                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           NOV 17 2004
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    DANIEL P. STARR,

                 Plaintiff-Appellant,

    v.                                                     No. 03-5170
                                                     (D.C. No. 01-CV-279-H)
    OFFICER DOWNS,                                         (N.D. Okla)

                 Defendant-Appellee,

    and

    STATE OF OKLAHOMA,

                 Defendant.


                              ORDER AND JUDGMENT           *




Before KELLY , HARTZ , and TYMKOVICH , Circuit Judges.



          After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Plaintiff, proceeding pro se, appeals the district court’s entry of summary

judgment on his 42 U.S.C. § 1983 civil-rights claims. Plaintiff asserted that

Officer Jeffery Thomas Downs of the Tulsa Police Department stopped and

detained him on account of his race and without sufficient cause, in violation of

his rights under the Fourth Amendment and the Equal Protection Clause. He also

asserted that his automobile was illegally searched.   1
                                                           We affirm summary

judgment in favor of Defendant Downs on Plaintiff’s Fourth Amendment claim

concerning the stop. We reverse and remand for further proceedings with regard

to Plaintiff’s equal-protection claim. We affirm the denial of Plaintiff’s motion to

amend to name the City of Tulsa and a second police officer, Ms. Sherrill, as

Defendants.




1
       Plaintiff also appears to have claimed that Officer Downs should be held
liable for attempting to question him without providing the warnings required by
Miranda v. Arizona , 384 U.S. 436 (1966). The only available remedy for a
Miranda violation, however, is the suppression of an incriminating statement.
“[V]iolations of Miranda rights do not subject police officers to liability under
§ 1983.” Marshall v. Columbia Lea Reg’l Hosp ., 345 F.3d 1157, 1165 n.6 (10th
Cir. 2003).

                                            -2-
                                 BACKGROUND

      About 1:30 a.m. on March 10, 2001, Plaintiff, an African-American

individual, entered a friend’s basement apartment in a building allegedly used for

drug trafficking. Plaintiff, however, was there simply to obtain a place to stay for

the night. He asked his friend if he could stay with him and, upon receiving

permission, decided to purchase groceries for the friend, himself, and a neighbor.

He emerged from the building approximately ten minutes after he entered. He

then got into his car and began a trip to a convenience store.

      Plaintiff’s activities had been under police surveillance. He soon noticed a

police car, driven by Officer Downs, following him, so he pulled over to the side

of the road and stopped before Officer Downs activated his police car lights or

siren. 2 Officer Downs walked up to Plaintiff’s car and asked whether Starr had

any drugs in the car. Downs then ordered Plaintiff out of the car. When Plaintiff

complied, Downs handcuffed him and placed him in the front seat of the police

vehicle.

      In the police car Officer Downs resumed his drug-related questioning.

Downs obtained Plaintiff’s name and radioed to dispatch for a record check.



2
       Officer Downs states that he observed Plaintiff commit a traffic violation
and that he stopped Plaintiff for this infraction. For purposes of this order and
judgment, we accept Plaintiff’s version of the facts: that is, he committed no
violation and he pulled over before Downs attempted to stop him.

                                         -3-
He eventually learned that Plaintiff had an outstanding warrant for first degree

rape, rape by instrumentation, and robbery. Downs informed Plaintiff of the

warrants and arrested him.

      Although the summary-judgment filings do not provide clear timing

information, at some point another police vehicle arrived on the scene. A female

officer, later identified as Officer Sherrill, got out of the vehicle and proceeded to

conduct a search of Plaintiff’s automobile. Carrying a flashlight, she entered

Plaintiff’s car, took an object out, and brought it to Officer Downs, who was in

his police vehicle with Plaintiff. Downs told her to return the object to the car

because he did not want it. She went back to Plaintiff’s car, found his wallet

under the armrest, and delivered it to Downs. The successful records check may

have relied on identification documents contained in the wallet.   3



      Plaintiff was later convicted of the rape charges entered in his computer

record. While incarcerated, he filed this lawsuit, naming Officer Downs and the

State of Oklahoma as Defendants. The State was dismissed from the action,



3
       During his deposition Plaintiff first stated that he was not sure whether the
second police officer arrived “before or after the warrant came back on the radio.”
R., Doc. 18, Ex. A at 37-38. He later corrected himself, stating that he had not
told Officer Downs his name and that his “name came up because [the second
officer] pulled [Plaintiff’s] wallet out and then brought the wallet to the car.
That’s how [Downs] got my ID because he never did question me about my
name.” Id. at 41; but see id. at 35-36 (stating that Downs asked Plaintiff his name
when Plaintiff was first put in the vehicle).

