On this set of findings, it would be evident to a reasonable officer that Mr. Akima was, quite apparently, sober.  So a reasonable jury could conclude that Mr. Akima’s arrest was not supported by probable cause and that Officer Peca was not entitled to qualified immunity. 

 

Ryohei Akima v. Caitlyn Peca

No. 22 – 2058

Sixth Circuit Appellate Court

October 26, 2023

Lawful Immigrant and Rookie Police Officer

On Wednesday February 19, 2020, Officer Peca arrested Ryohei Akima in Fowlerville, Michigan.  At the time, Mr. Akima was in the United States on a valid work visa as an employee of a Michigan-based technology company.  Officer Caitlyn Peca was in her first six months as a member of the Fowlerville Police Department.

Traffic Stop for Just One Headlight

Officer Peca pulled Mr. Akima over for driving with an inoperative headlight, and after effecting the stop, approached his vehicle from the driver’s side.  Mr. Akima greeted her with his window down, and she explained that she was stopping him because of a broken headlight.  In an accented voice, Mr. Akima replied, “What?”  The question prompted Officer Peca to reiterate her explanation, this time speaking more slowly and gesturing to the front of the car.  Mr. Akima then opened his door and exited the vehicle to inspect the issue she had flagged.  Seeing the defunct headlight, Mr. Akima expressed comprehension, exclaiming “oh, okay,” before returning to the driver’s seat.  As he reentered the vehicle, Mr. Akima spoke briefly in a foreign language, apparently explaining the situation to a colleague in the passenger’s seat. Officer Peca requested Mr. Akima’s license and registration, continuing in the same methodical tone and using her hands to punctuate her orders.  After a little over a minute, Mr. Akima produced a handful of documents and stated simply, “international driver’s license.”

Mr. Akima Drank ‘Just a Little Bit Out of the Bottle’

As Mr. Akima handed Officer Peca his materials, she asked if he had been drinking.  He acknowledged he had been.  When Officer Peca asked how much, Mr. Akima said, “just a little bit out of the bottle.”  The Officer ended the inquiry there, directing Mr. Akima to look for his insurance and registration while she returned to her vehicle with his paperwork.

Rookie Officer Calls for Back Up

Officer Peca began processing the stop by radioing a colleague, Deputy Sheriff Adam Jaime, for advice.  She said that Mr. Akima could “barely speak English” and was “not going to understand anything”; had given her his Japanese passport and U.S. visa; and had apparently been drinking.  She expressed frustration at the situation throughout the call, repeatedly stating, “I don’t know,” “I don’t know.”  Ultimately, Officer Peca explained that Mr. Akima smelled like vodka, had eyes consistent with alcohol consumption, had been drinking, quote, “from the bottle,” and had acted erratically during their interaction.  The consultation concluded with the officers agreeing that she should run field sobriety tests.

Field Sobriety Tests

Officer Peca put Mr. Akima through a three-part evaluation, starting with an eye exam known as a “horizontal gaze nystagmus” test, a process that “involves moving a stimulus from side to side while the subject follows it with” his eyes.  Green v. Throckmorton, 681 F.3d 853, 857 (6th Cir. 2012).  The administrator watches for “involuntary jerking of the eye,” a reflex that becomes more pronounced with intoxication.  Officer Peca testified in her deposition that Mr. Akima’s performance on this exam was “consistent with an individual being under the influence of alcohol or drugs,” though the video is not clear enough to confirm this result.  Deputy Jaime reviewed the video and later testified that Officer Peca ran the exam improperly.

Next, Officer Peca conducted a walk-and-turn test, instructing Mr. