Court: Bondsman's rights not violated

Jun. 3—A federal court has found state and local law enforcement did not violate a local business owner's constitutional rights during a 2018 search.

A separate suit filed against Assistant District Attorney Amanda Worley in February 2021 remains pending in federal court at this time.

James Howe, owner of Big Jim's Bonding on Main St., contends that agents with the Tennessee Department of Revenue and Tennessee Bureau of Investigation and Cumberland County Sheriff's Office investigators violated his Fourth and 14th Amendment rights when they served a search warrant on his business in August 2018.

The suit named Cumberland County, Sheriff Casey Cox, Cumberland County Sheriff's Office Investigators Jason Elmore, Jon Wirey and Jeff Slayton, Tennessee Department of Revenue Special Agent Ronny Howell and Tennessee Bureau of Investigation Special Agent Elizabeth Williams.

Howe claims the search warrant was issued for evidence of failure to pay state bond taxes but was intended by investigators to find evidence of an alleged scheme to trade bonds for sexual favors, something Howe has denied.

The warrant had been issued by Cumberland County Judicial Commissioner Lou Blevins following an affidavit from Howell and Williams alleging nonpayment of state bonding taxes. Blevins issued the warrant, and it was served the same day.

There have been no criminal charges filed in connection with the search warrant.

Howe filed his initial suit in 2019. He claims in the suit against Worley he was unaware of her involvement in the preparation of the application for a warrant until January 2021. Worley has answered that the suit falls outside the one-year statute of limitations and that as an assistant district attorney she has prosecutorial immunity and that she acted in good faith and is also entitled to qualified immunity.

Chief United States District Judge Waverly D. Crenshaw Jr. granted summary judgment in favor of the county and state defendants in the initial lawsuit. Summary judgment calls on courts to decide matters of law when the facts of a case are not in question.

Howe questioned the application for the search warrant, which included statements from individuals who claimed to have traded bonds for drugs and sexual favors, and the disputed return of items seized in the search.

Howe says at least one of the individuals who provided statements to investigators later recanted, though he does not know if that took place before or after the search warrant was served.

The Department of Revenue had been investigating Howe's business for failure to pay quarterly tax bonds from January 2017 through March 2018. Special Agent Brian L. McGhee with the Department of Revenue issued a report in July 2018 that the investigation be closed because the business had reported more bonds than were issued and paid more in bail bond taxes than required. McGhee explained that state law only requires one bail bond tax, $12, be submitted when multiple bail bonds are issued for one defendant during a 30-day period.

However, Howell noted there had not been payment of interest or penalties on those tax payments and the business was delinquent on its 2018 second quarter tax payments, as well.

The warrant authorized a search of business computer hard drives, electronic storage media, records in any form of bonds written and the amount of bond tax collected, and other business financial records. It included the Main St. business, vehicles, out buildings and storage facilities owned, leased or used by Howe or Big Jim's Bonding.

The county personnel on the scene did not keep an inventory or items seized, claiming it was not their warrant and, as such, not their responsibility. Howell made a handwritten log.

Howe said the files taken contained about $8,000 in cash to be used as surety funds. Several weeks later, investigators and agents examined the documents with the assistance of assistant district attorneys. They found no cash in the files.

Howe retrieved the items about two months later but claims the cash and other evidence bags were missing.

Howe claimed the investigators should have conducted a more thorough investigation, that the search warrant was overly broad, that he was required to give officers his cellphone and passcode, and that he and his attorney were ordered to wait outside the business during the search and threatened with arrest if they did not comply.

Crenshaw said that Howe and his attorney were permitted to be inside the business for a period of time. During that time, Howe opened the business safe and answered questions posed by investigators. His attorney Ivy Gardner had said she had "words" with Williams on more than one occasion before before being told to leave the building.

While the search warrant did not specify cellphones should be seized, Crenshaw noted that the warrant did permit the seizure of "any electronic storage media" that could contain records of bonds or tax returns, which Crenshaw said a "reasonable officer" could assume included cellphones.

Crenshaw said that the officers executing the search warrant were acting under state law.

"The only question is whether Plaintiff was deprived of a constitutional right and/or whether Defendants are entitled to qualified immunity," Crenshaw wrote.

Crenshaw said an investigation of "sex for bonds" and an investigation into failure to pay bond taxes were not disconnected.

