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19-P-461                                              Appeals Court

              JOHANNA ORTIZ   vs.   JOHN MORRIS & others.1


                              No. 19-P-461.

           Suffolk.     February 5, 2020. - April 27, 2020.

            Present:   Hanlon, Wendlandt, & Englander, JJ.


State Police. Immunity from suit. Civil Rights, Immunity of
     public official. Federal Civil Rights Act. Practice,
     Civil, Civil rights, Summary judgment, Affidavit. Probable
     Cause.



     Civil action commenced in the Superior Court Department on
January 23, 2015.

     The case was heard by Robert L. Ullmann, J., on a motion
for summary judgment, and a motion for relief from judgment was
considered by him.


    Veronica J. White for the plaintiff.
    Daniel J. Moynihan for John Morris.


    WENDLANDT, J.      In this matter, which comes to us on a

motion for summary judgment on the basis of a State police

officer's qualified immunity, there can be no doubt that a

    1  Commonwealth of Massachusetts and State Police
Superintendent Colonel Timothy P. Alben (now retired).
                                                                   2


tragic mistake occurred.   The following facts are undisputed.

The plaintiff, Johanna Ortiz, was arrested for trafficking in

cocaine -- a crime that she did not commit.   Her only "crime,"

as laboratory results would show conclusively (albeit

belatedly), was carrying beauty products in her luggage as she

returned to the United States from the Dominican Republic.

Ortiz then spent thirty-seven days incarcerated before

prosecutors dropped the ill-founded allegations against her.

The nightmare no doubt has scarred her.2

     In 2015, Ortiz brought the present civil rights action in

the Superior Court against State Trooper John Morris, the

Commonwealth, and State Police Superintendent Colonel Timothy P.

Alben (now retired).   Following discovery, Morris moved for

summary judgment on the basis of qualified immunity.3    A Superior

Court judge allowed the motion.

     On appeal, Ortiz contends that summary judgment was

improperly granted because there existed a dispute of material

fact whether Morris knew, prior to arresting her, that field


     2 In her complaint, Ortiz explained that she suffered severe
emotional distress, depression, and reputational harm. She also
incurred financial costs in connection with, inter alia,
defending against false charges and medical expenses.

     3 The Commonwealth separately moved for summary judgment,
which was allowed on the basis of sovereign immunity. The
parties agreed to dismiss Ortiz's claim against Alben. Ortiz
appeals from only so much of the ensuing judgment as pertains to
Morris.
                                                                    3


tests performed on the beauty products by the United States

Customs and Border Protection (CBP) agents did not, in fact,

show a positive result for the presence of cocaine.    In support

of this allegation, Ortiz relied on her affidavit, in which she

stated that Morris heard a CBP agent relay that the field tests

were negative.    Because Ortiz's affidavit was not based on

personal knowledge, it was not the type of admissible evidence

required on summary judgment.   The only admissible evidence

showed that Morris had a reasonable basis to believe that he had

probable cause to arrest Ortiz; accordingly, we affirm the

judgment in favor of Morris on the basis of qualified immunity.

    Background.     We set forth the facts in the light most

favorable to Ortiz, the nonmoving party.    See Kennie v. Natural

Resource Dep't of Dennis, 451 Mass. 754, 759 (2008).

    In January 2013, Ortiz traveled to the Dominican Republic

and, while there, purchased shampoo and hair conditioner

products.   On her return to Logan International Airport

(airport), she proceeded through customs.    She was selected by

CBP agents for a secondary screening and detained in a room with

her luggage.   CBP agents then seized twenty-three bottles and

two canisters of beauty products from her luggage and subjected

them to a canine sniff and field tests.    Thereafter, Morris, who

was assigned to assist CBP at the airport, was summoned to the

customs processing area.
                                                                      4


     On his arrival, CBP agents informed Morris that a CBP drug-

sniffing canine alerted to the odor of drugs in Ortiz's beauty

products and that the products had nonfactory, clear plastic

seals around the opening.     He also personally observed the field

tests performed by the CBP agents and was told by the CBP agents

that the field tests were positive for the presence of cocaine

in the beauty products.   Morris learned that Ortiz was carrying

$660 in a white envelope.4    Morris subjected the currency to his

drug-sniffing canine; it, too, alerted to the presence of drugs.

Ortiz was questioned by officers, including by Morris.     She

denied any connection to or knowledge of any drugs or drug

operation; instead, she told officers that the beauty products

were simply shampoo and conditioner.

