Case: 4:15-cv-00869 Doc. #: 1 Filed: 06/03/15 Page: 1 of 14 PageID #: 1
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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI EASTERN DIVISION
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RONALD CALZONE,
8
Plaintiff,
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v.
Case No. 4:15-cv-869
CHRIS KOSTER, in his official capacity as Attorney General for the State of Missouri; J. BRET JOHNSON, in his official capacity as Superintendent of the Missouri State Highway Patrol; and JEREMIAH W. NIXON, in his official capacity as Governor of the State of Missouri,
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF—CIVIL RIGHTS [42 U.S.C. § 1983]
14 Defendants. 15 16
COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF
17 INTRODUCION 18 1.
This civil rights case challenges the validity of a Missouri statute that purports to
19 allow certain law enforcement officials to stop and inspect any commercial vehicle, anywhere, 20 and at any time, even if the official has no reason whatsoever to believe that the vehicle or its 21 driver are involved in the violation of any law. 22 2.
Ron Calzone was an ordinary citizen minding his own business one June afternoon
23 when he found himself pulled over by a member of the Missouri State Highway Patrol and 24 Complaint for Decl. & Inj. Relief–Civil Rights Page 1 of 14 Case No. 4:15-cv-869
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detained for more than an hour for no reason other than the officer “did not recognize the truck
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or the markings displayed on the vehicle” Calzone was driving. The officer that pulled Calzone
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over openly acknowledged that the officer had not suspected Calzone of violating any state law
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at the time he was seized.
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3.
Both the Fourth Amendment to the U.S. Constitution and Article I, § 15 of the
6
Missouri Constitution are designed to secure citizens’ persons and effects against unreasonable
7
searches and seizures; with this lawsuit the Plaintiff is asking this Court to enforce these
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constitutional provisions in such a way that prevents government officials from seizing and/or
9
searching citizens and their vehicles unless the official perpetrating the seizure or search has, at a
10
bare minimum, some reason to suspect that the driver or their vehicle are involved in the violation
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of a law.
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JURISDICTION AND VENUE
4.
This Court has original jurisdiction over this cause pursuant to 28 U.S.C. §§
1331 and 1343, 42 U.S.C. § 1983, and 28 U.S.C. §§ 2201 and 2202. 5.
Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(2) because
the events giving rise to the claims at issue occurred in this District.
6.
Divisional venue is proper in the Eastern Division because the events leading
to the claim for relief arose in Phelps County, Missouri. E.D.Mo.L.R. 2.07(A)(1), (B)(2).
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PARTIES 7.
Plaintiff Ron Calzone is a resident of the State of Missouri.
8.
Defendant Chris Koster is the Attorney General of the State of Missouri. Koster
is the State’s chief law enforcement officer and is responsible for instituting proceedings necessary to enforce state statutes. Mo. Rev. Stat. § 27.060 (2015). Under Missouri law the
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Attorney General is authorized to assist prosecutors when so directed by the Governor and to sign
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indictments when directed by the courts. Mo. Rev. Stat. § 27.030 (2015). He is sued in his official
3
capacity.
4
9.
Defendant J. Bret Johnson is the Superintendent of the Missouri State Highway
5
Patrol. The Missouri State Highway Patrol is an agency of the State of Missouri and is tasked
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with enforcing traffic laws of the State. Mo. Rev. Stat. § 43.025 (2015). The Superintendent of
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the Missouri State Highway Patrol is required to “promulgate rules and regulations relating to the
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implementation of the provisions of” Mo. Rev. Stat. § 304.230 the statute whose constitutionality
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is challenged in this lawsuit. He is sued in his official capacity.
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10.
Defendant Jeremiah Nixon is the Governor of the State of Missouri. The supreme
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executive power of the State lies with the Governor. Mo. Const. Art. IV, § 1. He has the duty to
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“take care that the laws are distributed and faithfully executed.” Mo. Const. Art. IV, § 2. He is
13
sued in his official capacity.
14 15
11.
All actions by the Defendants, their officers, employees, or agents described herein
were taken under color of state law.
16 17
STATUTE AT ISSUE 12.
Mo. Rev. Stat. § 304.230 specifies that certain law enforcement officers approved
18
by the Missouri State Highway Patrol “have the authority to conduct random roadside
19
examinations or inspections” to determine if vehicles comply with various restrictions established
20
in sections 304.170 to 304.230.
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13.
