Professional Documents
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JARROD E. BUSH,
Case No. 1:14-cv-470
Plaintiff,
vs.
COMPLAINT AND
DEMAND FOR JURY TRIAL
COMES NOW the Plaintiff, Jarrod E. Bush, by and though his counsel of record, Jones
& Swartz PLLC, and for his Complaint against the Defendants, complains and avers as follows:
PRELIMINARY STATEMENT
1.
Plaintiff Jarrod E. Bush (Plaintiff or Mr. Bush) brings claims under 42 U.S.C.
1983 and seeks damages against Defendants Idaho State Police, Idaho State Police Trooper
Justin Klitch, Idaho State Police Detective Corey Gates, and Idaho State Police Investigative Aid
Karen Montgomery (collectively Defendants) for committing acts under the color of law
which deprived Mr. Bush of protected rights, privileges, and immunities secured by the
Constitution or laws of the United States.
2.
Defendants deprived Mr. Bush of his personal property without due process of
law, as an excessive fine, and for public use without just compensation.
JURISDICTION AND VENUE
3.
cause of action for violations of federal rights committed under the color of law and the Fifth,
Eighth, and Fourteenth Amendments to the Constitution of the United States of America.
4.
1343(a)(3) and (4) as certain of the controversies arise under the Constitution and laws of the
United States and are brought for the purpose of redressing the violation of Plaintiffs federally
protected civil rights.
5.
6.
8.
At all times relevant hereto, Defendant Trooper Justin Klitch (Trooper Klitch)
Idaho.
was an Idaho State Police Trooper. Trooper Klitch is named as a Defendant in his individual and
official capacities.
9.
Gates) was an Idaho State Police Detective. Detective Gates is named as a Defendant in his
individual and official capacities.
10.
was an Idaho State Police Investigative Aid. Ms. Montgomery is named as a Defendant in her
individual and professional capacities.
11.
agency and assisted Trooper Klitch, Detective Gates, and Ms. Montgomery in the illegal
deprivation of property described herein.
FACTUAL ALLEGATIONS
12.
Plaintiff repeats and realleges each and every allegation in the preceding
executed a traffic stop of a silver Toyota 4-Runner with California plates, driven by Gabriel
Owen (Mr. Owen) in Payette County, Idaho.
14.
Trooper Klitch subsequently arrested Mr. Owen, charging him with Trafficking in
Marijuana.
15.
interrogated Mr. Owen and reviewed the contents of his cellular phone at the Payette County
Jail.
16.
That text correspondence indicated only that Mr. Bush had knowledge that
Based on that text correspondence, Trooper Klitch and Detective Gates texted
Mr. Bush from Detective Gates ISP-issued cellular phone at approximately 2:51 p.m.,
purporting to be Mr. Owen and requesting Mr. Bushs assistance because Owen had been
involved in a car accident and needed a ride.
19.
Trooper Klitch and Detective Gates texted Mr. Bush that he (Owen) would be
waiting at the Chevron Service Station located at 5950 E. Franklin Road in Nampa, Idaho.
20.
Mr. Bush responded that he would be there in 25 minutes and that he would be
Upon information and belief, Mr. Owen was not at the Chevron Service Station
Upon information and belief, none of Mr. Owens property was at the Chevron
At approximately 3:44 p.m., Mr. Bush arrived at the Chevron Service Station in
his red Saturn Ion with the sole intention of assisting Mr. Owen by giving him a ride.
24.
At approximately 3:45 p.m., Detective Gates, ISP Detective Hopkins, and ISP
Detective Sergeant Christensen (collectively Detectives) made contact with Mr. Bush.
25.
The Detectives told Mr. Bush that they knew Mr. Owen was planning on selling
marijuana to Mr. Bush. They told Mr. Bush that it was a done deal, and that there was enough
evidence to charge Mr. Bush with Conspiracy to Traffic in Marijuana.
26.
At all times relevant hereto, Mr. Bush maintained that Mr. Owen had said nothing
to him about marijuana. At all times relevant hereto, Mr. Bush maintained that he had driven to
the Chevron for the sole purpose of assisting Mr. Owen with a ride because he thought
The Detectives asked Mr. Bush whether he had any controlled substances or drug
paraphernalia inside his vehicle. Mr. Bush responded that he did not.