     Morris arrested Ortiz.    He filed an application for a

criminal complaint accompanied by a police report in the East

Boston Division of the Boston Municipal Court Department; it

alleged that Ortiz was trafficking in over ten kilograms of

liquid cocaine based on information he gathered from CBP agents

(the CBP canine alert, the field tests, and the manner in which

the items had been resealed and repackaged), Morris's experience

with the manner in which cocaine is trafficked, and his canine's

alert on the currency carried by Ortiz.     The complaint issued,


     4 Separately, she had approximately twenty-three dollars in
her wallet.
                                                                   5


and bail was set at $200,000.   Unable to post bail, Ortiz was

incarcerated.   Ortiz was released thirty-seven days later, when

prosecutors entered a nolle prosequi on the charges against her

because laboratory tests were unable to show any controlled

substances in the beauty products; they were, as Ortiz had

claimed from the onset, simply shampoo and conditioner.

    According to Ortiz, at some unidentified time during the

approximately nine hours she was detained in customs, she heard

a female CBP agent state that she could not understand why Ortiz

was being detained, given that the field tests were negative for

drugs.    In interrogatory answers and during her deposition,

Ortiz did not identify Morris as one of the officers to whom the

female CBP agent had made the statement.    Instead, Ortiz

explained that the statement was made outside her "line of

sight," in a room other than the room where Ortiz was being

detained.   She stated that she did not know which of her

interactions with law enforcement involved Morris, stating only

that Morris was the author of the police report leading to her

arrest.

    Responding to questions asking how Ortiz knew that Morris

was involved (and the extent of Morris's involvement) with her

detention and arrest, Ortiz testified at her deposition that,

following her release, she went to the airport.    While there,

Morris apologized to her, stating that he had made a mistake and
                                                                   6


that he believed that the field tests must have produced a false

positive reading because they had been reused.   Ortiz explained

that this postrelease encounter triggered a specific memory of

Morris being among the officers who questioned her while she was

in customs and that she believed he was "in charge" because she

"saw . . . people . . . asking him for advice or something."

Although it is undisputed that Morris arrested Ortiz, Ortiz

testified that she was unable to identify which officer effected

the arrest.   She also testified that she was unable to

differentiate between CBP agent and State trooper uniforms.

    This suit followed.   As against Morris, Ortiz alleged

violations of her civil rights, pursuant to G. L. c. 12, § 11I;

malicious prosecution; violations of her constitutional due

process and equal protection rights, pursuant to 42 U.S.C.

§ 1983; and negligence.   Following discovery, Morris moved for

summary judgment on the basis of qualified immunity.

    In opposition, Ortiz submitted an affidavit stating, for

the first time, that Morris was among the officers to whom the

female CBP agent stated that the field tests were negative.

Because the affidavit did not set forth any basis indicating

that Ortiz was competent to testify whether Morris heard the CBP

agent's statement, the judge allowed summary judgment in favor

of Morris on the basis of qualified immunity.    After judgment

entered for Morris, Ortiz filed a motion pursuant to Mass. R.
                                                                    7


Civ. P. 60, 365 Mass. 828 (1974).   The judge denied that motion,

and Ortiz filed a notice of appeal from the judgment and the

order denying her rule 60 motion.

    Discussion.    "The standard of review of a grant of summary

judgment is whether, viewing the evidence in the light most

favorable to the nonmoving party, all material facts have been

established and the moving party is entitled to a judgment as a

matter of law."   Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass.

117, 120 (1991), citing Mass. R. Civ. P. 56 (c), 365 Mass. 824

(1974).   Summary judgment "make[s] possible the prompt

disposition of controversies on their merits without a trial, if

in essence there is no real dispute as to the salient facts or

if only a question of law is involved" (citation omitted).

Kourouvacilis v. General Motors Corp., 410 Mass. 706, 715

(1991).

    Where the movant has supported the motion for summary

judgment by admissible evidence, a nonmoving party may not rest

on unsupported allegations; instead, the nonmoving party must

come forward with admissible evidence setting forth specific

facts showing that there is a genuine issue for trial.     See

Madsen v. Erwin, 395 Mass. 715, 721 (1985).   See also Mass. R.

Civ. P. 56 (e).   Relevant to the present case, where an

affidavit "does not appear to have been made of the affiant's

own personal knowledge, nor does it appear affirmatively that
                                                                    8


the affiant would have been competent to testify to any of the

critical matters at trial," it must be disregarded in passing on

the motion for summary judgment.   Stanton Indus., Inc. v.