                                            -4-
apparently without objection from Plaintiff. After obtaining Plaintiff’s deposition

testimony, Officer Downs filed a motion for summary judgment, arguing

entitlement to qualified immunity. Plaintiff, upon learning the identity of Officer

Sherrill, sought to amend the complaint to add Sherrill and the City of Tulsa as

Defendants. The magistrate judge to whom the case was referred issued a report,

which recommended granting Downs’ summary-judgment motion and denying

Plaintiff’s motion to amend. The district court adopted and affirmed the

magistrate judge’s report and recommendation. This appeal followed.       4




                                      DISCUSSION

Summary Judgment on Fourth Amendment Claims

       We review a grant of summary judgment de novo, applying the same

standard that the district court should have applied.    See Hollingsworth v. Hill ,

110 F.3d 733, 737 (10th Cir. 1997). We view the evidence and any inferences

therefrom in the light most favorable to the non-moving party.      J.B. v. Washington

County , 127 F.3d 919, 923 (10th Cir. 1997). We will affirm a grant of summary

judgment when “‘the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no


4
       In this court Plaintiff has made several allegations concerning the invalidity
of his conviction of first-degree rape and rape by instrumentation. These
allegations are irrelevant to the instant case and we do not consider them.

                                             -5-
genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.’”        Id. (quoting Fed. R. Civ. P. 56(c)).

       When summary judgment is founded on the defense of qualified immunity,

the Plaintiff must first present facts to “show that . . . the official violated a

constitutional or statutory right.”      Olsen v. Layton Hills Mall , 312 F.3d 1304,

1312 (10th Cir. 2002). “If a favorable view of the facts alleged show[s] the

violation of [such a] right, the next, sequential step is to ask whether the right was

clearly established at the time of the defendant’s unlawful conduct.”        Holland

ex rel. Overdorff v. Harrington       , 268 F.3d 1179, 1186 (10th Cir. 2001) (internal

quotation marks omitted). If there is no genuine controversy regarding any

material fact that would defeat the Defendant’s claim of qualified immunity,

the Defendant is entitled to judgment as a matter of law.        See Anderson v. Liberty

Lobby, Inc. , 477 U.S. 242, 250 (1986).

       This appeal concerns Officer Downs’ treatment of Plaintiff during their

early morning interaction. There are three categories of police-citizen encounters,

each of which triggers a different standard. First, there are consensual

encounters, which are entirely outside the scope of the Fourth Amendment.            See

United States v. Torres-Guevara        , 147 F.3d 1261, 1264 (10th Cir. 1998). Second,

there are investigative detentions, commonly referred to as        Terry stops, “‘which

are Fourth Amendment seizures of limited scope and duration and must be


                                               -6-
supported by a reasonable suspicion of criminal activity.’”        Id. (quoting United

States v. Shareef , 100 F.3d 1491, 1500 (10th Cir. 1996)). The third category

consists of custodial arrests that are reasonable under the Fourth Amendment only

if supported by probable cause.      See id .

       “These categories are not static.”       Shareef , 100 F.3d at 1500. “A

consensual encounter may escalate into an investigative detention,” and “[a]n

investigative detention may escalate into a full-blown arrest.”       Id. The

“reviewing court must analyze each stage of the encounter, ensuring that the

requisite level of suspicion or cause is present at each stage.”     Id.

       Plaintiff’s encounter with Officer Downs covered the continuum. It began

with Plaintiff’s consent, without Fourth Amendment ramifications, in that he

voluntarily stopped his car upon seeing the police vehicle. It culminated in

Plaintiff’s arrest based on a valid warrant for an offense entirely unrelated to the

events that occurred at the time of the stop. (This arrest in itself cannot be the

basis for a lawsuit against Downs.      See Turney v. O’Toole , 898 F.2d 1470, 1472

(10th Cir. 1990) (officers executing a facially valid order are absolutely immune

from liability for damages);    Bingham v. City of Manhattan Beach         , 341 F.3d 939,

947-48, 951-53 (9th Cir. 2003) (plaintiff’s challenge to traffic stop survived

summary judgment on qualified-immunity grounds, but not claim based on a

subsequent arrest arising out of an outstanding warrant). Between the voluntary


                                                -7-
stop and the arrest, however, the encounter became an involuntary detention.

Plaintiff did not volunteer to be handcuffed.

       The issue becomes whether Officer Downs had reasonable suspicion of

criminal activity that would have justified an investigative detention and the

handcuffing of the Plaintiff before Plaintiff’s arrest on the outstanding warrant.