28.
The Detectives repeatedly asked whether they could look inside Mr. Bushs
vehicle.
29.
30.
The Detectives and/or Trooper Klitch told Mr. Bush that a drug detection K-9
would be called to come and walk around the vehicle and that the K-9 would alert on cash.
Mr. Bush was told that the law enforcement officers would conduct the search once the K-9 unit
arrived.
31.
Mr. Bush was repeatedly asked how much cash he had in the vehicle.
32.
Mr. Bush was told that law enforcement personnel were en route to search his
residence.
33.
34.
At approximately 4:04 p.m., Mr. Bush was told that Mr. Owen had, in fact, not
At approximately 4:25 p.m., Canyon County K-9 Sheriff Deputy David Minshall
(Deputy Minshall) arrived at the scene with his drug detection dog.
36.
After performing a free-air sniff around the exterior of Mr. Bushs vehicle,
Deputy Minshall advised Trooper Klitch that the dog had alerted to Mr. Bushs vehicle. Deputy
Minshall did not specify which part of Mr. Bushs vehicle the dog allegedly alerted to.
37.
vehicle.
38.
39.
Nothing illegal was found during the search of Mr. Bushs vehicle.
40.
Trooper Klitch located $4,260.00 U.S. Currency inside a green bag on the front
passenger seat of Plaintiffs vehicle, a black LG Nexus cellular phone, and bank receipts. All of
these items were Mr. Bushs property. All of these items were seized by Trooper Klitch.
41.
At all times relevant hereto, Mr. Bush denied that he knew Mr. Owen was
transporting marijuana and denied that he planned to purchase marijuana from Mr. Owen.
42.
Trooper Klitch detained and searched Mr. Bush and thereafter transported him to
the ISP District 3 Office, where the Detectives interrogated Mr. Bush.
43.
44.
However, Detective Cabaong or Detective Hopkins read Mr. Bush his Miranda
rights. Mr. Bush refused to speak to the Detectives without an attorney present.
45.
At approximately 4:55 p.m. the interrogation was terminated and Mr. Bush was
released.
46.
Mr. Bush was not charged with, or prosecuted for, committing any crime.
47.
The $4,260.00 U.S. Currency and black LG Nexus cellular phone, both belonging
Upon information and belief, the green bag and bank receipts, also belonging to
On or about March 11, 2014, Ms. Montgomery took possession of Mr. Bushs LG
Ms. Montgomery then gave that data to Detective Gates, which he submitted into ISP District 3
Office Evidence.
50.
Upon information and belief, the cellular phone was either returned to ISP
No legal authority existed for Ms. Montgomery to take possession of Mr. Bushs
On or about August 28, 2014, the ISP case against Mr. Bush was closed. No
The ISP Closing Report, prepared by Trooper Klitch on August 28, 2014,
specifically indicated that: Cash seizure being processed. That Report was approved by
Officer No. 2904 on September 4, 2014.
55.
As of the date of this Complaint, Defendants have not initiated any forfeiture
action against Mr. Bushs property, including the $4,260.00 U.S. Currency seized by Trooper
Klitch. Nor has the Nampa City Prosecutors Office or any other prosecutor initiated a civil
forfeiture action related to Mr. Bushs property.
56.
As of the date of this Complaint, Mr. Bush has not received any notification
Mr. Bush has made repeated calls to ISP for the purpose of ascertaining the
As of the date of this Complaint, nearly nine months have passed since
Defendants seized Mr. Bushs property. Mr. Bushs property has not been returned to his
possession.
59.
As of the date of this Complaint, Mr. Bush has not been provided with notice or a
Neither Trooper Klitch, Detective Gates, Ms. Montgomery, nor law enforcement
personnel John Does IV had the legal authority or legal justification to permanently deprive
Mr. Bush of his property without notice and an opportunity to be heard, and/or as a fine for
wrongdoing, and/or without just compensation.
61.
ISP provided Trooper Klitch, Detective Gates, Ms. Montgomery, and/or law
enforcement personnel John Does IV with the means and facilities to permanently deprive
Mr. Bush of his property in violation of Mr. Bushs constitutional rights.