Section 304.230.1 authorizes these officers to require a driver to “stop, drive, or
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otherwise move” their vehicle “to a location to determine compliance with sections 304.170 to
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304.230,” explicitly stating that this authority exists “with or without probable cause to believe
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that the size or weight [of the vehicle] is in excess of that permitted by sections 304.170 to
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304.230.” [emphasis added]
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14.
Mo. Rev. Stat. §§ 304.170 to 304.230 relate to size and weight limits imposed on
4
commercial vehicles; § 304.320 only explicitly authorizes law enforcement officers to stop and
5
inspect a vehicle “with or without probable cause” if the stop and inspection are aimed at ensuring
6
compliance with the size and weight restrictions imposed on commercial vehicles.
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15.
Section 304.230.2 states that “any highway patrol officer is hereby given the power
8
to stop any such conveyance or vehicle as above described upon the public highway for the
9
purpose of determining whether such vehicle is loaded in excess of the provisions of sections
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304.170 to 304.230.” 16.
Section 304.230.3 and Mo. Rev. Stat. § 34.232 (2015) expressly contemplate that
12
the inspections authorized by the statute will not be limited to permanent weigh stations
13
established alongside thoroughfares, but may also be conducted at the discretion of an authorized
14
officer and at locations of the authorized officer’s choosing.
15
17.
Upon information and belief, no statute, regulation, or policy limits the discretion
16
that § 304.230 grants to a highway patrol officer who wishes to pull over a commercial vehicle
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and to demand that its driver submit to an inspection, even if there is no probable cause to believe
18
that the vehicle or the driver are in violation of any laws.
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FACTUAL ALLEGATIONS 18.
Ron Calzone owns and occasionally operates a dump truck he uses in support of
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his cattle and horse ranch; the truck has Missouri-issued 54,000 lb. local license plates, and
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Calzone holds a valid Missouri-issued commercial driver’s license.
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19.
Being licensed for “local use only” means that Calzone’s truck is subject to
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biannual inspections made at inspection stations authorized by the Missouri State Highway Patrol.
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20.
On the morning of June 3, 2013, at around 10:00 a.m., Calzone had taken his truck
3
for a Missouri Motor Vehicle Inspection; the inspection was performed at an inspection station
4
authorized by the Missouri State Highway Patrol and the truck passed the inspection.
5
21.
At 11:18 a.m. on the same day, Calzone secured his annual registration for the
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22.
Neither Calzone nor his ranch is involved in any pervasively- or closely-regulated
8
businesses.
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23.
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truck.
Calzone does not use his truck outside the state of Missouri and does not act as a
common carrier or otherwise use his truck for hire. 24.
On June 3, 2013, Calzone was not using the dump truck for any commercial
12
purpose at all; he had taken the truck out that day for the purpose of gathering some gravel for
13
use in his daughter’s chicken coop.
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25.
Calzone had no reason to believe that merely by driving his vehicle on June 3,
15
2013, he might be surrendering his reasonable expectation of privacy or might in any other way
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diminish his Fourth Amendment rights.
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26.
At approximately 12:45 p.m., Corporal J.L. Keathley of the Missouri State
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Highway Patrol saw Calzone driving on U.S. Highway 63 in Phelps County, Missouri, and
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decided to pull him over.
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27.
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completely empty.
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28.
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At the time Keathley pulled Calzone over, the bed of Calzone’s truck was
Calzone’s truck was also well within the applicable height, length, and width
restrictions for the road on which Calzone was driving.
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29.
No one with experience observing commercial trucks could reasonably have
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thought Calzone’s empty truck exceeded applicable size or weight limits imposed by Missouri
3
law.
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30.
When Keathley approached the truck’s window, Calzone provided Keathley with
5
his Commercial Driver’s License and the vehicle’s registration; Calzone asked if he had been
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speeding or had committed some other violation of state law.
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31.
Keathley admitted that he had not observed Calzone committing any violation of
state law prior to pulling over Calzone’s vehicle. 32.
Instead, Keathley’s sole stated motivation for deciding to pull Calzone over was
that Keathley “did not recognize the truck or the markings displayed on the vehicle.” 33.
Keathley asked Calzone if he could inspect the truck, but Calzone responded that
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Calzone is a “hard-headed constitutionalist,” and that if Keathley had no reason to believe that
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Calzone had broken any laws, Calzone believed the stop was unconstitutional.
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34.
