John Paul Gomez v. Officer James Markley

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3515
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JOHN PAUL GOMEZ,
Appellant
v.
OFFICER JAMES MARKLEY;
MIDWAY BOROUGH POLICE DEPARTMENT
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
D.C. Civil Action No. 07-cv-00868
(Honorable Nora B. Fischer)
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 9, 2010
Before: SCIRICA, JORDAN, and STAPLETON, Circuit Judges.
(Filed: July 1, 2010)
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OPINION OF THE COURT
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PER CURIAM.
In this civil rights action, John Paul Gomez, a pro se litigant, appeals from the
District Court’s order granting the defendants’ motion for summary judgment. For the
reasons that follow, we will affirm in part, vacate in part, and remand for further

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proceedings consistent with this opinion.
I.
Because we write solely for the benefit of the parties, we will only briefly
summarize the essential facts. Gomez appeals from an order granting summary
judgment; thus, we construe all facts in the light most favorable to him as the non-moving
party. See Groman v. Twp. of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995).
In the evening of March 26, 2007, Officer James Markley pulled over Gomez’s
car. Officer Markely informed Gomez that the car did not have the requisite inspection
stickers. Gomez provided Officer Markley with his license, registration, and insurance
information. After briefly returning to his patrol car, Officer Markley informed Gomez
that his license was suspended and that his registration was expired. Gomez explained
why he lacked an inspection sticker and why his registration was expired, and informed
Officer Markley that he did not believe his license was suspended because he had not
received notice of a suspension. Officer Markley then asked where Gomez lived, and
Gomez explained that the address listed on his driver’s license was different from his
current address because he had moved and had not yet updated his address at the
Department of Motor Vehicles (“DMV”).
At this point, Gomez stated that Officer Markley “abruptly” ordered him to exit the
vehicle and place his hands on top of the car. Officer Markley then put on gloves and
searched Gomez’s person. During the search, Officer Markley asked Gomez if he had

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anything he wanted to disclose before his vehicle was searched. Gomez objected to a
search of his car, and Officer Markley responded with cursing. Officer Markley then
went back to his patrol car.
When he returned, Officer Markley ordered Gomez out of the car again and asked
him to consent to a search of the car. Gomez claimed that he became concerned and
nervous about Markley’s intentions at this time and refused to consent to a search of his
car. Gomez averred that he attempted to call a friend to ask if he would come act as a
witness because he was concerned about Officer Markley’s behavior. Officer Markley
then ordered Gomez not to put his hands in his pockets and threatened to charge anyone
who came to assist him with obstruction of justice. After a neighbor walked by, Officer
Markley began to search Gomez’s vehicle, first looking underneath the driver’s seat and
the carpet. According to Gomez, Officer Markley made racially charged statements about
a recent crime in the neighborhood. Officer Markley then ordered Gomez to step back
from the car and searched the glove compartment and the backseat, removing two bottles
of Visine eye drops. Officer Markley insinuated he had found drugs in the car, but would
not show Gomez what he found, despite Gomez’s inquiries. Notably, in an affidavit
submitted in support of the defendants’ motion for summary judgment, Officer Markley
claimed that he had observed a marijuana seed in plain view on the driver’s seat.
Next, Gomez stated that he told Officer Markley he was making an audio
recording of the traffic stop, and Officer Markley became upset. Officer Markley then

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informed Gomez that he had to do an inventory of the car. At this point, another officer
arrived on the scene. According to Gomez, the search had been ongoing for
approximately one hour at this point.
Officer Markley then began searching the car again, and after informing Gomez
that his car would be impounded, handed him an inventory form to sign. Gomez signed
the form. Gomez stated that the drug and the inventory searches took a total of two hours.
The car was towed, and Gomez claimed that the car was damaged by the towing. He
received three traffic citations in the mail. Gomez was found guilty of driving an
unregistered vehicle and operating a vehicle without a valid inspection, but the
Magisterial District Judge dismissed the charges alleging that Gomez had been driving
with a suspended license.
II.
Gomez commenced an action under 42 U.S.C. § 1983, alleging a violation of his
Fourth Amendment rights, as well as state law claims for defamation, invasion of privacy,
and intentional infliction of emotional distress (IIED). He named as defendants Officer
James Markley and the Midway Borough Police Department. The parties filed cross-
motions for summary judgment. The District Court granted the defendants’ motion,
denied Gomez’s motion, and dismissed all claims with prejudice. Gomez timely
appealed.
III.