COUNT I
DEPRIVATION OF PERSONAL PROPERTY WITHOUT DUE PROCESS
IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION
62.
Plaintiff realleges and incorporates all of the foregoing allegations as if fully set
forth herein.
63.
Trooper Klitch acted or purported to act in the performance of his official duties
as an employee of, and under the official policy or custom of, the Idaho State Police.
64.
Detective Gates acted or purported to act in the performance of his official duties
as an employee of, and under the official policy or custom of, the Idaho State Police.
65.
duties as an employee of, and under the official policy or custom of, the Idaho State Police.
66.
performance of their official duties as employees of, and under the official policy or custom of,
their respective law enforcement agency.
67.
The Due Process Clauses of the Fifth and Fourteenth Amendments prohibit
Defendants from depriving Mr. Bush of his property without due process of law.
68.
Due process of law requires that a person who has been deprived of property by
parties acting under the color of law be heard at a meaningful time and in a meaningful manner.
69.
Mr. Bush has a protected property right in his $4,260.00 U.S. Currency, the black
LG Nexus cellular phone, the green bag, and the bank receipts.
70.
Without legal authority, Defendants took possession and control of Mr. Bushs
property during the course of the stop and detention executed on February 7, 2014. None of the
property has been returned to Mr. Bush.
71.
required by law.
72.
Defendants permanently deprived Mr. Bush of his black LG Nexus cellular phone
Defendants failed to notify Mr. Bush that his property was subject to any
At all times relevant hereto, Mr. Bush had a clearly established right to a hearing
or a meaningful opportunity to be heard either prior to, or promptly after, Defendants deprived
Mr. Bush of his property.
77.
without notice violated his procedural due process protections because those acts meaningfully
interfered with Mr. Bushs right to be heard regarding the permanent deprivation of his property.
78.
Mr. Bush does not have an adequate post-deprivation state remedy to redress the
At all times relevant hereto, the rights held by Mr. Bush to in his property were
clearly established.
80.
of his property without due process of law, Mr. Bush suffered general and special damages as
alleged in this Complaint and is entitled to relief under 42 U.S.C. 1983.
81.
Mr. Bushs constitutionally protected rights, it was willful, malicious, oppressive and/or reckless,
and was of such a nature that punitive damages should be imposed in an amount commensurate
with the wrongful acts alleged herein.
COUNT II
PROHIBITED EXCESSIVE FINE
IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION
82.
Plaintiff realleges and incorporates all of the foregoing allegations as if fully set
forth herein.
83.
Trooper Klitch acted or purported to act in the performance of his official duties
as an employee of, and under the official policy or custom of, the Idaho State Police.
84.
Detective Gates acted or purported to act in the performance of his official duties
as an employee of, and under the official policy or custom of, the Idaho State Police.
85.
duties as an employee of, and under the official policy or custom of, the Idaho State Police.
86.
performance of their official duties as employees of, and under the official policy or custom of,
The Excessive Fines Clause of the Eighth Amendment limits Defendants power
At all times relevant hereto, Mr. Bush was not charged with, or prosecuted for,
At all times relevant hereto, there was nothing even remotely criminal in
Mr. Bush possessing U.S. Currency, a cellular phone, a bag and bank receipts.
90.
Upon information and belief, neither Mr. Owen nor his property were at the
Chevron Service Station when Mr. Bushs vehicle was searched and his property seized.
91.
extracted a payment from Mr. Bush as punishment for some unidentified offense.
92.
punishment for knowing Mr. Owen and/or to deter Mr. Bush from further associations with
Mr. Owen.
93.
Upon seizing Mr. Bushs property, Defendants did not intend to return Mr. Bushs
The acts by Defendants of seizing and holding Mr. Bushs property as punishment
and a deterrent where he had committed no offense constitute a penalty that is grossly
disproportionate to the gravity of any alleged offense in violation of his constitutional right to be
free from excessive fines.
95.
These acts by Defendants permanently deprived Mr. Bush of the use of his
property.
96.
