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Whyman v. Whalen

United States District Court, D. Massachusetts

June 22, 2018

JON WHYMAN, Plaintiff,
SCOTT WHALEN, in his Personal and Official Capacities, Defendant.


          Leo T. Sorokin United States District Judge.

         On 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.[1] Id. Whalen moves for summary judgment, Doc. No. 44; Whyman opposes. Doc. No. 52.


         Summary 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 omitted).

         Once a 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).


         Count I 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.

         “[W]hether [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)).[2]

         Whalen's 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 ¶¶ 14-15.
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.

         The 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 warrant.

         In 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 ...

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