See United States v. Burton, 228 F.3d 524, 527-28 (4th Cir. 2000) (reasonable

suspicion must exist before protective measures occur). We conduct a “‘dual

inquiry, asking first ‘whether the officer’s action was justified at its inception,’

and second ‘whether it was reasonably related in scope to the circumstances

which justified the interference in the first place.’”    United States v. Holt , 264

F.3d 1215, 1228 (10th Cir. 2001) (quoting        United States v. Hunnicutt , 135 F.3d

1345, 1348 (10th Cir. 1998) (further internal quotation marks omitted)). If a

favorable view of the facts alleged by Plaintiff may show a Fourth Amendment

violation, we must turn to the next step of the qualified-immunity analysis and ask

whether this right was clearly established at the time of the stop.     See Holland ,

268 F.3d at 1186. “It has been settled law since the 1970’s that in order for a

police officer to initiate an investigatory stop of a motorist, there must at least

exist reasonable suspicion that the motorist is engaging in illegal activity.”

Bingham , 341 F.3d at 948 (citing     Delaware v. Prouse , 440 U.S. 648, 663 (1979)).




                                              -8-
      Accordingly, we inquire whether Officer Downs’ observations of Plaintiff

gave rise to a reasonable, articulable suspicion of criminal activity. We recognize

that “when used by trained law enforcement officers, objective facts, meaningless

to the untrained, can be combined with permissible deductions from such facts to

form a legitimate basis for suspicion of a particular person and for action on that

suspicion.” United States v. Cortez , 449 U.S. 411, 419 (1981). Nevertheless, an

officer’s suspicion that an individual is involved in criminal activity must be

“based on objective facts” which support that conclusion.      Brown v. Texas, 443

U.S. 47, 51-52 (1979).

      The undisputed facts in the record demonstrate that Downs saw Plaintiff

leave an apartment building at 1:30 in the morning after making a quick visit.

Downs also stated in an affidavit that “I know the apartment building . . . is used

for drug trafficking.” R., Doc. 30, Ex. A at 1, ¶ 5. Although the affidavit was

prepared for summary judgment purposes on October 16, 2002, the affidavit in

context is describing events that occurred on March 10, 2001. The affidavit

indicates that Downs has personal knowledge of the building’s history and that

fact would be admissible in evidence. Fed. R. Civ. P. 56(e);    Celotex Corp. v.

Catrett , 477 U.S. 317, 324 (1986). We may rely on that fact in our analysis

because Plaintiff has not set forth specific facts showing that there is a genuine

issue for trial concerning Officer Downs’ knowledge of drug trafficking at the


                                           -9-
building on the morning in question. Indeed, Officer Downs immediately began

questioning Plaintiff about drugs, suggesting that a drug investigation was in

progress. We also know that Plaintiff pulled over voluntarily when he suspected

he was being followed by Officer Downs. Our summary judgment standard

requires us to view the facts in the light most favorable to the non-moving party; it

does not require us to make unreasonable inferences in favor of the non-moving

party. See Byers v. City of Albuquerque , 150 F.3d 1271, 1274 (10th Cir. 1998).

Under these circumstances, we have no basis to disregard Officer Downs’

assertion that he observed Plaintiff in a known area of drug activity.   5



       Merely because Plaintiff was present near a building used for drug

trafficking is not enough for reasonable suspicion. Illinois v. Wardlow, 528 U.S.

119, 124 (2000). But the totality of the circumstances must be considered. See


5
  The dissent’s observation that Officer Downs may have gained his knowledge
well after Plaintiff’s arrest simply is not a reasonable inference. First, as noted
above, the sequence of events suggests a drug trafficking investigation. Second,
given the consensual nature of the initial encounter, Officer Downs needed only
reasonable suspicion that would have justified an investigative detention and the
handcuffing of the Plaintiff before Plaintiff’s arrest on the outstanding warrant.
In other words, when Plaintiff was handcuffed, the reasonable suspicion to justify
an investigative detention existed even if part of the basis for that reasonable
suspicion had been learned through surveillance of the Plaintiff or apartment
building in question. Third, the degree of precision the dissent would require in
the affidavit is contrary to the purpose of summary judgment–“to isolate and
dispose of factually unsupported claims.”     Celotex , 477 U.S. at 323-24. The
moving party need only point out that the nonmoving party cannot prove an
essential element of his case–there is no requirement that the moving party negate
the nonmovant’s claims. Id. at 323.

