Bureau v. Nashua Police Department et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Steven Patrick Bureau
v. Case No. 22-cv-576-LM
Nashua Police Department
Officer Brian Howe
Officer Jeremy Reamer
REPORT AND RECOMMENDATION
Plaintiff Steven Bureau has sued the Nashua, New
Hampshire, Police Department (“NPD”) and two NPD officers,
claiming that he was unlawfully arrested and that his vehicle
was seized in violation of his Fourth Amendment rights.1
Presently before the court is the defendants’ motion for summary
judgment, which has been referred to the undersigned Magistrate
Judge for a report and recommendation. See 28 U.S.C. §
636(b)(1)(B). As explained below, the defendants’ motion should
be granted.
Standard of Review
A movant is entitled to summary judgment if it “shows that
there is no genuine dispute as to any material fact and [that
it] is entitled to judgment as a matter of law.” Fed. R. Civ. P.
1 See Order on Am. Compl. (Doc. No. 6).
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56(a). A factual dispute is genuine if “the evidence about the
fact is such that a reasonable jury could resolve the point in
favor of the” nonmovant. Rodríguez-Cardi v. MMM Holdings, Inc.,
936 F.3d 40, 47 (1st Cir. 2019) (quoting Sánchez v. Alvarado,
101 F.3d 223, 227 (1st Cir. 1996)). A fact is material if it has
the “potential to influence the outcome of the suit under the
applicable law.” Id. at 46 (quoting Cherkaoui v. City of
Quincy, 877 F.3d 14, 23 (1st Cir. 2017)). All facts and
reasonable inferences are viewed in the light most favorable to
the nonmovant. Kelley v. Corr. Med. Servs., Inc., 707 F.3d 108,
115 (1st Cir. 2013).
Where, as here, the non-movant fails to object to a summary
judgment motion, ‘a district court is free, in the exercise of
its sound discretion, to accept the moving party's facts as
stated.’” Advanced Flexible Cirs., Inc. v. GE Sensing &
Inspection Techs. GmbH, 781 F.3d 510, 521 (1st Cir. 2015)
(quoting Cabán Hernández v. Philip Morris USA, Inc., 486 F.3d 1,
7 (1st Cir. 2007)); see LR 56.1 (“All properly supported
material facts set forth in the moving party’s factual statement
may be deemed admitted unless properly opposed by the adverse
party.”); see also Lopez-Hernandez v. Terumo Puerto Rico LLC, 64
F.4th 22, 26 (1st Cir. 2023) (“We have repeatedly emphasized the
importance of complying with [a similar] local rule and have
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implored litigants to comply or ignore it at their peril.”)
(quotation omitted).
Factual Background
At approximately 1:30 AM on January 1, 2020), Nashua Police
received a call from a man, Jerry LaPage, who lived at 85 Allds
Street in Nashua. Howe Aff. (Doc. No. 20-3) ¶ 4. Lepage reported
that there was a male yelling outside at a motor vehicle and
seemed to be trying to pry something from under the car. Id.
Nashua Police Officer Brian Howe was dispatched to the scene.
Id. ¶ 5. Officer Jeremy Reamer also responded, arriving moments
after Howe. Reamer Aff (Doc. No. 20-12) ¶ 3. Both officers were
uniformed and arrived in marked police vehicles. Howe Aff. (Doc.
No. 20-3) ¶ 5; Reamer Aff. (Doc. No. 20-12) ¶ 3. When Howe
arrived, he observed Mr. Bureau at the back of a 2002 Toyota
Sequoia SUV. Howe Aff. (Doc. No. 20-3) ¶ 6. The car was parked
on the sidewalk in front of Danelly’s. Id. ¶ 8 and Exs. 1 & 2
thereto (Doc. Nos. 20-4, 20-5) (photos of SUV parked on
sidewalk). Its rear passenger side tire was completely flat. Id.
¶ 9 and Exs. 3 & 4 thereto (photos of flat) (Doc. Nos. 20-6, 20-
7). Mr. Bureau appeared to be trying to fix the flat with a
bicycle pump. Id. ¶ 10. There were no other people in the area.
Id. ¶ 7; Pl. Dep. (Doc. No. 20-2) at p. 52.
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Officer Howe observed that the tire had a hole in it that
was too big to allow the tire to be pumped up. Howe Aff. (Doc.
No. 20-3) ¶ 11. Howe asked Mr. Bureau what had happened, and Mr.
Bureau explained that he had come to Nashua to drop off his
friend, Ginny, and saw that he had a flat tire. Id. ¶ 12. He was
unable to provide Ginny’s last name. Id. Mr. Bureau provided the
officer with his identification. Id. Officer Howe does not
recall ever encountering Mr. Bureau before this encounter. Id.
