- The 4th US Circuit Court of Appeals split 2-1 in allowing a Moore County man to proceed with his malicious prosecution lawsuit against three Southern Pines police officers.
- The court's majority determined that the officers lacked probable cause to arrest Lee Marvin Harris Sr. on cocaine possession charges for drugs found in an unused car in his yard.
- A dissenting judge determined that the officers had probable cause for the arrest, which would defeat the lawsuit for malicious prosecution and fabrication of evidence.
A split panel of the 4th US Circuit Court of Appeals will allow a Moore County man to proceed with his federal lawsuit against three Southern Pines police officers. Lee Marvin Harris Sr. argues that the officers engaged in malicious prosecution and fabricated evidence against him.
The 2-1 decision Monday reverses US District Judge William Osteen, who had ruled in favor of officers Jason Perry, Sean Lowrey, and Kyle Marsh. Appellate judges agreed with Osteen that Harris cannot proceed with his lawsuit against the town or its police chief.
“While executing a search warrant at the home of Lee Marvin Harris, Sr., law enforcement officers found a trafficking amount of cocaine in an old, inoperable Cadillac that was parked in the yard,” according to the majority opinion. “They arrested Harris, Sr. for possessing cocaine with intent to distribute.”
“Harris, Sr. spent approximately five months in pretrial detention before federal prosecutors dismissed all charges against him, and he was released,” the opinion continued. Harris filed suit. “He alleged that police officers had omitted material evidence from the prosecutors and grand juries involved in Harris, Sr.’s detention and charging decisions. “
“We hold that the record evinces genuine disputes of material fact bearing on whether Harris, Sr. was arrested and charged without probable cause, and that the officers are not entitled to qualified immunity for the Fourth Amendment malicious prosecution claim,” Judge Roger Gregory wrote. “We further hold that a plaintiff who was not convicted of a crime, but was arrested and detained for several months, can still state a Fourteenth Amendment fabrication of evidence claim, and the district court erred in holding otherwise.”
Southern Pines officers had been investigating Lee Marvin Harris Jr. as a “leader” of a drug-dealing group called the Dope Boy Clic when they executed a search warrant at the older Harris’ home in 2018. A dog sniff search of the Cadillac led officers to “a set of digital scales, a plastic bag wrapped in layers of plastic, 88 grams of a white powdery substance later confirmed to be cocaine, and 13 grams of a white rock substance later confirmed to be cocaine base.”
Officers arrested Harris Sr. for cocaine possession. After authorities threw out the charges, Harris Sr. filed suit in December 2021.
While Osteen rejected Harris Sr.’s arguments, Gregory and Judge Robert Bruce King questioned a ruling in favor of the officers without additional facts. The majority opinion cited a dispute over surveillance video that could have been interpreted as either a drug transaction or payment for a car wash. The opinion also questioned the notion that Harris had to know about the drugs in the car.
“While one can make that assumption about drugs in plain view in the defendant’s kitchen, the assumption does not hold as to an out-of-view vehicle out in the yard,” Gregory wrote. “A car in a yard with an unlocked door that anyone walking by can open is very different from someone’s kitchen. Anyone could have accessed the car without Harris, Sr. knowing and placed the drugs inside. And Harris, Sr. was never observed near the Cadillac.”
“Further, the drugs in the Cadillac were not in plain view,” Gregory added. “Even if they were plainly visible through the window of the Cadillac (which is itself disputed), the Cadillac was under a car cover, so no one could see into the Cadillac just by walking by. Drugs concealed from the public by a car cover and revealed only when officers move the car cover are decidedly not in plain view.”
Judge Allison Jones Rushing dissented. “The defendant police officers had probable cause to arrest plaintiff Lee Marvin Harris, Sr. for drug crimes,” she wrote. “And probable cause defeats Harris’s malicious prosecution and fabrication of evidence claims, which are both based in the Fourth Amendment.”
“The drugs were visible through the Cadillac’s windows when the car cover over the vehicle was lifted,” Rushing added. “The Cadillac was registered to Harris, although the registration was expired. Harris kept the Cadillac’s keys hanging on his bedroom door and gave them to the officers during their search. He was well acquainted with the car’s current condition: he accurately advised the officers which doors on the Cadillac were locked and which ones were unlocked, that there was no battery in the car, and that the trunk would not open.”
“Harris’s son — a suspected leader of a local drug distribution ring — had visited Harris’s home almost daily over the past month, including overnight stays, and had recently been observed speaking with Harris in the front yard,” the dissent continued. “Yet Harris told the officers that his son hadn’t been to his home in months. He also told the officers that his son had not brought anything to his property.”
“These facts would warrant a reasonable officer in believing that Harris had committed crimes of drug possession and trafficking,” Rushing wrote.