                                            -10-
United States v. Johnson, 364 F.3d 1185, 1194 (10th Cir. 2004). Plaintiff made a

quick visit at 1:30 a.m. (an unusual hour) to an apartment used for drug

trafficking and then, when he recognized he was being followed , he pulled over

(perhaps suggesting a confrontation). Given reasonable suspicion, an officer may

take reasonable precautions to protect his safety and maintain the status quo during

an investigative detention, without the encounter ripening into an arrest. See

United States v. Hensley, 469 U.S. 221, 235 (1985); United States v. Shareef, 100

F.3d 1491, 1502 (10th Cir. 1996); United States v. Perdue, 8 F.3d 1455, 1462

(10th Cir. 1993). An objectively reasonable officer would have done the same

thing as Officer Downs. There is no indication that Officer Downs prolonged the

investigative detention while running a records check. See United States v.

Sharpe, 470 U.S. 675, 683 (1985) (finding twenty minute Terry stop reasonable

under all the circumstances).

      Likewise, Plaintiff’s claim against Officer Downs concerning the search of

his automobile is subject to summary judgment. “‘[P]ersonal participation is an

essential allegation’” that must be proven before a Plaintiff can recover on a

§ 1983 claim. Mitchell v. Maynard , 80 F.3d 1433, 1441 (10th Cir. 1996)(quoting

Bennett v. Passic , 545 F.2d 1260, 1262-63 (10th Cir. 1976). From the record it is

plain that Downs did not participate in the search. The district court properly




                                         -11-
determined that Downs is entitled to qualified immunity and summary judgment in

his favor on Plaintiff’s unlawful-search claim.

Summary Judgment on Equal-Protection Claim

      After analyzing the Fourth Amendment issues, the district court entered

summary judgment on the entirety of Plaintiff’s case. But in addition to Fourth

Amendment claims, Plaintiff asserted a violation of the Equal Protection Clause,

which precludes selective enforcement of the law based on race or ethnicity.       See

Whren v. United States , 517 U.S. 806, 813 (1996). “[C]laims asserting selective

enforcement of a law on the basis of race are properly brought under the Equal

Protection Clause, and . . . the right to equal protection may be violated even if the

actions of the police are acceptable under the Fourth Amendment.”         Marshall ,

345 F.3d at 1166.

      Plaintiff’s equal-protection claim was not challenged in Officer Downs’

summary-judgment motion, and not addressed in the magistrate judge’s report and

recommendation adopted by the district court. Plaintiff had no notice that his

equal-protection claim was subject to summary judgment and therefore had no

opportunity to support his accusations of discriminatory enforcement. Hence we

must reverse and remand for further proceedings on the equal-protection claim.




                                           -12-
Motion to Amend

       Plaintiff moved to amend his complaint to add as defendants the City of

Tulsa and Officer Sherrill. The district court denied the motion, based on a

conclusion that the amended complaint would be subject to dismissal for failure to

state a claim. Although leave to amend is to be “freely given,” Fed. R. Civ. P.

15(a), and “pro se litigants are to be given reasonable opportunity to remedy the

defects in their pleadings,”   Hall , 935 F.2d at 1110 n.3, a “district court may deny

leave to amend where amendment would be futile.”         Jefferson County Sch. Dist.

No. R-1 v. Moody’s Investor’s Servs., Inc.     , 175 F.3d 848, 859 (10th Cir. 1999).

“We review the denial of a motion for leave to amend for abuse of discretion.”         Id.

       Officer Downs was investigating suspected drug trafficking at 1:30 a.m. on

city streets, a situation where the threat of guns in proximity is hardly illusory.

See United States v. Martinez, 938 F.2d 1078, 1083 (1991) (recognizing firearms

as “tools of the trade” frequently used to facilitate drug trafficking). That being

the case, once there was a basis for reasonable suspicion (as we have just held),

Officer Sherrill’s protective search of the vehicle would be proper, even assuming

that in the course of the search the officers learned of Plaintiff’s identity which

facilitated his arrest. See Thornton v. United States, 124 S. Ct. 2127, 2130 (2004);

Knowles v. Iowa, 525 U.S. 113, 118 (1998); Michigan v. Long, 463 U.S. 1032,

1049-1052 (1983). Officer Sherrill would be deemed to have the knowledge that


                                             -13-
Officer Downs possessed. United States v. Morgan, 936 F.2d 1561, 1569 (10th

Cir. 1991); Karr v. Smith, 774 F.2d 1029, 1032 (10th Cir. 1985). It would be odd

to hold that Plaintiff could be handcuffed for officer safety given reasonable

suspicion arising from the suspected drug transaction and his voluntary stop, but

conclude that the vehicle was off limits. Moreover, given that Plaintiff has no

Fourth Amendment right to refuse to identify himself in these circumstances given

reasonable suspicion, see Hibel v. Sixth Jud. District Ct., 124 S. Ct. 2451, 2458

(2004), Plaintiff cannot claim damages from an identification based upon the

documents in his wallet. Plainitff has not sought to raise a Fifth Amendment

claim. We conclude that the district court did not abuse its discretion in denying

the motion to amend as to Officer Sherrill or the City of Tulsa in relation to the

Fourth Amendment claims. On remand, the district court should determine

whether Plaintiff should be allowed to pursue a motion to amend to add the City of

Tulsa in connection with his equal protection claim.