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We do not understand Gomez to challenge the first search and, for essentially the1
reasons provided by the District Court, we conclude that summary judgment was properly
granted to the defendants with respect to the third search. In addition, Gomez failed to
raise any argument in his informal brief regarding the District Court’s dismissal of his
state law claims or its determination that the Midway Borough Police Department is not a
“person” subject to potential liability under 42 U.S.C. § 1983. See Laborers’ Int’l Union
v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994) (“An issue is waived unless a
party raises it in its opening brief, and for those purposes ‘a passing reference to an issue
. . . will not suffice to bring that issue before this court.’”) (internal citation omitted).
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We have appellate jurisdiction to review the judgment, and our review is plenary.
See 28 U.S.C. § 1291; Atkinson v. Lafayette Coll., 460 F.3d 447, 451 (3d Cir. 2006).
Summary judgment is appropriate only if, after the evidence taken as a whole is construed
in the light most favorable to the non-moving party, there remains no genuine issue of
material fact. See Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 286 (3d Cir. 2009).
To survive a motion for summary judgment, the non-moving party must present “more
than a scintilla of evidence showing that there is a genuine issue for trial.” Woloszyn v.
County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005).
IV.
The District Court determined that three searches occurred: (1) when Gomez was
removed from his vehicle and searched for weapons; (2) when Officer Markley searched
the vehicle for drugs and/or contraband; and (3) when Gomez’s car was inventory
searched after he was unable to make arrangements for its removal and it had to be taken
into police custody. We are concerned here primarily with the second search.1

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The Fourth Amendment guards against unlawful searches and seizures. The
touchstone of Fourth Amendment analysis is “the reasonableness in all the circumstances
of the particular governmental invasion of a citizen’s personal security.” Terry v. Ohio,
392 U.S. 1, 19 (1968). Thus, a police officer is permitted to conduct a protective search
for weapons to take reasonable steps to ensure his own or others’ safety. Id. Extending
this jurisprudence to automobile searches, if a vehicle is lawfully stopped for a traffic
violation, a police officer may order a driver to exit the vehicle. Pennsylvania v. Mimms,
434 U.S. 106, 111 (1977). If the officer has a reasonable belief based on specific and
articulable facts that a suspect may be armed and dangerous, and may gain immediate
control of a weapon, the officer may search the passenger compartment of an automobile,
limited to those areas in which a weapon may be placed or hidden. Michigan v. Long,
463 U.S. 1032, 1049 (1983).
If there is probable cause to believe a vehicle contains evidence of criminal
activity, an officer may search any area of the vehicle in which evidence might be found.
United States v. Ross, 456 U.S. 798, 820-21, 824 (1982); see also United States v.
Burton, 288 F.3d 91, 100 (3d Cir. 2002). Probable cause requires “a fair probability that
contraband or evidence of a crime will be found in a particular place,” and is based on the
“totality of the circumstances” available at the time of the search. Illinois v. Gates, 462
U.S. 213, 230, 238 (1983). “Probable cause exists where the facts and circumstances
within the arresting officer’s knowledge are sufficient to warrant a reasonable person to

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believe an offense had been committed.” See United States v. McGlory, 968 F.2d 309,
342 (3d Cir. 1992).
In granting summary judgment, the District Court observed that the following facts
were known to Officer Markley when he performed the second search:
1) Gomez was driving an unregistered vehicle without
inspection stickers, and he was driving with a suspended
license.
2) Gomez provided conflicting information about where he was
from and/or where he lived.
3) Gomez exhibited signs of extreme nervousness and kept
placing his hands in his pockets.
4) Gomez had bloodshot eyes.
5) There appeared to be a marijuana seed in plain view on the
driver’s seat of Gomez’s car.
Several of these facts are disputed. Gomez asserted that he explained to Officer Markley
that his driver’s license did not reflect his current address because he had moved and had
not updated his address at the DMV. Gomez also denied that he had bloodshot eyes.
Most significantly, Gomez denied that there was any marijuana in the car and testified
that Officer Markley never informed him that he saw a marijuana seed in the car. Officer
Markley did not retain the seed he claims to have seen before he commenced his search.
Thus, if we accept the facts in the light most favorable to Gomez, we would
consider that Officer Markley reasonably believed that Gomez was operating a vehicle
with an expired registration and without inspection stickers and was driving with a
suspended license. Furthermore Gomez had explained that the address on his license was
outdated. These facts do not support a finding of probable cause to search the car. Even

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if we were to also accept that, at some point, Gomez began acting nervously, the facts are
still not sufficient to support a finding as a matter of law that Officer Markley had
probable cause to believe that there were drugs in the car before he commenced his
search.
V.
Accordingly, we will affirm the judgment of the District Court insofar as it
rejected Gomez’s claims pertaining to the third search. With respect to the District
Court’s determination that Officer Markley had probable cause to conduct the second
search, we will vacate the District Court’s decision and remand for further proceedings
consistent with this opinion.

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