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Avery v. Boyd

United States District Court, S.D. Mississippi, Northern Division

May 23, 2014

WILLIAM ANTONIO AVERY, Plaintiff,
v.
DANIEL BOYD, ET AL., Defendants.

OPINION AND ORDER

F. KEITH BALL, Magistrate Judge.

This cause was tried before the Court on October 30, 2013. Having considered the entire record in this matter, the Court concludes that Defendants are entitled to judgment in their favor and that this case should be dismissed with prejudice.[1]

THE CLAIM AND THE TESTIMONY

1. Plaintiff's Case

Plaintiff William Antonio Avery claims that his Fourth Amendment right to freedom from unreasonable search and seizure was violated when Defendant Daniel Boyd, a narcotics agent with the East Mississippi Drug Task Force, pulled him over on February 4, 2010, in Lauderdale County, Mississippi. Avery also contends that his Eighth Amendment right to be free of cruel and unusual punishment was violated when he was allegedly forced to stand in the rain during the traffic stop.

Avery testified at trial, as did his wife and daughter, who was 16 years of age at the time of the stop. All three stated that on the afternoon of February 4, 2010, they were on their way to pick up Avery's grandson from daycare when Agent Boyd passed them in an SUV, turned around, and stopped Avery's vehicle. Avery testified that Agent Boyd, whom Avery knew to be a narcotics officer, told him that he stopped him because Avery was driving in the middle of the road. All three witnesses testified that Avery did not drive in the middle of the road on February 4, 2010. Another vehicle, also a narcotics vehicle, arrived at the scene at some point.

Exactly what transpired next was not described consistently by Avery and his two witnesses, but it is undisputed that it was raining and that all three occupants exited the vehicle. It is also undisputed that Agent Boyd asked to search the vehicle but that Avery refused to consent. According to Avery, Agent Boyd told him that since he would not consent to a search, he would have to stand in the rain until a canine unit arrived. Further, Avery testified that Agent Boyd made all of them (Avery, his wife, and his daughter) get out of the vehicle and stand in the rain during the entire duration of the stop and that Boyd never told them to get back in their vehicle. Avery estimated that the stop lasted approximately 30 minutes.

Avery's wife testified that the stop occurred about 4:15 or 4:30. She stated that after Agent Boyd asked to search their vehicle, he directed everyone to step out of the vehicle and told them that they would all have to stand outside until a canine unit arrived. She further testified that after they got out of the vehicle, her daughter called a relative and that an officer threatened to tase her daughter if she did not get off the phone. In her testimony, Avery's wife initially denied that Agent Boyd ever told her and her daughter to get back in their vehicle. However, she later admitted that Boyd told them to do so but claimed that this occurred at the end of the stop. Avery's wife testified that the stop lasted more than an hour and that it continued until after 5:30 and closer to 6:00, a period of 1 hour to 1 hour, 45 minutes.

Avery's daughter testified that after pulling them over, Agent Boyd "asked for my dad to step out. So we all stepped out the vehicle." After this testimony, Avery, who was proceeding pro se, asked his daughter whether Agent Boyd asked all of them to get out of the vehicle; she replied that he had. After they got out of the vehicle, the daughter called her great grandmother, who lived just down the road, and asked her to come to the scene. She testified that an officer threatened to tase her if she did not get off the phone. Although her parents denied that Agent Boyd told them to get back in their vehicle, Avery's daughter admitted that Agent Boyd told her to do so, but she testified that, as long as her dad was standing outside the vehicle, she was going to stand outside the vehicle also. She admitted that she refused to comply with Agent Boyd's instructions. She further testified that because she was crying and screaming while she was on the phone, her great grandmother was worried and was coming to the scene. Before her great grandmother could get there, the officers released the family.

At trial, it was undisputed that a canine unit never arrived and that Agent Boyd never searched Avery's vehicle. Rather, he simply gave Avery a warning and allowed Avery to leave without issuing a citation.

Avery introduced into evidence a transcript of an audio recording of part of the stop. The portion of the transcript on which Avery focused as supporting his claim reads as follows:

BY AN UNIDENTIFIED SPEAKER: What'd you tell him you pulled him over for?
BY MR. BOYD: Out in the middle of the road. What you - he was.
BY AN UNIDENTIFIED SPEAKER: He was not in the middle of the road. Man, ...

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