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Patel v. Hall

United States Court of Appeals, Tenth Circuit

March 1, 2017

CHETAN PATEL, Plaintiff - Appellant,
ROGER HALL, in his official and individual capacities; STACY BUBLA, in her individual capacity; ROBERT WILSON, in his individual capacity; SHANNON ARMSTRONG, in his individual capacity; BRENT GODFREY, in his individual capacity; JULIE FABER, in her individual capacity; STEVE SHAY, in his individual capacity; JOHN FRENTHEWAY, in his individual capacity, Defendants-Appellees.


          Philip E. Abromats (Letitia C. Abromats with him on the briefs) of Philip E. Abromats, P.C., Greybull, Wyoming, for Plaintiff-Appellant.

          Richard Rideout of the Law Offices of Richard Rideout, P.C., Cheyenne, Wyoming, for Defendant-Appellee Roger Hall in his official capacity.

          Jackson M. Engels, Senior Assistant Attorney General, Cheyenne, Wyoming, and Larry B. Jones of Burg, Simpson, Eldredge, Hersh & Jardine, P.C., Cody, Wyoming (Peter K. Michael, Wyoming Attorney General, and John D. Rossetti, Deputy Attorney General, Cheyenne, Wyoming, with them on the briefs), on behalf of Defendants-Appellees Roger Hall, Stacy Bubla, Robert Willson, Steve Shay, and John Frentheway in their individual capacities.

          Before BRISCOE, McKAY, and MATHESON, Circuit Judges.

          McKAY, Circuit Judge.

         Plaintiff Chetan Patel appeals from the district court's grant of summary judgment in favor of Defendants in this 42 U.S.C. § 1983 federal civil rights case, in which Plaintiff raised numerous claims against various police officers and other governmental officials involved in his arrest on charges of felony VIN fraud and the related search and seizure of his property in Basin, Wyoming.


         On the evening of April 20, 2011, the Basin Police Department in Big Horn County, Wyoming, received a phone call from Annette Austin asking for a police officer to come to her husband's auto-repair business, which was located in a building her husband, Wade Austin, rented from and shared with Plaintiff. Officer Stacy Bubla responded to the call, later joined by Officer Roger Hall. The officers spoke with Wade and Annette Austin, as well as their son Kasey, who worked in the shop with his father.[1]

         Mr. Austin told the officers that he had noticed earlier in the day that the Vehicle Identification Number (VIN) plate was missing from the cab of a truck he was repairing for Plaintiff and that, after he asked Plaintiff about the missing VIN plate and then left the shop for several hours, he discovered on his return that the cab now contained a VIN plate taken from a different cab. Mr. Austin also told the officers that a second truck belonging to Plaintiff was missing a VIN plate and that Plaintiff had made comments about how easy it is to change the VIN on a vehicle. He further reported that Plaintiff had told him, when asked about the missing VIN plate, "that he talks too much and that it will get him into trouble, " and "that when he talked to people to only tell them very little or to lie to them." (Appellant's App. at 230.)

         After speaking with the Austins, the officers contacted John Frentheway, an attorney at the County Attorney's office. They asked Mr. Frentheway whether they could permit the Austins to remove their belongings from the premises and whether they should seal the building pending a search warrant. Mr. Frentheway answered yes to both inquiries. The officers photographed the trucks with missing or replaced VIN plates, which Mr. Austin had pointed out to them, and tagged all of the vehicles in the shop. The officers then locked and sealed the shop with police tape before leaving.

         The next morning, all three Austins submitted written statements to the police and swore to their truthfulness in front of a notary. All three statements included much of the same information that the officers recorded in their police reports. They also included the additional facts that Mr. Austin worked on vehicles belonging to Plaintiff in exchange for rent and that Plaintiff had asked Ms. Austin to get a bond (presumably a notary bond) so she could sell his vehicles. Mr. Austin and his son, Kasey, further reported that Plaintiff had started telling them two weeks previously that they needed to move the vehicles off the premises to the town of Worland "because they were starting to draw the state[']s attention" (id. at 224) and that they needed to stop working on customers' vehicles until they had first repaired all of Plaintiff's cars.