Appointment of counsel

       Finally, Plaintiff argues that the district court improperly denied him

appointment of counsel. “There is no constitutional right to appointed counsel in

a civil case.”   Durre v. Dempsey , 869 F.2d 543, 547 (10th Cir. 1989). Under

28 U.S.C. § 1915(e)(1), a district court is permitted to appoint counsel after

considering “the merits of the litigant’s claims, the nature of the factual issues


                                         -14-
raised in the claims, the litigant’s ability to present his claims, and the complexity

of the legal issues raised by the claims.”      Rucks v. Boergermann , 57 F.3d 978, 979

(10th Cir. 1995) (internal quotation marks omitted). The district court considered

these factors and found appointment of counsel unnecessary. The district court did

not abuse its discretion in denying Plaintiff’s request for appointment of counsel.



                                      CONCLUSION

       We AFFIRM the district court’s grant of Officer Downs’ motion for

summary judgment on Plaintiff’s Fourth Amendment claims, but REVERSE and

REMAND for further proceedings on Plaintiff’s claim under the Equal Protection

Clause. We AFFIRM the district court’s denial of Plaintiff’s motion for leave to

amend with regard to Officer Sherrill and the City of Tulsa as to the Fourth

Amendment claims. We construe Plaintiff’s letter of May 7, 2004, with attached

exhibits as a motion to supplement the record, and the motion is DENIED. We

remind Plaintiff of his obligation to make partial payments under 28 U.S.C. §

1915(b)(1) until his appellate filing fee is paid in full.


                                             Entered for the Court



                                             Paul J. Kelly, Jr.
                                             Circuit Judge


                                              -15-
03-5170, Starr v. Downs

HARTZ , Circuit Judge, concurring in part and dissenting in part:


       I concur in the majority opinion’s disposition of the equal-protection claim,

but I respectfully dissent from the affirmance of dismissal of the Fourth

Amendment claim.

       In the majority opinion, reasonable suspicion for the stop of Plaintiff rests

on Officer Downs’s knowledge that the apartment building was used for drug

trafficking. The opinion notes that Plaintiff has not set forth any evidence to

question that knowledge. But in a summary-judgment proceeding the nonmovant

has no burden to produce evidence unless the movant’s evidence, when viewed in

the light most favorable to the nonmovant, establishes that there is no genuine

issue of material fact.   See Combs v. Pricewaterhousecoopers   , 382 F.3d 1196,

1199 (10th Cir. 2004). Here, the majority opinion has failed to view the evidence

in the light most favorable to Plaintiff.

       The only evidence that Officer Downs had reasonable grounds to believe the

apartment building was the scene of drug trafficking is one sentence in his

affidavit. That affidavit, executed 19 months after Plaintiff’s arrest, includes the

assertion, “I know the apartment building located approximately at 300 South

Cheyenne is used for drug trafficking.” R. Doc. 30 ¶ 5. The majority opinion

infers from this statement that Downs had this knowledge at the time of the arrest.

Perhaps so. That would be a reasonable inference. But it would also be
reasonable to infer that Downs gained his knowledge well after Plaintiff’s arrest,

as a result of the investigation that included Downs’s surveillance on the night in

question, not before the arrest. To construe the affidavit as does the majority

opinion is to invite abuse in future cases, when intentionally ambiguous affidavits

may be used to deceive the court.

       This is a frustrating case. I would be surprised if Officer Downs did not

have the requisite reasonable suspicion to stop and handcuff Plaintiff. Careful

work by his counsel would have made that clear on the record before the district

court on the summary-judgment motion. The affidavit, however, does not meet that

standard. And the Rules of Civil Procedure do not permit us to correct counsel’s

failure.

       My hope is that this case is just a “derelict on the waters of the law,”

Lambert v. California , 355 U.S. 225, 232 (1957) (Frankfurter, J., dissenting), and

does not presage fact finding by the court on summary-judgment motions.           See

generally Arthur R. Miller, The Pretrial Rush to Judgment: Are the “Litigation

Explosion,” “Liability Crisis,” and Efficiency Clichés Eroding our Day in Court

and Jury Trial Commitments?, 78 NYU L. Rev. 982 (2003).




                                          -2-