Columbus Mills, Inc., 4 Mass. App. Ct. 793, 794 (1976).

Additionally, "[a] party cannot create a disputed issue of fact

[simply] by . . . contradicting by affidavit statements

previously made under oath at a deposition."   Hanover Ins. Co.

v. Leeds, 42 Mass. App. Ct. 54, 58 (1997), quoting O'Brien v.

Analog Devices, Inc., 34 Mass. App. Ct. 905, 906 (1993).     Our

review of the judge's allowance of Morris's motion is de novo.

Regis College v. Weston, 462 Mass. 280, 284 (2012).

    Public officials have the same protection for violations of

the Massachusetts Civil Rights Act, G. L. c. 12, § 11I, as they

have under Federal law for violations of 42 U.S.C. § 1983.    See

Duarte v. Healy, 405 Mass. 43, 46 (1989).   Under § 1983,

officers performing discretionary functions "generally are

shielded from liability for civil damages insofar as their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known."   Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

Whether an officer is immune "turns on the objective legal

reasonableness of the action assessed in light of the legal

rules that were clearly established at the time [the action] was

taken" (quotations and citation omitted).   Anderson v.
                                                                   9


Creighton, 483 U.S. 635, 639 (1987).    "'Clearly established'

means that, at the time of the officer's conduct, the law was

'sufficiently clear' that every 'reasonable official would

understand that what he is doing' is unlawful."   District of

Columbia v. Wesby, 138 S. Ct. 577, 589 (2018), quoting Ashcroft

v. al–Kidd, 563 U.S. 731, 741 (2011).

     In the context of a warrantless arrest, a reasonable belief

of probable cause held by an arresting officer, even if

ultimately mistaken, entitles the officer to qualified immunity.5

See Hunter v. Bryant, 502 U.S. 224, 228-229 (1991).   Because

probable cause, by its nature, "turn[s] on the assessment of

probabilities in particular factual contexts and cannot be

reduced to a neat set of legal rules" (quotation omitted),

qualified immunity will protect an officer in the absence of an


     5 The existence of probable cause also bars Ortiz's claims
for malicious prosecution and negligence. See Gutierrez v.
Massachusetts Bay Transp. Auth., 437 Mass. 396, 405-406 (2002)
("Generally, where there is probable cause to arrest, the
plaintiff has failed to meet the probable cause element of
malicious prosecution"); Cachopa v. Stoughton, 72 Mass. App. Ct.
657, 665 (2008), quoting Gildea v. Ellershaw, 363 Mass. 800, 820
(1973) ("Public officials are . . . entitled to qualified
immunity in the sense that they are not liable for negligence or
other error in the making of a discretionary decision within the
scope of their authority, so long as they act 'in good faith,
without malice and without corruption'"). Ortiz does not appeal
from the dismissal of her equal protection claim; in any event,
the record is devoid of any evidence of discriminatory animus.
See Commonwealth v. Lora, 451 Mass. 425, 437 (2008) (defendant
has initial burden to present evidence raising at least
reasonable inference of impermissible discrimination).
                                                                   10


identified body of relevant case law that clearly establishes

the answer with respect to probable cause.    Wesby, 138 S. Ct. at

590.

       Here, the undisputed record shows that Morris was told by

CBP agents that Ortiz had twenty-three containers and two

canisters in her luggage, the CBP canine had alerted to the

presence of narcotics in these items,6 and field tests were

positive, erroneously as it turned out, for the presence of

cocaine in these items.    See Bilida v. McCleod, 211 F.3d 166,

174-175 (1st Cir. 2000) (plausible information from fellow

officers "support[ed] qualified immunity where, viewed

objectively in light of the surrounding circumstances, they

could lead a reasonable officer to conclude that the necessary

legal justification for his actions exists [e.g. a warrant,



       Ortiz contends that, in the absence of information
       6

regarding the CBP canine's reliability, Morris's reliance on
this information was unreasonable. See Florida v. Harris, 568
U.S. 237, 248 (2013) ("If the State has produced proof from
controlled settings that a dog performs reliably in detecting
drugs, and the defendant has not contested that showing, then
the court should find probable cause"). Of course, "law
enforcement units have their own strong incentive to use
effective training and certification programs, because only
accurate drug-detection dogs enable officers to locate
contraband without incurring unnecessary risks or wasting
limited time and resources." Id. at 247. We need not reach the
question whether, in view of this incentive, Morris could
reasonably believe that the CBP canine was reliable. Here, the
remaining information relied on by Morris supports his
reasonable belief that he had probable cause to arrest Ortiz, as
set forth supra.
                                                                 11


