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Banks v. Opat

United States District Court, D. Kansas

November 16, 2018

ALBERT DEWAYNE BANKS, Plaintiff,
v.
STEVEN L. OPAT, et al., Defendants.

          MEMORANDUM AND ORDER

          HOLLY L. TEETER UNITED STATES DISTRICT JUDGE.

         Plaintiff Albert Banks brings this action pro se, [1] asserting claims for violation of state and federal wiretap statutes, violation of the Fourth Amendment, and conspiracy. Doc. 74. Each of the remaining defendants-Defendants Steven Opat, Glen Virden, Timothy Brown, Sprint/Nextel Wireless Telephone Company, and Virgin Mobile USA/Sprint PCS-has moved to dismiss Plaintiff's amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Docs. 79, 83, 86, 101. For the following reasons, the Court dismisses Plaintiff's claims against Defendants.

         I. BACKGROUND

         A. Criminal Investigation

         The following background is based on the record and accepts as true Plaintiff's well-pleaded factual allegations.[2] This case stems from the interception of cellular communications in connection with an investigation-jointly conducted by the Kansas Bureau of Investigation (“KBI”), the Junction City Police Department, the Geary County Sheriff's Office, and the Riley County Police Department-into a suspected narcotics-trafficking conspiracy. Upon application of Defendant Steven Opat (former Geary County District Attorney), in or around March and April 2013, Geary County District Court Judge David Platt entered a series of orders authorizing the interception of Plaintiff's (and his suspected co-conspirators') “wire communications.” Defendant Glen Virden-special agent with the KBI in charge of the investigation-executed the orders, with directives to Defendants Sprint/Nextel Wireless Telephone Company (“Sprint”) and Virgin Mobile USA/Sprint PCS (“Virgin Mobile”) (collectively, “Sprint Defendants”) (and other service providers) to intercept communications transmitted to and from the targeted phones. Virden affixed his signature to the orders, along with Opat and Defendant Timothy Brown (former chief of the Junction City Police Department), among others.

         Pursuant to the orders, the investigating agents intercepted phone calls and text messages from Plaintiff's-and others'-phones. Federal criminal drug trafficking charges were ultimately filed against Plaintiff in this Court.

         B. Motions to Suppress

         1. Text Message Evidence

         In connection with the underlying criminal case, several of Plaintiff's co-defendants moved to suppress text message evidence, arguing that the state court orders, on their face, authorized interception of “wire communications” only and did not permit authorities to intercept “electronic communications” (such as text messages). District Judge Daniel D. Crabtree agreed that the orders authorized interception of “wire communications” only and that text messages constitute “electronic” rather than “wire” communications. Judge Crabtree declined to suppress the text message evidence, however, finding that the investigators' conduct in intercepting the text messages fell within the “good faith” exception to the Fourth Amendment's exclusionary rule. In so holding, Judge Crabtree found that “the issuing judge and executing officers both understood the intended scope of the wiretap authorization, and that the authorization included interception of text messages.” United States v. Banks, 2014 WL 4261344, at *5 (D. Kan. 2014). Judge Crabtree concluded that the officers' reliance on this understanding was “objectively reasonable.” Id.

         2. Extra-Territorial Communications

         Plaintiff's co-defendants also moved to suppress wiretap evidence, arguing that investigators had improperly intercepted communications outside of the territorial jurisdiction of the issuing judge (Judge Platt). During the hearing on the motions to suppress, Judge Crabtree ruled that the orders violated Kansas law to the extent they authorized the interception of communications on phones located outside Judge Platt's judicial district. Judge Crabtree accordingly ordered that the government present evidence regarding the physical location of the tapped phones at the time of the intercepted calls in order to determine which communications, if any, warranted suppression.

         Following the presentation of evidence, Judge Crabtree suppressed all but 7, 000 of the 67, 000 total communications intercepted during the course of the investigation. As to the 7, 000 surviving communications, Judge Crabtree ruled that the government had offered sufficient evidence that the communications were made by phones located inside Judge Platt's territorial jurisdiction. Judge Crabtree ordered the suppression of the extra-territorial intercepted communications. In connection with this decision, although declining to apply the exclusionary rule's good faith exception to evidence collected from wiretaps, Judge Crabtree noted that “one would not expect the officers executing search warrants to have apprehended the subtle, technical jurisdictional defect that forms the basis of the Court's threshold suppression ruling.” United States v. Banks, 2015 WL 2401048, at *3 (D. Kan. 2015), vacated on other grounds by Banks v. United States, 138 S.Ct. 2707 (2018).

         C. Civil Case

         Plaintiff proceeded to file this action for civil relief against various county officials, agencies, agency officials, and service providers, [3] alleging they violated state and federal law and the United States Constitution by intercepting and disclosing his communications (both oral and text) without proper judicial authorization. Docs. 1, 74. In the operative complaint, [4] Plaintiff asserts that Opat, Virden, and Brown knew or had reason to know that the state court orders directed the interception of communications outside of Judge Platt's territorial jurisdiction. Doc. 74 ¶ 11. Plaintiff further alleges that-upon receipt of the order-the Sprint Defendants improperly intercepted and disclosed text messages to the investigating authorities, even though the order did not expressly authorize the interception and disclosure of “electronic communications.” Id. at ¶ 12. Plaintiff claims that Opat, Virden, and Brown knew they illegally obtained the messages and extraterritorial calls, but nonetheless provided them to prosecutors in violation of state and federal law. Id. at ¶¶ 13-15.

         Based on these allegations, Plaintiff asserts claims for: violation of the Kansas wiretap statute, K.S.A. §§ 22-2514, et seq.; violation of the federal Electronic Communications Privacy Act of 1986 (“ECPA”), 18 U.S.C. §§ 2510, et seq.; violation of the Fourth Amendment; and conspiracy. Id. at ¶¶ 21-45. Each of the five remaining defendants- Opat, Virden, Brown, Sprint, and Virgin Mobile-now moves to dismiss Plaintiff's claims. Docs. 79, 83, 86, 101. Plaintiff opposes Defendants' motions. Docs. 92, 93, 94, 103.

         II. STANDARD

         Under Rule 12(b)(6), to survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The plaintiff's claim is facially plausible if he pleads sufficient factual content to allow the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The plausibility standard requires “more than a sheer possibility that a defendant has acted unlawfully” but “is not akin to a ‘probability requirement.'” Id. “Where a complaint pleads facts that are ...


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