Leola Smith v. Cathy L. Lanier , Chief , Metropolitan Police Department - in Her Personal

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 21, 2013 Decided July 12, 2013
Unsealed August 7, 2013
No. 11-7126
LEOLA S MITH,
APPELLANT
v.
C ATHY L. LANIER , C HIEF , M ETROPOLITAN P OLICE
DEPARTMENT - IN HER PERSONAL AND OFFICIAL CAPACITIES , ET
AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-00808)
James R. Klimaski argued the cause for appellant. With
him on the briefs were John P. Racin and Lynn I. Miller.
James C. McKay Jr., Senior Assistant Attorney General,
Office of the Attorney General for the District of Columbia,
argued the cause for appellees. With him on the brief were
Irvin B. Nathan, Attorney General, Todd S. Kim, Solicitor
General, and Donna M. Murasky, Deputy Solicitor General.

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Before: R OGERS and TATEL, Circuit Judges, and
S ENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: After the Metropolitan Police
Department searched Leola Smith’s house and found no
illegal drugs, she sued the Chief of Police and others, alleging
that an MPD officer lied in the affidavit used to procure the
search warrant. The district court, finding that Smith failed to
raise a genuine issue of material fact as to the affidavit’s
veracity, granted summary judgment to defendants. We
affirm.
I.
On July 13, 2007, MPD Officer Thomas Ellingsworth
submitted an affidavit to a D.C. Superior Court Judge seeking
a warrant to search appellant Leola Smith’s property at 1812
9th Street NW, Washington, D.C. In the affidavit,
Ellingsworth stated that an MPD confidential informant
(“CI”) had carried out a controlled drug buy at Smith’s
property. According to Ellingsworth, a CI contacted him
“[w]ithin the past seventy-two hours . . . in reference to illegal
drug activity occurring within the premises known as 1812
9th Street NW, Washington D.C.” The CI advised
Ellingsworth that “individuals are selling crack cocaine from
within the residence.” Ellingsworth then “provided the CI
with Metropolitan Police Department funds and dropped [the
CI] off” near Smith’s property. “Once inside the building the
CI advised that [the CI] knocked on the house door and an
unknown subject answered.” The CI advised the individual of
the CI’s “intention to purchase a quantity of cocaine,” entered
the house, and “handed that individual the MPD funds in
exchange for crack cocaine.” After leaving the premises, the
CI “handed the M.P.D. officer a piece of white paper which

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contained a loose white rock like substance, a portion of
which field tested positive for cocaine base.”
Based on Ellingsworth’s affidavit, the Superior Court
Judge approved the warrant application, and on July 14
Ellingsworth and other MPD officers conducted a search of
Smith’s residence. The search yielded no illegal drugs.
Smith, along with Dion Franklin, another person living at
the property, then filed suit in the United States District Court
against Chief of Police Cathy Lanier, the District of
Columbia, and several MPD officers, alleging, among other
things, that the search violated their Fourth Amendment
rights. Specifically, they alleged that Ellingsworth lied when
he stated in his affidavit that a CI had carried out a controlled
drug buy at the property. See Am. Compl. ¶¶ 88–94.
Defendants subsequently moved for a protective order to
limit discovery regarding the CI, invoking the “informer’s
privilege,” which permits the government “to withhold from
disclosure the identity of persons who furnish information of
violations of law to officers charged with enforcement of that
law.” Roviaro v. United States, 353 U.S. 53, 59 (1957).
Finding the informer’s privilege applicable and concluding
that no exception was warranted, the district court granted
defendants’ motion for a protective order.
At some point during discovery, Smith’s lawyer learned
that the MPD was unable to locate the file for the CI who
allegedly participated in the controlled buy. Apparently as a
result, the district court ordered defense counsel to “submit an
ex parte affidavit attesting to counsel’s efforts to meet with
the confidential informant, the results of such a meeting,” and
“the substance of what [counsel] has learned, if anything,
from the confidential informant” about the events related to

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the controlled drug buy. The district court also directed
counsel to file a public affidavit “attesting to the scope and
results of the search made for relevant documents, including
but not limited to: the originals of documents already
produced; any documents or records reflecting or relating to
the controlled buy and any drugs allegedly bought by the
confidential informant.”
Pursuant to this order, counsel filed sealed and ex parte
declarations by three MPD officers, including Inspector Brian
Bray. At a status conference the next day, the district court
informed Smith’s counsel of the ex parte declarations and
explained that Inspector Bray “showed me the file that is
approximately five, six inches thick regarding the C.I. in this
case. This file covers many years. And it is my information
and I have every reason to believe it is correct that this is an
active C.I.” The district court added, however, that “I think
it’s fair to say that . . . the documents that this investigator has
reviewed do not relate specifically to” the date of the
controlled drug buy. According to the district court, Inspector
Bray had “personally searched the file and has nothing to
produce regarding this particular transaction”; the file “has
not a piece of paper based on his search” related to the date of
the controlled drug buy.
Defendants subsequently moved for summary judgment,
and the district court granted the motion in part and denied it
in part. Smith v. Lanier, 779 F. Supp. 2d 79 (D.D.C. 2011).
With respect to the claim that Ellingsworth lied in his
affidavit regarding the controlled drug buy, the district court
found that plaintiffs had failed to raise a genuine issue of
material fact sufficient to survive summary judgment. Id. at
86. According to the court, plaintiffs had “submitted no
affirmative evidence that Ellingsworth concocted a fake
informant”; instead, “the only ‘evidence’ plaintiffs have

