(CN) — A North Carolina man who says he was arrested held him on a $5 million bond without evidence after he helped community members file complaints against the local police department brought his arguments before a Fourth Circuit panel on Thursday, looking for another shot at bringing malicious prosecution claims.
Lee Marvin Harris Sr. says he was arrested without probable cause in February 2018 after police officers for the town of Southern Pines, North Carolina, conducted surveillance on his property and observed his son hiding cocaine in an covered, inoperable Cadillac before going to a nearby trap house to drop the drugs.
But the officers had never seen Harris Sr. go near the car had no evidence that he was aware of the drugs, he says.
"They never observed him participate in any sort of transaction related to the vehicle. They had no evidence that he had knowledge of the narcotics. Yet still, the officers charged him with trafficking. And when they did so, they omitted all of this material evidence to the D.A, to the magistrate, to the U.S. attorney,” said Harris Sr.'s attorney, Abraham Rubert-Schewel of the North Carolina firm Tin Fulton Walker & Owen, during Thursday's oral arguments.
“As a result, Lee Harris Sr., a 62-year-old military veteran, former corrections officer, who had never been arrested, was charged with drug trafficking.”
Harris Sr., who is also an ordained minister, was charged with possession of and trafficking cocaine. He spent six months in state custody then four months on house arrest before the U.S. attorney dismissed all charges against him and introduced a memorandum confirming his son was responsible for the narcotics found in the vehicle.
The elder Harris has assisted community members in investigating citizen complaints against law enforcement for almost two decades and has filed multiple formal complaints against Officer Jason Perry, one of the officers who arrested him. Perry and the town of Southern Pines are names as defendants, along with former Police Chief Robert Temme.
Harris Sr. contends that when he was arrested, he was told it was related to an investigation of his son, and that the warrant to search his house was based on weeks of surveillance of Lee Harris Jr.
Officers observed Harris Sr. giving cash to a local drug dealer (and mobile car washer) after he arrived with detailing supplies. Harris Sr. then is seen on video footage leaving with a clean car. “The defendant officers intentionally or recklessly hid material evidence from state and federal decision makers,” Harris Sr. wrote.
Attorney Christian Ferlan of the North Carolina-based Hall Booth Smith represented the defendants during Thursday's hearing. He said there's no evidence that the officers omitted or misrepresented information to secure probable cause, and that they are shielded by qualified immunity.
“The totality of the facts and circumstances in this case, the facts known to the officers at the time they made the arrest, and they testified to grand juries and to the magistrate, would lead any reasonable person to find probable cause to believe the plaintiff committed a crime,” Ferlan said in court.
U.S. Circuit Judge Roger Gregory, a George Bush nominee, pushed back.
“You had all this evidence that that other person may have been involved in drug trafficking. And then you never tell anybody about all of that — you just say, 'We want this man arrested for these drugs, on that basis,'" Gregory said.
The defendants maintain that police officers never saw Lee Harris Jr. retrieve something from under a “tarped item” on his father's property, as his father had claimed — and that officers couldn’t fail to inform the district attorney of observations they never made.
Ferlan argued that Harris Sr. was responsible for the drugs because the keys to the Cadillac were found in his house and he was the property's sole resident.
It didn’t make sense to officers, Ferlan said, for Harris Jr. to plant drugs on his father’s property when he had other, more convenient places to store them.
No drugs nor paraphernalia were found in Harris Sr.’ home, and the car containing the drugs was unlocked.
“You didn’t give a totality,” Judge Gregory said to Ferlan.
“The son was the person who was the subject of the investigation, you had traced him to a trap house, all these things. You’re basing it solely on, 'it was at his daddy’s house in an old car.' I know you dispute it, but that’s the allegation — that you knew that, and didn’t tell the whole story to the people, and that caused him to sit in jail that long. A person who had never been in trouble before, somebody who did help citizens about complaints about the police department before that.”
Rubert-Schewel said Harris Sr. wants a chance to take the case to trial.
A lower court judge ruled that there was probable cause for Harris Sr.’s arrest and that he wasn’t prosecuted maliciously. The judge also questioned if Harris Sr. could have experienced a loss of liberty because he was only detained pre-trial, and wasn’t convicted.
The Fourth Circuit judges on the panel seemed less inclined to rule in favor of the officers.
U.S. Circuit Judges Robert King, a Bill Clinton nominee, and Allison Jones Rushing, who was nominated by Donald Trump, also heard the case.
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