¶ 6.
As Officer Howe continued to investigate, Fabio Rodriguez
arrived on the scene. Id. ¶ 13. Mr. Rodriguez, who lived at 90
Allds Street, told Officer Howe that his son, Robinson, had seen
Mr. Bureau’s vehicle strike a fence next door at 88 Allds
Street, next door to his home. Id. ¶ 13. Officer Howe then spoke
with Robinson, who informed him that he had seen Mr. Bureau’s
car back into their neighbor’s fence and drive off. Id. ¶ 14.
Officer Howe then went to 88 Allds Street and saw a fence atop a
low brick wall that appeared to have been recently damaged, with
mud or dirt seemingly sprayed on it from a spinning tire. Id. ¶
15. There were tire marks consistent with a vehicle tire
striking the wall and a vehicle hitting the fence. Id.
Officer Howe returned to the vehicle where Mr. Bureau and
Officer Reamer remained while he was speaking with the
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witnesses. Id. ¶ 16. He concluded that the damage, the
information he had received, and the location of the vehicle,
were all consistent with the car backing into the fence,
suffering a flat tire, and then pulling forward and across the
road to its resting place on the sidewalk. Id.
Officer Howe asked Mr. Bureau if he was in an accident, and
he responded by yelling at the officer to “F--- Off!” Id. ¶ 17.
He responded in a similar manner when Officer Howe asked him
whether he had reported the accident to the police or the
property owner. Id. ¶ 18. Mr. Bureau also refused to provide
any insurance information to the officer. Id. Officer Howe then
placed Mr. Bureau under arrest for violating N.H. Rev. Stat.
Ann. (“RSA”) § 264:25, which requires drivers to “immediately”
stop and provide information about themselves, the accident, and
their insurance information to the property owner or to any
uniformed police officer arriving on the scene. Howe Aff. (Doc.
No. 20-3) ¶ 20. Failure to do so is a Class A misdemeanor. Howe
then transported Mr. Bureau to the police station. Id. ¶ 21.
Based on the accident, Mr. Bureau’s behavior on the scene,
and his observation that Mr. Bureaus smelled of alcohol, Officer
Howe came to believe that Mr. Bureau was intoxicated. Id. ¶ 22.
As a result, he also charged Mr. Bureau with driving under the
influence. Id.
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After arresting Mr. Bureau, the officers turned to his
disabled vehicle, which remained illegally parked on the
sidewalk. Id. ¶ 23. Pursuant to Nashua police policy, a private
tow truck was requested. Id. While Officer Howe transported Mr.
Bureau to the police station, Officer Reamer awaited the arrival
of the tow truck. Reamer Aff. (Doc. No. 20-12) ¶ 5.
Mr. Bureau claims that he later discovered damage to his
car, which he photographed at least three years later. Pl. Dep.
(Doc. No. 20-2) at 55-56. He further asserted that the officers
“must have” damaged his vehicle “because it wasn’t like that
that night.” Id. at 56. In their sworn affidavits, both officers
deny having caused any damage. Howe Aff. (Doc. No. 20-3) ¶ 26;
Reamer Aff. (Doc. No. 20-12) ¶ 6.
Mr. Bureau was ultimately charged with Conduct After an
Accident and Operating Under the Influence. The prosecution nol-
prossed the charges after its expert agreed with Plaintiff’s own
expert that he was unable to assist in the defense of his case.
See State v. Bureau, 459-2020-CR- 00037 (9th Cir. District Div.
– Nashua).
Although he did not file an objection to the defendants’
motion, Mr. Bureau described the events leading up to his
encounter with the officers in his deposition, excerpts of which
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the defendants appended to their memorandum of law. (Doc. No.
20-2). According to Mr. Bureau, prior to the events leading to
his arrest, he was at an event at a church in Merrimack with
Ginny and a male friend of hers whose name and contact
information he does not recall and no longer has. Id. at 17-18.
Ginny lived in Nashua, although Mr. Bureau does not recall
where. Id. at 19. They proceeded to pick up take-out food and
drive to Nashua in Mr. Bureau’s vehicle. Id. at 20-21. They
eventually ended up at a home near Danelly’s. Id. at 21. He
does not recall the address of the home or who lived there.
Mr. Bureau testified that, at some point, the unknown male
needed to get cigarettes and took his car. Id. at 24. Plaintiff
claims this man got lost on the way back and called “Ginny” for
directions. Id. He believes Ginny told her friend to park by
Danelly’s. Id. at pp. 24, 26-28. Mr. Bureau further stated that
he and possibly Ginny then went down the street. Id. He
encountered the unknown male friend at the sub shop, but the man
said nothing about the flat and he apparently returned to the
gathering with Ginny. Id. at 27-28. Mr. Bureau then tried to
move the car and noticed that the flat tire. Id at 28. He was
unable to fix the flat because prior damage prevented his access
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to the spare tire and, in any case, he lacked the necessary
tools. Id. at 41.2
Analysis
The court has previously interpreted Mr. Bureau’s complaint
as setting forth two Fourth Amendment claims: 1) that he was
wrongfully arrested; and 2) that his vehicle was wrongly seized.
