United States District Court, D. Vermont
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
CHRISTINA REISS, Chief District Judge.
Plaintiff Fata Sakoc brings this action under 42 U.S.C. § 1983 against Defendant Trooper Timothy Carlson ("Trooper Carlson") of the Vermont State Police ("VSP") for violating her Fourth Amendment right to be free from unreasonable seizures when he allegedly unlawfully arrested her for operating a motor vehicle while under the influence of a drug. Since filing her Complaint in this matter, Ms. Sakoc has confined her claim to her allegedly unlawful arrest and does not assert post-arrest claims.
Pending before the court is Trooper Carlson's motion for summary judgment (Doc. 95), in which he argues that he had probable cause to arrest Ms. Sakoc. In the alternative, Trooper Carlson argues that he is entitled to judgment as a matter of law in his favor because he had arguable probable cause and is therefore protected by qualified immunity. Ms. Sakoc counters that there are disputed material facts which preclude summary judgment and which must be resolved before probable cause or arguable probable cause can be determined.
On February 2, 2015, the court held oral argument on the pending motion. After the parties completed post-hearing briefing on February 17, 2015, the court took the motion under advisement.
Ms. Sakoc is represented by David J. Williams, Esq. and Brooks G. McArthur, Esq. Trooper Carlson is represented by Assistant Vermont Attorney General Kate T. Gallagher.
I. The Undisputed Facts.
A. The Traffic Stop and Its Aftermath.
On March 5, 2010, at approximately 11:15 p.m., Trooper Carlson stopped Ms. Sakoc in Essex Junction, Vermont for operating a motor vehicle with one headlight out. Trooper Carlson initiated the traffic stop by turning his cruiser around, pulling behind Ms. Sakoc's vehicle, and activating his cruiser's blue lights. After Ms. Sakoc pulled over, Trooper Carlson approached her vehicle and asked her for her license and registration. Ms. Sakoc spoke with an accent but appeared to speak and understand English well. At the time of the stop, Ms. Sakoc was wearing a blue nursing uniform and was driving home after completing her shift at The Converse Home, a Level III residential care facility located in Burlington, Vermont. Trooper Carlson asked Ms. Sakoc to exit her vehicle to perform standardized field sobriety tests ("SFSTs"). At approximately this point, Officer Stephen Dunning, of the Essex Police Department, arrived on the scene to provide assistance.
This was Trooper Carlson's first investigation of a motorist for driving under the influence ("DUI"), and he was in the process of completing his field training under the supervision of Sergeant Michael Kamerling of the VSP. Both Trooper Carlson and Officer Dunning attended and graduated from the Vermont Police Academy in 2009 and were trained to administer and score SFSTs. Trooper Carlson attained a final class average of 97.44% in his basic training and 99% in his post-basic DUI Enforcement Training.
Trooper Carlson first asked Ms. Sakoc to perform the Horizontal Gaze Nystagmus ("HGN"). According to the Vermont Criminal Justice Training Council, HGN "refers to an involuntary jerking occurring as the eyes gaze toward the side. In addition to being involuntary the person experiencing the nystagmus is unaware that the jerking is happening." (Doc. 97-7 at 95.) "In administering the HGN test, the officer has the suspect follow the motion of a small stimulus with the eyes only. The stimulus may be the tip of a pen or penlight, an eraser on a pencil or your finger tip, whichever contrasts with the background." Id. There are six potential clues, three for each eye, that may be observed during a suspect's performance on the HGN, which include lack of smooth pursuit, jerkiness at maximum deviation, and jerkiness that begins "prior to a 45-degree angle[.]" Id. at 96. An officer must observe at least four clues to reach a decision point on the HGN.
When Ms. Sakoc performed the HGN, she was facing oncoming traffic and the blue strobe lights of Trooper Carlson's cruiser. Trooper Carlson administered the HGN by moving his finger from side to side past Ms. Sakoc's face and observing her eyes as they followed his finger. In a DUI affidavit which is unsigned,  Trooper Carlson recorded that he observed a lack of smooth pursuit and jerkiness in both of Ms. Sakoc's eyes, which he equated to a score of four clues on the HGN. (Doc. 96-1 at 4.)
Trooper Carlson next directed Ms. Sakoc to perform the Walk-and-Turn exercise (the "WAT"). The WAT "is a divided attention test consisting of two stages: Instructions Stage; and, Walking Stage." (Doc. 97-7 at 98.) "In the Instructions Stage, the subject must stand with their feet in heel-to-toe position, keep their arms at their sides, and listen to the instructions." Id. (emphasis omitted). "In the Walking Stage[, ] the subject takes nine heel-to-toe steps, turn[s] in a prescribed manner, and take[s] nine heel-to-toe steps back, while counting the steps out loud, while watching their feet." Id. (emphasis omitted). "The Walking Stage divides the subject's attention among a balancing task (walking heel-to-toe and turning); a small muscle control task (counting out loud); and a short-term memory task (recalling the number of steps and the turning instructions)." Id. There are eight potential clues that may be observed during a subject's performance: "can't balance during instructions; starts too soon; stops while walking; doesn't touch heel-to-toe; steps off line; uses arms to balance; loses balance on turn or turns incorrectly; and, takes the wrong number of steps." Id. An officer must observe at least two clues on the WAT to reach a decision point.