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introduced to support this claim is based on speculation and
innuendo.” Id. The district court rejected plaintiffs’ argument
that “the absence of police records relating to the informant
creates a genuine question as to whether the informant ever
existed,” explaining that plaintiffs “provided no case law
suggesting that missing police records alone are sufficient to
transform the existence of a CI into a genuine question of
fact.” Id. In addition, the court noted that “[a]lthough
defendants concede that the working file and unit file relating
to the CI are missing,” they had “produced documentation
showing that a CI performed a controlled drug buy at the
Property,” including documents demonstrating “that a white
rock substance was obtained by the CI as a result of the
controlled buy.” Id. at 86 n.5.
Although the district court found that plaintiffs had
“failed to place any material fact as to the informant’s
existence into dispute,” it explained that it had “[n]evertheless
. . . reviewed the affidavits submitted by defendants ex parte
and the (ample) documentation of the controlled buy, and has
conducted an in camera hearing to make sure the informant
indeed existed.” Id. (internal quotation marks omitted).
“Having considered all this evidence,” the court concluded
that “plaintiffs’ unsupported allegations do not create an issue
of material fact.” Id.
The district court also granted summary judgment to
defendants on the remainder of plaintiffs’ claims, with the
exception of Franklin’s unreasonable search claim and both
plaintiffs’ intentional tortious destruction of property claims,
which proceeded to trial. Id. at 90, 93. During the trial, the
district court granted defendants’ oral motion to dismiss the
destruction of property claims. The trial proceeded on
Franklin’s unreasonable search claim, and the jury returned a
verdict in his favor.

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Smith alone now appeals, challenging only the district
court’s grant of summary judgment on her claim that
Ellingsworth lied in his affidavit regarding the controlled drug
buy. “We review the district court’s grant of summary
judgment de novo and may affirm only if, viewing the
evidence in the light most favorable to [Smith] and giving
[her] the benefit of all permissible inferences, we conclude
that no reasonable jury could reach a verdict in [her] favor.”
Jones v. Bernanke, 557 F.3d 670, 674 (D.C. Cir. 2009).
II.
Smith first argues that the district court improperly relied
on ex parte, in camera evidence to grant summary judgment
in favor of defendants. In support, she invokes “ ‘the firmly
held main rule that a court may not dispose of the merits of a
case on the basis of ex parte, in camera submissions.’ ”
Appellant’s Br. 18 (quoting Abourezk v. Reagan, 785 F.2d
1043, 1061 (D.C. Cir. 1986)). For their part, defendants argue
that we need not determine whether the district court properly
relied on ex parte evidence because summary judgment would
have been appropriate even without taking the ex parte
evidence into account. Given that our review is de novo and
that “we can affirm a district court judgment on any basis
supported by the record,” Carney v. American University, 151
F.3d 1090, 1096 (D.C. Cir. 1998), we begin with that
question.
Smith contends that the district court’s grant of summary
judgment was inappropriate because the MPD’s inability to
find records documenting the CI’s participation in the alleged
drug buy creates a genuine issue of material fact as to whether
Ellingsworth lied in his affidavit about the occurrence of the
buy. But even if the absence of these documents gives rise to
an inference in Smith’s favor, see Fed. R. Evid. 803(7);
Stevenson v. Linens of the Week, 688 F.2d 93, 98–99 (D.C.

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Cir. 1982) (explaining “the principle that the absence of an
entry in a business record is probative of the non-occurrence
of the event in question”), this inference is insufficient to
survive summary judgment because other record evidence—
not including the ex parte affidavits—demonstrates that a
controlled drug buy did in fact take place at Smith’s
residence. Specifically, the record contains a photocopy of a
heat seal bag used to contain contraband that states that
Ellingsworth seized “white paper containing white rock” on
July 11, 2007 from “1812 9th St. NW,” Smith’s address. By
corroborating Ellingsworth’s claim that drugs were in fact
recovered from Smith’s property within seventy-two hours of
July 13, 2007, this record negates any inference arising from
the missing CI documents.
Instead of attacking the evidentiary force of the heat seal
bag, Smith points to discrepancies in dates in other MPD
documents in the record. One of these records—a drug
property report with an affixed index card—states that “white
piece of paper containing white” [sic] was “recovered in the
Northwest section of DC” on July 11, 2007 but also indicates
the evidence being “received by” an Officer Castor on July
10. Another document—a page from the MPD Property Log
Book—records Ellingsworth’s recovery of “white paper
containing white rock” on July 7. According to Smith, these
discrepancies render the two documents unreliable. But even
assuming this is true, Smith offers no real response to the key
piece of evidence in the record—the heat seal bag—which
lists July 11 as the relevant date and accurately records
Smith’s address. She suggests that the record could have been
“changed [or] recreated without any difficulty,” Oral Arg.
Rec. 5:54–5:58, but we have made clear that a “bare
allegation” of fabrication “does not suffice to create a genuine
issue as to the authenticity of [a] document.” Ostrzenski v.
Columbia Hospital for Women Foundation, Inc., 158 F.3d

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1289, 1291 (D.C. Cir. 1998). Thus, given the heat seal bag’s
corroboration of the occurrence of a drug buy at Smith’s
property, and given Smith’s failure to proffer evidence
undermining the evidentiary force of this record, Smith’s
reliance on inconsistencies among other police records is
insufficient to identify a material issue of disputed fact.
III.
For the foregoing reasons, we affirm.
So ordered.

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