupported speculation.” Prescott
v. Higgins, 538 F.3d 32, 39 (1st Cir. 2008) (quoting
Medina-Muñoz v. R.J. Reynolds Tobacco Co.,
896 F.2d 5, 8 (1st Cir. 1990)). A court may enter summary
judgment “against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear
the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
FOURTH AMENDMENT CLAIM
of the Complaint challenges, under the Fourth Amendment, the
legality of the state court search warrant because, according
to Whyman, the affidavit (“The Affidavit”)
submitted by Whalen in his application for a warrant to
search the home of Whyman (1) on its face fails to establish
probable cause and (2) is untruthful and contains a material
omission without which probable cause would not exist. Doc.
No. 11 at ¶¶ 47-56.
[an] affidavit, on [its] face, demonstrate[s] probable
cause, is a question of law, ” McColley v. Cty. of
Rensselaer, 740 F.3d 817, 835 n.10 (2d Cir. 2014);
see Stewart v. Sonneborn, 98 U.S. 187, 194 (1878)
(“The question of probable cause is a mixed question of
law and of fact. Whether the circumstances alleged to show it
probable are true, and existed, is a matter of fact; but
whether, supposing them to be true, they amount to a probable
cause, is a question of law.”). Probable cause exists
where “the totality of the circumstances suggests that
‘there is a fair probability that contraband or
evidence of a crime will be found in a particular
place.'” United States v. Gifford, 727
F.3d 92, 98 (1st Cir. 2013) (quoting United States v.
Hicks, 575 F.3d 130, 136 (1st Cir.2009). To establish
probable cause, an affidavit submitted with a warrant
application “need only warrant a man of reasonable
caution to believe that evidence of a crime will be found.
The probable cause standard does not demand showing that such
a belief be correct or more likely true than false.”
United States v. Feliz, 182 F.3d 82, 86 (1st Cir.
1999) (citing Texas v. Brown, 460 U.S. 730, 742
(1983) (plurality opinion)).
affidavit supplied the following evidence to establish a
“fair probability” that evidence of a crime would
be found at Whyman's residence at 17 Kenney Drive:
1. Jon Whyman previously dated a woman named Suzanne Cyr.
Doc. No. 49-4 at ¶ 15.
2. Suzanne Cyr's mother Teresa Vicente reported
“receiving disturbing text messages” the focus of
which was her daughter Cyr, as well as multimedia messages
containing nude photographs of Cyr. Doc. No. 49-4 at ¶
3. Other members of Cyr's family reportedly had also
received similar messages. Id. at ¶ 5.
3. The person “texting these messages appear[ed] to
know a lot of information about [Cyr].” Id.
The person indicated that “they [knew] where Cyr [was]
currently working and that she [was] working at a bar a
couple nights a week.” Id. at ¶ 6.
4. Cyr's phone was reportedly “hacked” by a
male that she knew, Matthew Maguire, shortly before the
commencement of the foregoing harassment campaign.
Id. at ¶ 5. At this time, Cyr's Facebook,
Gmail, and Yahoo accounts were also hacked, such that Cyr
could no longer login to the accounts. Id. at ¶
7 5. A Facebook account under the name “Chad
Garcia” was reportedly used by Maguire. Id. at
¶ 14. A series of Facebook messages were sent from the
“Chad Garcia” account to another account
(hereinafter “John”), the user of which referred
to himself as “John.” Id. at ¶ 15.
John sent a photo to Chad Garcia, saying “that is her
on stage” and “she lived with me in
Lynnfield.” Id. To which Chad Garcia
responded, “Whyman???” Id. Garcia also,
on several occasions, requested to see a video that John
purportedly had, and John responded that he would send the
video after removing sound. Id. at ¶¶
6. When Whyman dated Cyr, he lived with her at 6 Glenn Drive,
Lynnfield, MA (“the Lynnfield address”).
Id. at ¶ 16.
7. Some of the nude photographs of Cyr sent as part of the
harassing messages were sent from the cellphone number
603-657-5726 (“the cellphone number”).
Id. at ¶ 17. The cellphone number was
registered with the name of “John Smith” at the
Lynnfield address where Whyman lived with Cyr and to an email
address from which harassing emails had been sent to Cyr.
Id. at ¶¶ 16-17.
8. At the time of Whalen's investigation, a search of the
RMV database revealed Jon Whyman now resided at 17 Kenney
Drive-the address Whalen applied for a warrant to search.
Id. at ¶ 18.
forgoing is sufficient to establish probable cause as it
might lead “a man of reasonable caution to believe that
evidence of a crime would be found” at 17 Kenney Drive,
which is precisely what the warrant sought. Id. at
1; Doc. No. 56-12. The affidavit plainly establishes probable
cause to believe Whyman lived at Lynnfield with Cyr and that
he had a previous relationship with her; it also plainly
establishes that, at the time of the search, he resided at 17
Kenney Drive. The only question is whether the affidavit
establishes probable cause to believe that evidence of a
crime would be found at 17 Kenney Drive, Whyman's home at
the time of the search. While close, under the totality of
the relevant circumstances put before the magistrate, the
forgoing does establish probable cause because the Facebook
exchange is sufficient to infer, for probable cause purposes,
that, at least at the relevant time, i.e. when the Facebook
users were discussing and exchanging photographs of Cyr, a
person of reasonable caution would believe Whyman was using
the “John” Facebook account and possessed the
type of information being used to harass Cyr and her family.
This combined with the 603 cellphone number suffices to make
the necessary connection between Whyman's home and the
crime alleged. Thus, the Court rejects Whyman's attack on
the facial validity of the evidence submitted to obtain the
alternative, Whyman argues that Whalen violated his Fourth
Amendment rights by omitting material information from the
search warrant affidavit, which, had it been included, would
have shown no probable cause existed for the warrant to
issue. Doc. No. 54 at 7. “[T]he intentional or reckless
omission of material exculpatory facts from information
presented to a magistrate may . . . amount to a Fourth
Amendment violation” if the officer acted “in
reckless disregard for the truth.” Burke v. Town of
Walpole, 405 F.3d 66, 81 (1st Cir. 2005).
“In the case of allegedly material omissions,
recklessness may be inferred where the omitted information
was critical to the probable cause determination.”
Id. To establish a Fourth Amendment violation, the
omitted facts must be material to the probable cause
determination. Id. at ...