The court addresses them in turn.
A. Wrongful Arrest
In general, an arrest is lawful under the Fourth Amendment
if the police officer has probable cause. See Holder v. Town of
Sandown, 585 F.3d 500, 504 (1st Cir. 2009). “[T]he general rule
[is] that Fourth Amendment seizures are ‘reasonable’ only if
based on probable cause to believe that the individual has
committed a crime.” Bailey v. United States, 568 U.S. 186, 192
(2013) (quoting Dunaway v. New York, 442 U.S. 200, 213 (1979)
(internal quotation marks omitted)).
Probable cause exists when
police officers, relying on reasonably trustworthy
facts and circumstances, have information upon which a
reasonably prudent person would believe the suspect
committed or was committing a crime. It does not
require law enforcement officers to have an ironclad
case on the proverbial silver platter. Instead, it
suffices if a prudent law enforcement officer would
reasonably conclude that the likelihood existed that
2 Mr. Bureau did not tell the arresting officers that anyone
had borrowed his car. Howe Aff. (Doc. No. 20-3) ¶ 19.
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criminal activities were afoot, and that a particular
suspect was probably engaged in them. Consequently,
probable cause is not a creature of certainty and does
not require either the level of proof needed to secure
a conviction or even an unusually high degree of
assurance.
United States v. Centeno-Gonzalez, 989 F.3d 36, 45 (1st Cir.
2021) (emphasis supplied). Moreover, if Officer Howe had
probable cause to arrest Mr. Bureau on any charge, then his
ultimate arrest was also reasonable. Kurland v. City of
Providence by & through Lombardi, 711 F. Supp. 3d 57, 70 (D.R.I.
2024) (citing Devenpeck v. Alford, 543 U.S. 146, 153, (2004).
As previously described, Mr. Bureau was arrested for
violating RSA 264:25, pursuant to which
[t]he driver of a vehicle who knows or should have
known that he or she has just been involved in any
accident . . . which results in damages to property,
shall immediately give to . . . the owner of any
property damaged . . . the driver's name and address,
the driver's license number, the driver's or owner's
insurance provider and policy information, if
applicable, the registration number of the vehicle,
and the name and address of each occupant.
In addition, if that information is not given to the
property owner, the driver must provide it to “any uniformed
police officer arriving at the scene of the accident or
immediately to a police officer at the nearest police station.”
Id. In the case of property damage, failure to comply with RSA
264:25 is a misdemeanor. See RSA 264:29.
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Here, under the circumstances presented to him at the time
of Mr. Bureau’s arrest – roughly 1:30 a.m. on New Year’s Day --
Officer Howe could reasonably conclude that Mr. Bureau had
violated RSA 264:25. First, an eyewitness told Officer Howe
that he saw Mr. Bureau’s vehicle hit the fence. Next, Officer
Howe was able to observe and examine the damaged fence, the tire
tracks, the flat tire on the vehicle, and the vehicle’s location
on the sidewalk, as well as the fact that only Mr. Bureau was
present at the scene. And while Mr. Bureau testified in his
deposition that he loaned his vehicle to Ginny’s male friend, he
did not explain that to Officer Howe at the scene.3 The
undisputed combination of the eyewitness report, the observable
damage, Mr. Bureau’s refusal to provide information to the
property owner or Officer Howe, and Mr. Bureau’s denial of any
involvement in the accident, persuades the court that Officer
Howe, as a matter of law, had probable to arrest Mr. Bureau.
Accordingly, Officer Howe is entitled to summary judgment as to
Mr. Bureau’s claim of unlawful arrest. Officer Reamer is also
entitled to summary judgment on this count, as the undisputed
factual record shows that he did not arrest Mr. Bureau.
3 The court takes no position on whether such a disclosure
would have vitiated probable cause.
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B. Vehicle Seizure
It is well-settled that, under their community caretaking
function, law enforcement officers need not have probable cause
or obtain a warrant before conducting a search or seizing
property. United States v. Martinez-Hernandez, No. CR 22-212
(ADC)(HRV), 2024 WL 2873566, at *12 (D.P.R. June 7, 2024)
(citing Boudreau v. Luisser, 901 F.3d 65, 71 (1st Cir. 2018). In
their role as community caretakers, officers may “remove
vehicles that impede traffic or threaten public safety and
convenience.” Id. (citing Boudreau, 901 F.3d at 72).