"The search warrant alleged a violation of Tenn. Code Ann 67-1-1449, asserted that Big Jim's Bonding had not paid the bond tax for the second quarter of 2018, and suggested that Plaintiff may have attempted 'to delay, hamper, hinder, impede, obstruct or thwart' the collection of taxes by exchanging bond (and the tax on those bond) for personal favors, instead of money," Crenshaw wrote.

The warrant was issued by a judicial commissioner who had not been shown to have been biased.

"Indeed, 'the fact that a neutral magistrate has issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner,'" Crenshaw wrote.

Howe said the officers' reliance on the warrant was unreasonable because Howell came into the investigation on the day the warrant was obtained. He was the closest agent available on that day. Howe said Howell didn't review McGhee's July recommendation to close the case on the delinquent bond taxes. But Crenshaw said Howe had not provided evidence to support an agreement with McGhee on payment of the second quarter taxes in 2018 and the case McGhee recommended closing dealt with taxes from January 2017 through March 2018.

Howell also had assistance in drafting the search warrant application from Worley, Assistant District Attorney Philip Hatch, Slayton and Williams. Howe contends that the individuals omitted information that, had it been included, might have resulted in no warrant being issued.

Crenshaw wrote, "The problem with this argument is that the 'sex for bonds' allegations could not have been lost on Judicial Commissioner Blevins."

Howe also said a warrant was unnecessary, as the investigators could have cross-referenced the county arrest records with the department of revenue database. Crenshaw said those records would not show if the bond tax had been collected.

"Could officers have investigated Big Jim Bonding more before seeking a search warrant? Maybe," Crenshaw wrote. "Could the warrant application have included more information or allegations. Likely. Could the warrant that was issued be more focused or better written. Certainly. Would the search warrant fail on a motion to suppress? Perhaps. But none of these are the relevant question.

"Rather, the proper question is whether Plaintiff has pointed to clearly established law that would lead a reasonable officer to conclude that seeking and serving the search warrant on Big Jim's Bonding on August 29, 2018 violated the Constitution. Because Plaintiff has not made that showing, summary judgment is appropriate on his Fourth Amendment claim as to all Defendants."

Howe also claimed a violation of the 14th Amendment's due process clause. Howe has contended that the files seized in the search included $7,950 in surety money that was never returned.

There is no record of this money in the inventory of evidence taken. According to depositions in the case, Crenshaw said Howe's allegation that his property was taken through an "unauthorized action" is "incorrect" following the court's decision that the warrant was valid. The state also offers procedural rules for the return of unlawfully seized property, the judge noted.

"Plaintiff has not shown that this remedy is inadequate," Crenshaw wrote. "Accordingly, summary judgment will be granted on Plaintiff's Fourteenth Amendment procedural due process claim."

Crenshaw also found that "substantive due process" prevents the government from engaging in conduct that "shocks the conscience."

"Defendants' actions, blessed by a judicial commissioner, hardly shocks the conscience," Crenshaw wrote.

With no Fourth or 14th Amendment claims remaining, Crenshaw ruled there could also not be a civil conspiracy claim, nor was there a claim against the county that Howe suffered a loss resulting from the act or failure to act by any deputy who is acting of color of law.

Crenshaw also denied a motion from Howe to set aside a protective order and a motion for leave to file an additional reply to the motions for summary judgment, ruling the motion was moot.

The protective order covered video interviews with women who were part of the investigation. Crenshaw said Howe did not point to anything in the documents that exonerated him. Those records contain private and confidential information about individuals who are not part of the litigation, Crenshaw said.

Howe was initially represented by Gardner and attorney Richard Marshall Brooks of Carthage. The two withdrew from the case in July 2020.

Howe has been represented by attorneys Frank Ross Brazil, Wesley B. Clark and Avery H. Oaks of Brazil Clark, PLLC of Nashville. They did not respond to a request for comment.

Robyn L. Lee and Amanda Shanan Jordan with the Tennessee Attorney General's Office represented Howell and Williams. The Cumberland County defendants were represented by Destin T. Tisher and Robyn Beale Williams of Farrar and Bates, LLP of Nashville.

Heather Mullinix is editor of the Crossville Chronicle. She covers schools and education in Cumberland County. She may be reached at hmullinix@crossville-chronicle.com.