Man claims officer had affair with his wife, then had him arrested

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A Myrtle Beach man’s lawsuit against a Horry County police officer and state trooper is heavy on soap-opera drama and light on legal substance, a U.S. District Court judge in Florence has ruled.

The plaintiff claimed that his wife was having an affair with the officer and that the two lovers conspired to have him arrested for drunken driving.  His wife had told the officer that her husband was getting drunk at a bar and would eventually be driving home.

The officer followed the plaintiff’s car to a second bar before calling in a state highway trooper, who pulled the man over and charged him with DUI. The charge was later dismissed on a technicality and the plaintiff sued the officer and trooper.

He alleged false arrest, malicious prosecution, due process abuse, civil conspiracy and interference with the right of marriage, association and privacy. The defendants contended that the plaintiff had failed to sufficiently prove his claims. They also invoked 11th Amendment sovereign immunity and qualified immunity.

Judge William O. Bertelsman determined in a Jan. 27 order that the plaintiff’s rights were not violated during the stop or arrest because the trooper had probable cause. He noted that the plaintiff had committed at least one traffic violation prior to the stop and showed signs of drunkenness while interacting with the trooper.

Bertelsman granted the defendants summary judgment and dismissed the suit.

“To the extent that [the plaintiff] argues he was arrested for his association with his wife, and thus his freedom of association was violated, this claim fails because his arrest was supported by probable cause,” he wrote.

The 18-page decision is, Freeland v. Simmons, Lawyers Weekly No. 002-023-12.

‘Out to seduce’

While the plaintiff claimed that his wife and the defendant officer were having an affair, which was the underlying reason for his DUI arrest, the court determined that he had failed to back up his suspicions with evidence.

His assertion was based predominantly on the fact that his wife knew the officer through her job as a nurse at a local hospital, according to his attorney, William Gary White III of Columbia.

“They knew each other and were friends,” he said. “He [the plaintiff] thought the officer was out to seduce his wife and use this as an occasion to get next to her. … I think that was the basis of the officer singling Mr. Freeland out.”

The plaintiff himself later became convinced that his wife did not cheat on him – they remain together – but he still believes that the officer tried to make a move on her and she rebuffed his advances, White said.

“It’s certainly an unusual situation,” he added.

The defendants’ attorney, Evan M. Gessner of Lide & Pauley in Lexington, declined comment.

On a night in late November 2008, Samuel Freeland and his wife, Debi, had an argument at home. After his wife and children went to bed, Freeland decided to go out and meet with some friends at Remedies bar in Myrtle Beach.

When Debi Freeland awoke in the middle of the night and learned that her spouse was at a bar, she contacted Horry County police Cpl. Joseph Dorio and asked him to locate and arrest her husband.

Dorio found Freeland’s vehicle parked outside Remedies and ended up following him to a McDonald’s restaurant and then another bar, the Sun-Up. As he waited for Freeland to exit the bar, Dorio asked S.C. Highway Patrol Trooper Jonathan Simmons to join him and help with the investigation. Unlike Dorio, Simmons, a member of the DUI task force, was fully certified to conduct a breathalyzer test.

Simmons finally stopped Freeland after he left the bar and headed home. He testified that Freeland had failed to use a turn signal as he entered his subdivision, which was confirmed by the trooper’s dash camera. Simmons also said Freeland had swerved out of his lane of traffic before the camera was recording.

During the stop, which occurred in Freeland’s driveway, Simmons said Freeland smelled of alcohol, had glassy and bloodshot eyes, and admitted that he’d had a few drinks. He also made several mistakes during a series of field sobriety tests, including losing his balance and being unable to recite the alphabet from letter D to U.

Freeland was arrested and, after refusing to provide a breath sample, he was charged with DUI. The charge was later dismissed because the dash cam footage given to the prosecutor began after the blue lights on Simmons’ cruiser were activated. The DUI statute required the recording to begin when the lights went on.

In December 2008, Freeland filed a complaint with the professional standards office of the Horry County Police Department alleging that Dorio followed him and had him arrested because he wanted to be with Debi Freeland that evening.

After investigators concluded that Freeland’s complaint was unfounded, he filed a federal suit against Dorio and Simmons in May 2009.

Probable cause exists

Despite the fact that the DUI charge was dismissed, the court determined that Simmons had probable cause to make the traffic stop and arrest based on Freeland’s failure to signal and his signs of apparent intoxication.

“Freeland’s contention that the ultimate dismissal of the charges and the declaration that he was ‘innocent’ negates the probable cause is not persuasive,” Bertelsman wrote. “It is well settled that the ultimate dismissal of charges does not render the original arrest void of probable cause.”

Even if a constitutional violation had occurred, Bertelsman found that Simmons would be entitled to qualified immunity because it was reasonable for him to conclude that he had probable cause based on a review of other DUI arrests under similar facts.

As for Freeland’s claim that he was the victim of a sordid conspiracy, Bertelsman found the allegation to be baseless. Freeland had offered no evidence that his wife was having an affair with Dorio, or that Dorio and Simmons had conspired to arrest him.

“At most, the record reflects that Dorio requested assistance from Simmons and alerted him to a possible DUI in the area,” Bertelsman wrote. “However, ‘without more, parallel conduct does not suggest conspiracy.’”

Opinion Brief

Case name: Freeland v. Simmons

Court: U.S. District Court

Judge: William O. Bertelsman

Attorney for plaintiff: William G. White III (Columbia)

Attorney for defendants: Evan M. Gessner (Lexington)

Issue: Were a plaintiff’s constitutional rights violated by a traffic stop and subsequent arrest for DUI?

Holding: No, because there was probable cause to make the stop.

Potential effect: A constitutional violation claim cannot survive when probable cause exists.