         On the same morning the Austins submitted their written witness statements to the police, Officer Hall drafted an affidavit for a search warrant, in which he summarized the Austins' witness statements and his own observations from his visit to the shop on the previous night. However, all of the judges in Big Horn County were attending meetings in different parts of the state on that date, so Officer Hall was unable to immediately obtain a search warrant. Concerned that Plaintiff might remove evidence from the premises, he again contacted Mr. Frentheway and asked him whether there was probable cause to arrest Plaintiff. Based on the Austins' sworn statements, Mr. Frentheway concluded there was sufficient probable cause to justify a warrantless arrest for felony VIN fraud. Officer Hall accordingly arrested Plaintiff on April 21.

         The following day, a judge of the county court issued an arrest warrant for Plaintiff and a search warrant for the Basin property. Various law enforcement officers began searching the property on April 22. During their search of the property that morning, they discovered a razor blade, a syringe, and white powder on a table in the shop.[2] After discovering these items, the officers left the building and obtained a new warrant to search for drugs and drug paraphernalia as well as "VIN plates from the vehicles inside these buildings and on the property that have been removed and replaced with ones from other vehicles." (Id. at 632.) The officers then resumed the search and continued searching until April 30, at which time they unsealed the building and returned the keys to Plaintiff. In addition to the suspected drugs and paraphernalia, they seized two loose VIN plates, the truck with the switched VIN plates, the driver's door of the truck from which the switched VIN plate was taken, the truck with the missing VIN plates, a third truck, [3] and an empty insurance envelope which they found laying on the shop floor near the first truck on which was written a claim number and an insurance agent's contact information. They also photographed several documents-primarily vehicle titles and bills of sale-on which VIN numbers were written, and they inventoried many of the contents of the building in order to follow up on certain confidential informants' tips about allegedly stolen merchandise.

         Plaintiff was released from jail on April 22. In June, the county circuit court held a preliminary hearing and bound Plaintiff over to the state district court on charges of felony VIN fraud. These charges were dismissed without prejudice on October 4, 2011, and have not been re-filed against Plaintiff. All of the seized items were returned to Plaintiff in December 2011.

         In April 2014, Plaintiff filed this § 1983 complaint, in which he raised fifteen federal claims and nine state law claims against various Defendants. Defendants filed separate motions for summary judgment, in which they mainly argued they were entitled to qualified immunity on the claims against them.

         In his response to Defendants' motions for summary judgment, Plaintiff relied in part on an affidavit purportedly signed by Wade Austin in 2014. To support the admission of this affidavit into evidence, Plaintiff's two attorneys each submitted affidavits stating they had met with Plaintiff and Wade Austin at a local restaurant in April 2014. At that meeting, Mr. Austin allegedly made several statements that differed from his original sworn police witness statement. For instance, he allegedly stated that it was his wife Annette, not himself, who invited the officers into the building, that the officers did not ask him for permission to enter or search his business, and that he never believed that any aspect of Plaintiff's business, including his actions regarding the VIN plates, was illegal. Plaintiff's counsel drafted an affidavit from her notes for Mr. Austin to sign and made corrections to the affidavit at his direction. The affidavit was then signed, notarized, and returned to counsel. In his 2015 deposition, Mr. Austin agreed he had met with Plaintiff's counsel at the restaurant and signed an affidavit typed by Plaintiff's counsel. However, he stated that the affidavit produced by Plaintiff's counsel in this litigation was not the affidavit he had read and signed before. "This is - somebody stuck my signature page on something that I didn't write. . . . [Plaintiff's counsel] prepared it and brought it for me to proofread, but this is not the document that I proofread and had notarized." (Id. at 1078.) In their affidavits, Plaintiff's counsel averred that the affidavit they submitted in this litigation was the same affidavit Wade Austin signed in 2014.

         In granting summary judgment in favor of Defendants, the court refused to consider the purported Wade Austin affidavit produced by Plaintiff's counsel. The court also disregarded Plaintiff's attorneys' affidavits based on its conclusion that relying on the attorneys' affidavits would make them material witnesses to this case in violation of Rule 3.7 of the Wyoming Rules of Professional Conduct. The court then concluded that the purported Wade Austin affidavit should be disregarded both because it was ...

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