Keathley told Calzone that § 304.230 authorizes Missouri State Highway Patrol
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officers to stop commercial vehicles and inspect them whether or not the officer has any probable
16
cause to believe that the vehicle or driver is violating any law.
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35.
Despite being warned that Calzone would be issued a citation if he refused to
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consent to the inspection Keathley wished to conduct, Calzone denied Keathley’s request to
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inspect the vehicle.
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36.
Calzone based his refusal on (1) the fact that Keathley had explicitly told him that
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the stop was not prompted by any suspicion that Calzone had violated any state law and (2)
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Calzone’s belief that the Fourth Amendment requires a government official to have probable
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cause to believe that a person or piece of property is involved in the commission of a crime if the
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officer wishes to conduct a non-consensual, warrantless search or seizure of that person or their
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property.
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37.
After Calzone refused consent for the commercial motor vehicle inspection,
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Keathley sought and received approval to conduct a motor fuel tax evasion check to see if Calzone
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was using dyed motor fuel.
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38.
Keathley’s formal arrest report stated that the only grounds he had for believing
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that Calzone might be using dyed motor fuel was Calzone’s statement that he was “a hard-headed
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constitutionalist.”
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39.
Calzone did not wish to consent to the dyed motor fuel test; he only consented to
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it because Keathley told Calzone that refusing the test would have “serious consequences with
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the state and the Internal Revenue Service.”
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40.
After Keathley conducted the dyed motor fuel test, the results showed that Calzone
was not using illegal dyed fuel. 41.
Keathley issued Calzone a citation for refusal to submit to a commercial motor
vehicle inspection, then allowed Calzone to resume driving. 42.
In all, Calzone was not permitted to resume driving until about 1:56 p.m., well
more than an hour after Keathley had pulled him over. 43.
The Phelps County Prosecutor initially pursued a conviction against Calzone for
19
refusal to submit to a commercial motor vehicle inspection, but the prosecution was terminated
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by Nolle Prosequi on April 4, 2014.
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44.
Calzone continues to hold his commercial driver’s license and occasionally to
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drive commercial-type vehicles; he believes that unless the Court firmly establishes his
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constitutional right to be free from the sort of suspicionless, warrantless seizure to which he was
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subjected on June 3, 2013, he will remain at risk for future suspicionless seizures by officers of
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the Missouri State Highway Patrol.
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45.
Calzone is also pursuing this lawsuit to prevent Missouri law enforcement officers
4
from relying on § 304.230 to subject other similarly-situated citizens to the same kind of
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constitutional violations to which he was subjected.
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COUNT ONE
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Declaratory Judgment that § 304.230 is Facially Unconstitutional
8
Under the Fourth Amendment, Fourteenth Amendment, and Mo. Const. Art. I, § 15
9
46.
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The Plaintiff incorporates and realleges the allegations contained in the foregoing
paragraphs as if set forth fully herein. 47.
Both the Fourth Amendment to the U.S. Constitution and Article I, § 15 of the
12
Missouri Constitution are designed to protect citizens against unreasonable searches and seizures
13
perpetrated by government officials; for the purposes of this lawsuit, the protections provided by
14
these constitutional provisions are coextensive. See State v. Jones, 865 S.W.2d 658 (Mo. 1993).
15
48.
The protections of the Fourth Amendment are made applicable against state
16
governments through the Fourteenth Amendment to the U.S. Constitution. Mapp v. Ohio, 367
17
U.S. 643 (1961).
18
49.
The basic purpose of the Fourth Amendment is to safeguard the liberty, privacy
19
and security of individuals agaist arbitrary and oppressive invasions by government officials. See
20
Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978); U.S. v. Ortiz, 422 U.S. 891, 895 (1975).
21
50.
A law enforcement officer’s stoppage of a vehicle and detention of the vehicle’s
22
occupant(s) constitutes a seizure within the meaning of the Fourth and Fourteenth Amendments,
23
even if the purpose of the stop is limited and the resulting detention is “quite brief.” Delaware v.
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Prouse, 440 U.S. 648, 653 (1979). 51.
A person is “seized” within the meaning of the Fourth Amendment as soon as a
3
law enforcement officer signals for the person to pull their vehicle to the side of the road. U.S. v.
4
Nichols, 448 F.2d 622, 624 (8th Cir. 1971).
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52.
Administrative inspections are searches for the purposes of the Fourth
Amendment. Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978). 53.
In general, a government search of private property without the owner’s consent
is unreasonable unless the search is authorized by a valid search warrant. Id. 54.