probable cause, exigent circumstances]").   Morris also had been

told that the containers lacked a factory seal and instead had a

clear plastic covering;7 and, he knew from his experience and the

experience of other agents and officers that cocaine was often

packaged in this manner.   Morris knew that Ortiz had an envelope

containing $660, separate from her wallet, which (based on his

experience and training) he believed to be consistent with the

value of a drug courier's fee for transporting the volume of

cocaine suspected to be held within the containers.   Finally,

Morris's own canine alerted to the presence of drugs on the

currency.8   Together, this information provided probable cause to

believe that Ortiz had committed the crime of trafficking in

cocaine.




     7 Ortiz maintains that reliance on this information was
unreasonable because one of the containers (apparently
photographed by Ortiz's counsel following Ortiz's release)
showed part of a factory seal still affixed to it. However,
Ortiz does not set forth any evidence that the remaining
containers and canisters did not present as reported to Morris
by the CBP agents or, more importantly, that Morris knew (or
reasonably should have known) that the reported state of the
seals was false.

     8 Ortiz maintains that Morris should have known that his
canine's alert was "meaningless" because a large percentage of
all currency has come into contact with drugs. See United
States v. United States Currency, $30,060, 39 F.3d 1039, 1042
(9th Cir. 1994) ("greater than seventy-five percent of all
circulated currency in Los Angeles is contaminated with the
residue of cocaine or other controlled substances"). As set
forth supra, here, there was more.
                                                                    12


     Ortiz contends, however, that other information should have

caused Morris to doubt the veracity of the information provided

to him by the CBP agents.    Specifically, her affidavit avers

that Morris heard a CBP agent report that the field tests were

negative.    However, in an interrogatory answer, Ortiz stated

that the statement was made outside her line of sight (because

she was detained in a separate room).     At her deposition, Ortiz

testified that she was unable to distinguish between CBP and

State trooper uniforms.     She also explained that she recalled

Morris only because he apologized to her at the airport

following her release, triggering a memory that Morris was among

the officers who questioned her.    She testified that she was so

distraught the day of her interrogation and arrest that she

could not recall any details, including who had performed the

field tests, who had conducted the canine sniffs, or even who

arrested her.   Together with her interrogatory answer, this

testimony showed Ortiz lacked personal knowledge whether Morris

heard the statement and, indeed, whether the statement was made

by a CBP agent at all.    Because it is not based on personal

knowledge, the statement in the affidavit is not admissible

evidence.9   See Stanton Indus., Inc. 4 Mass. App. Ct. at 794.


     9 For this reason, the present matter is distinguishable
from Manuel v. Joliet, 137 S. Ct. 911 (2017) (§ 1983 claim based
on wrongful arrest and pretrial detention where, despite
knowledge of negative field tests, officers arrested plaintiff
                                                                   13


See also Mass. R. Civ. P. 56 (e).   Furthermore, her claim that

she had personal knowledge that Morris heard the agent's

statement conflicts with her deposition testimony and prior

discovery response.   See Hanover Ins. Co., 42 Mass. App. Ct. at

58.   Accordingly, summary judgment was proper.10

                                    Judgment affirmed.

                                    Order denying rule 60 motion
                                     affirmed.




and then falsely reported positive field and laboratory tests in
support of criminal complaint).

       Ortiz also maintains that Morris should have known that
      10

he lacked probable cause because he reasonably should have known
that the shampoo and conditioner did not contain marketable
cocaine. Ortiz presented expert testimony that packaging
cocaine together with products like shampoo and conditioner
renders it unmarketable and thus a trained officer would have
known that the substance was unlikely to be cocaine. At best,
this testimony suggests that Morris could have been more
skeptical about the field test results. It does not, however,
require Morris to have ignored the reported drug test results,
his own observations and experiences, the consistency between
the cash Ortiz carried and the volume of cocaine suspected to be
contained in her luggage, and Morris's canine's alert.
Certainly, Ortiz cites to no clearly established law requiring
an officer to ignore evidence of cocaine because the mixture
rendered it less than marketable.