First recognized by the Supreme Court in Cady v.
Dombrowski, 413 U.S. 433, 441 (1973), the community caretaking
function “is one of the various exceptions to the Fourth
Amendment's requirement that law enforcement officers have
probable cause and obtain a warrant before effecting a search or
seizing property.” Boudreau, 901 F.3d at 71. Pursuant to the
community caretaking function, “an impound decision is
constitutionally valid so long as it is reasonable under the
totality of the circumstances.” United States v. Sylvester, 993
F.3d 16, 23 (1st Cir. 2021). Officers are “not constitutionally
required to ‘select the least intrusive way of fulfilling their
community caretaking responsibilities.’” Id. at 24 (quoting
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United States v. Rodriguez-Morales, 929 F.2d 780, 786 (1st Cir.
1991)).
In applying this reasonableness standard, [c]ourts have
upheld the impoundment of a car from a lot associated with the
arrest location when accompanied by such circumstances as
threats of vandalism, parking restrictions, police liability
concerns, or the inability of the defendant or another later to
move the car.” Jaynes v. Mitchell, 824 F.3d 187, 197 (1st Cir.
2016) (quotation marks and citation omitted). Also, the presence
of a police department protocol outlining non-investigatory
reasons to impound a vehicle is a “significant factor cutting in
favor of blessing a seizure done pursuant to such an objective
protocol.” United States v. Vick, No. 4:23-CR-40003-MRG, 2024 WL
3553107, at *17 (D. Mass. July 26, 2024) (quoting United States
v. Del Rosario-Acosta, 968 F.3d 123, 126-127 (1st Cir. 2020).
Here, all of the above considerations weigh in favor of
finding that the seizure of Mr. Bureau’s car comported with the
Fourth Amendment. The car was undriveable, as Mr. Bureau could
not repair the flat tire. Moreover, since Officer Howe smelled
alcohol on Mr. Bureau’s breath, he could reasonably have
concluded that Mr. Bureau could not safely drive, even if he had
been able to repair the flat tire. The car was also parked
illegally on a public sidewalk. Finally, the Nashua Police
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Department has standardized procedures which permit towing of
any motor vehicle owned or operated by an arrestee unless the
owner is present and can safely drive the vehicle. Moores Aff.
(Doc. No. 20-13) ¶6. Vehicles may also be towed if they are
disabled and in a public way. Id. Accordingly, the defendants
are entitled to summary judgment on Mr. Bureau’s claim that his
vehicle was illegally seized.
C. Claim against the City of Nashua4
Where, as here, a plaintiff cannot prove an underlying
violation of his rights, the City is entitled to summary
judgment as a matter of law. Charron v. Cnty. of York, 49 F.4th
608, 621 (1st Cir. 2022) (citing Wilson v. Town of Mendon, 294
F.3d 1, 7 (1st Cir. 2002) (“Without a finding of a
constitutional violation on the part of a municipal employee,
there cannot be a finding of section 1983 damages liability on
the part of the municipality.”) (cleaned up). As the court has
4 Although Mr. Bureau named the Nashua Police Department as
a defendant, “[a] municipal police department is not an entity
subject to suit under § 1983. Brady v. Whitefield Police Dep't,
No. 19-CV-00147-JL, 2019 WL 2720783, at *2 (D.N.H. June 13,
2019) (citing Henschel v. Worcester Police Dep't., 445 F.2d 624
(1st Cir. 1971) (“If a Police Department may be successfully
sued, it is the city which will pay; the result is the same as
suing the city . . . .”), report and recommendation adopted, No.
19-CV-147-JL, 2019 WL 2716320 (D.N.H. June 27, 2019). The court,
therefore, treats this claim as though it was pleaded against
the City.
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found that neither officer violated Mr. Bureau’s Fourth
Amendment rights, the City is entitled to summary judgment.
Conclusion
Based on the foregoing, the district judge should grant the
defendants’ motion for summary judgment. Any objections to this
Report and Recommendation must be filed within fourteen days of
receipt of this notice. See Fed. R. Civ. P. 72(b)(2). The
fourteen-day period may be extended upon motion. Only those
issues raised in the objection(s) to this Report and
Recommendation are subject to review in the district court. See
Sch. Union No. 37 v. United Nat'l Ins. Co., 617 F.3d 554, 564
(1st Cir. 2010). Any issues not preserved by such objection(s)
are precluded on appeal. See id. Failure to file specific
written objections to the Report and Recommendation within the
specified time waives the right to appeal the district court's
order. See Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168
(1st Cir. 2016).
SO ORDERED.
_______________________________
Andrea K. Johnstone
United States Magistrate Judge
November 18, 2024
cc: Steven Patrick Bureau, pro se
Counsel of Record
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