Courts have nonetheless held that in certain closely limited circumstances in which
10
the government has asserted a sufficiently important interest unrelated to detecting evidence of
11
ordinary criminal wrongdoing, the Fourth Amendment may allow brief, minimally-intrusive,
12
suspicionless stops of vehicles at temporary or permanent checkpoints.
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55.
The U.S. Supreme Court has also pointed out, however, that for the purposes of
14
Fourth Amendment analysis there is a constitutionally significant difference between stops made
15
at a temporary or permanent checkpoint and a roving patrol officer’s seizure of vehicles and
16
citizens when the officer has no reason to believe the vehicles or citizens are involved in a
17
violation of the law.
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56.
Checkpoint stops are considered to be less intrusive of citizens’ liberty than roving
stops. Ortiz, 422 U.S. at 895. 57.
Even so, the government must still bear the burden of justifying its reasons for
establishing checkpoint or roadblock stops. 58.
The statute at issue in this case, § 304.230, explicitly purports to authorize certain
law enforcement officers to engage in the warrantless seizure and detention of citizens and their
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vehicles even when the officers have no reason at all to believe that the vehicle or the citizen(s)
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within it are involved in illegal activity.
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59.
Section 304.230 authorizes not only the establishment of permanent weigh stations
4
and temporary checkpoints at which these suspicionless seizures will take place, but also permits
5
specified officers to make “roving� stops of vehicles and citizens even when there is no reason to
6
believe the vehicle or the citizen(s) within it are involved in illegal activity.
7
60.
The U.S. Supreme Court has made clear that even when citizens are driving
8
vehicles the Fourth Amendment requires individualized suspicion of wrongdoing before a law
9
enforcement officer may conduct a search or seizure. City of Indianapolis v. Edmond, 531 U.S.
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32, 37 (2000).
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61.
Where a law or government policy authorizes seizures of citizens or property
12
without probable cause to believe the person or property is involved in a violation of the law,
13
courts have developed a balancing test to determine if the seizures so authorized may be squared
14
with the Fourth Amendment. See, e.g., New York v. Burger, 482 U.S. 691 (1987).
15
62.
Upon information and belief, there is no evidence that Missouri is plagued with
16
vehicles that exceed the size and weight limitations imposed by sections 304.170 to 304.230 or
17
that the state is facing severe or extraordinary burdens as a result of oversized vehicles on its
18
roads.
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63.
Upon information and belief, Missouri has no need to subject its citizens to
20
suspicionless seizures and searches that can last more than an hour in order to adequately address
21
any risks Missouri is actually facing from oversized vehicles on its roads; Missouri can adequately
22
address those risks by allowing law enforcement officials to conduct searches and seizures
23
wherever there is probable cause to believe that a vehicle is violating size and weight restrictions.
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64.
Upon information and belief, § 304.230 does not adequately notify those who
2
might drive vehicles that the section makes subject to suspicionless search and seizure that the
3
searches and seizures so authorized have a properly defined scope.
4
65.
Upon information and belief, § 304.230 does not in any meaningful way limit the
5
discretion of officers conducting “roving” searches or seizures regarding the time or place of the
6
inspections authorized by the statute, nor does it meaningfully limit the scope of those inspections
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with regard to the vehicles or persons the officers might target.
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66.
A typical inspection of the sort anticipated under § 304.230 would take from
9
twenty minutes to over an hour; this is a far greater intrusion into a citizen’s privacy and burden
10
on a citizen’s liberty than might be justified for a suspicionless stop of a vehicle, regardless of
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whether the stop takes place at a permanent checkpoint, a temporary roadblock, or as a result of
12
a roving patrol.
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67.
The provision allowing the suspicionless seizure of persons and property
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effectively strip citizens who drive any vehicle that could be defined as a “commercial vehicle”
15
of the constitutional protections against unreasonable searches and seizures that are demanded
16
under the Fourth and Fourteenth Amendments and Mo. Const. Art. I, § 15.
17
68.
Therefore, this Court should issue a declaratory judgment, pursuant to 42 U.S.C.
18
§ 1983, that insofar as § 304.230 allows government officials to seize and search vehicles and
19
citizens “without probable cause” to believe that the vehicles and citizens are violating any law,
20
the statute facially violates the Fourth and Fourteenth Amendments and Mo. Const. Art. I, § 15,
21
and for that same reason should issue an order enjoining the Defendants and their officers,
22
employees, or agents from relying on § 304.230 to seize or search any vehicle or citizen unless
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there is probable cause to believe the vehicle or citizen exceeds the size and weight limitations
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sections 304.170 to 304.230 impose on vehicles travelling Missouri roads.