At all times relevant hereto, the right held by Mr. Bush to be free from excessive
of his property as punishment and as a deterrent where Mr. Bush committed no offense,
Mr. Bush suffered general and special damages as alleged in this Complaint and is entitled to
relief under 42 U.S.C. 1983.
98.
Mr. Bushs constitutionally protected rights, it was willful, malicious, oppressive and/or reckless,
and was of such a nature that punitive damages should be imposed in an amount commensurate
with the wrongful acts alleged herein.
COUNT III
DEPRIVATION OF PROPERTY WITHOUT COMPENSATION
IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION
99.
Plaintiff realleges and incorporates all of the foregoing allegations as if fully set
forth herein.
100.
Trooper Klitch acted or purported to act in the performance of his official duties
as an employee of, and under the official policy or custom of, the Idaho State Police.
101.
Detective Gates acted or purported to act in the performance of his official duties
as an employee of, and under the official policy or custom of, the Idaho State Police.
102.
duties as an employee of, and under the official policy or custom of, the Idaho State Police.
103.
performance of their official duties as employees of, and under the official policy or custom of,
their respective law enforcement agency.
104.
Mr. Bush has a constitutionally protected property interest in the $4,260.00 U.S.
Currency, the black LG Nexus cellular phone, the green bag, and the bank receipts.
105.
property.
106.
107.
Defendants have permanently deprived Mr. Bush of his black LG Nexus cellular
Currency, green bag, and bank receipts without due process of law or just compensation.
109.
Mr. Bushs personal property have permanently deprived Mr. Bush of all use of his personal
property without just compensation.
110.
Upon information and belief, some or all of the property seized from Mr. Bush
was used to the benefit of the ISP and/or the State of Idaho.
111.
compensation for the value of Mr. Bushs property that was seized and withheld from him, and
maintained by Defendants for the direct, positive benefit of the ISP and/or the State of Idaho.
112.
At all times relevant hereto, the rights held by Mr. Bush to be free from an
unconstitutional taking of his private property without compensation were clearly established.
113.
of his property without just compensation, Mr. Bush suffered general and special damages as
alleged in this Complaint and is entitled to relief under 42 U.S.C. 1983.
114.
Mr. Bushs constitutionally protected rights, it was willful, malicious, oppressive and/or reckless,
and was of such a nature that punitive damages should be imposed in an amount commensurate
with the wrongful acts alleged herein.
DAMAGES
115.
Plaintiff repeats and realleges each and every allegation in the preceding
herein, Plaintiff has been injured as follows, but not limited to:
(a) Plaintiff has been deprived of his constitutional rights guaranteed by the
United States Constitution.
(b) Plaintiff has suffered permanent loss of his property.
(c) Plaintiff has incurred monetary expenses due to the termination of each of the
above losses of right or property.
(d) Plaintiff has incurred, and will be required to incur in the future, legal fees
and costs to protect his rights.
ATTORNEY FEES AND COSTS
Plaintiff has been forced to incur attorney fees and costs related to the prosecution of this
matter.
Plaintiff is entitled to recover his reasonable costs and attorney fees pursuant to
42 U.S.C. 1981a(b), 1983, and 1988; Idaho Code 12-117, 12-120 and/or 12-121; Federal
Rule of Civil Procedure 54; and other applicable law.
DEMAND FOR JURY TRIAL
Plaintiff demands a trial by jury of no less than twelve (12) persons on all issues and all
claims herein.
For an award of special, general and punitive damages for Plaintiffs losses
incurred as a result of the Defendants violations of Plaintiffs civil rights as guaranteed by the
Fifth, Eighth, and Fourteenth Amendments of the United States Constitution in an amount that
will fully and fairly compensate the Plaintiff for his losses, pain and suffering, and emotional
distress and anguish in amounts to be determined at trial;
2.
For punitive damages based upon Defendants willful violations of and callous
indifference to Plaintiffs constitutionally protected rights, in amounts that will deter similar
wrongful conduct in the future, to be determined at trial;
3.
4.
For reasonable attorney fees incurred in the prosecution of this action, or, in the
event judgment is taken by default against any Defendant, the amount of $5,000; and
5.
For all other and further relief as the Court deems just and equitable, and to which
By