During her performance of the WAT, Ms. Sakoc initially began walking toward the cruiser until Trooper Carlson directed her to stop. Trooper Carlson then demonstrated the WAT by taking steps touching his heels to his toes and then turning by taking multiple small steps. Ms. Sakoc resumed the WAT as Trooper Carlson continued his demonstration. Based on the video, it appears that Ms. Sakoc took the required nine steps and it is not clear whether she lost her balance. The video does not clearly depict whether she touched her heels to her toes. In his DUI affidavit, Trooper Carlson recorded that Ms. Sakoc exhibited four clues based on his observations: she lost her balance while turning; started before instructed; failed to touch her heels to her toes; and took an incorrect number of steps.
Trooper Carlson then directed Ms. Sakoc to perform the One-Leg Stand (the "OLS").
The One-Leg Stand test... is a divided attention test consisting of two stages:
Instructions Stage; and,
Balance and Counting Stage.
In the Instruction Stage, the subject must stand with feet together, keep arms at sides, and listen to instructions. This divides the subject's attention between a balancing task (maintaining a stance) and an information processing task (listening to and remembering instructions.)
In the Balance and Counting Stage, the subject must raise one leg, either leg, with the foot approximately six inches off the ground, keeping raised foot parallel to the ground. While looking at the elevated foot, count out loud in the following manner: "one thousand and one", "one thousand and two", "one thousand and three" until told to stop. This divides the subject's attention between balancing (standing on one foot) and small muscle control (counting out loud).
Id. at 99 (emphasis omitted). There are four potential clues that may be observed during the OLS, which include: "sways while balancing; uses arms to balance; hops; puts foot down." Id. An officer must observe at least two clues on the OLS to reach a decision point.
In demonstrating the OLS, Trooper Carlson instructed Ms. Sakoc to "put your feet together, kind of like this, with your hands by your side[, ]" (Doc. 21 at 2:9-2:10), and "point your toe about six inches off the ground, and it's look your toe, and you're going to count out loud to 30[.]" Id. at 2:13-2:16. Trooper Carlson twice told Ms. Sakoc "[y]ou may begin." Id. at 2:25. During the OLS, the video reveals that Ms. Sakoc momentarily swayed slightly and raised her hands from her side. Trooper Carlson told Ms. Sakoc to put her foot down after she counted to sixteen, instead of the instructed thirty. In his DUI affidavit, Trooper Carlson recorded that Ms. Sakoc swayed while balancing and used her arms to balance by raising her hand more than six inches, resulting in two clues.
Officer Dunning watched Trooper Carlson administer some of the SFSTs to Ms. Sakoc. He did not observe the results of the HGN and, at approximately 23:28:20, Officer Dunning turned his back on Ms. Sakoc during the WAT. At approximately 23:29:27, Officer Dunning briefly glanced away from Ms. Sakoc during the OLS. At approximately 23:33:26, Officer Dunning advised Trooper Carlson, "from where I was standing she failed." (Ex. 97-8 at 23:33:25.)
After the completion of SFSTs, Trooper Carlson concluded that Ms. Sakoc was moderately impaired and asked her to take a preliminary breath test. Trooper Carlson told Ms. Sakoc: "If you pass it, you'll be able to go home." (Doc. 21 at 5:8-5:9.) Officer Dunning similarly stated, "if you haven't had any alcohol this evening, what you do is you blow into this for us, you blow [zeroes], and you'll be all set." Id. at 3:16-3:19. Ms. Sakoc contested the necessity of the preliminary breath test, but she ultimately submitted to the test. Officer Dunning administered the preliminary breath test, which indicated that Ms. Sakoc had no alcohol in her system.
Trooper Carlson ordered Ms. Sakoc to return to her vehicle, and Trooper Carlson and Officer Dunning discussed what to do after Ms. Sakoc's purported poor performance on SFSTs and her negative result on the preliminary breath test. Trooper Carlson decided to request that his dispatcher locate a drug recognition expert (a "DRE") to evaluate whether Ms. Sakoc might be impaired due to drugs. After making this contact with dispatch, Sergeant Michael Kamerling, Trooper Carlson's supervisor, responded and advised that Officer Matthew Plunkett, a DRE, would respond. Sergeant Kamerling then asked Trooper Carlson if Ms. Sakoc had "any bad operation?" Id. at 10:23. Trooper Carlson responded: "No, a headlight out." Id. at ...