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COUNT TWO
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Declaratory Judgment that Corporal Keathley Violated Calzone’s Rights Under the Fourth and
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Fourteenth Amendments by Applying § 304.230 to Seize Calzone on June 3, 2013.
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69.
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The Plaintiff incorporates and realleges the allegations contained in the foregoing
paragraphs as if set forth fully herein. 70.
Even if this Court finds that § 304.230 survives a facial challenge, it must find that
8
Keathley violated Calzone’s rights under the Fourth and Fourteenth Amendments by relying on
9
that statute to stop and detain Calzone for more than an hour even though Keathley never had
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probable cause to believe that Calzone had violated any law. 71.
To the extent that courts have held that the Fourth Amendment might tolerate
12
suspicionless seizures of vehicles and/or persons, those holdings have been limited to
13
circumstances in which the seizures are (1) brief, (2) standardized, (3) discretionless, and (4)
14
targeted at an important state interest distinguishable from the general interest in crime control.
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72.
Keathley’s June 3, 2013, seizure of Calzone and his vehicle was not brief and
nothing in § 304.230 requires a search or seizure justified by that statute to be brief. 73.
Upon information and belief, Keathley’s June 3, 2013, seizure of Calzone and his
18
vehicle was not standardized and nothing in § 304.230 requires a search or seizure justified by
19
that statute to be standardized.
20
74.
Upon information and belief, Keathley’s June 3, 2013, seizure of Calzone and his
21
vehicle was conducted solely at Keathley’s own discretion and nothing in § 304.230 limits the
22
discretion of an officer conducting a search or seizure pursuant to that statute.
23
75.
Upon information and belief, Keathley’s June 3, 2013, seizure of Calzone and his
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vehicle was not targeted at an important state interest distinguishable from the general interest in
2
crime control.
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76.
As such, the June 3, 2013, seizure of Calzone and his vehicle which Keathley
4
justified by reference to § 304.230 violated Calzone’s privacy and liberty as protected under the
5
Fourth and Fourteenth Amendments and Article I, § 15 of the Missouri Constitution.
6
77.
Even if the Court should decide that § 304.230 might constitutionally be used to
7
justify suspicionless searches and seizures of vehicles at permanent checkpoints or temporary
8
roadblocks designed to quickly evaluate whether a vehicle exceeds the size and weight limitations
9
imposed by section 304.170 to 304.230, § 304.230 cannot constitutionally be applied to subject
10 11
Missouri drivers to suspicionless seizures perpetrated by roving law enforcement officers. 78.
Therefore, this Court should issue a declaratory judgment, pursuant to 42 U.S.C.
12
§ 1983, that § 304.230 may not constitutionally be applied in a way that allows roving government
13
officials to subject Missouri citizens to suspicionless searches and seizures that are not brief,
14
standardized, discretionless, and/or targeted at an important state interest distinguishable from the
15
general interest in crime control, and it should issue an order enjoining the Defendants and their
16
officers, employees, or agents from relying on § 304.230 conduct suspicionless roving searches
17
and seizures.
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WHEREFORE, the Plaintiff asks this Court to:
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A. Enter a declaratory judgment, pursuant to 42 U.S.C. § 1983, finding Mo. Rev. Stat.
20
§ 304.230 unconstitutional on its face or, in the alternative, that it is
21
unconstitutional as it was applied to the Plaintiff on June 3, 2013;
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B. Issue a permanent injunction enjoining enforcement of the “with or without probable cause” provision of § 304.230;
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C. Issue a permanent injunction enjoining the use of roving, suspicionless searches
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and seizures to enforce the size and weight restrictions Missouri has imposed on
3
commercial vehicles;
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D. Award the Plaintiff nominal damages in the amount of $1.00 and his costs related
5
to this action, including reasonable attorneys fees, pursuant to 42 U.S.C. § 1988;
6
and
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E. Allow to the Plaintiff any such other relief as the Court deems just and equitable.
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Respectfully submitted,
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13
___________________________________ DAVID E. ROLAND, #60548MO FREEDOM CENTER OF MISSOURI 14779 Audrain Road 815 Mexico, Missouri 65265 Phone: (314) 604-6621 Fax: (314) 720-0989
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ATTORNEY FOR PLAINTIFF
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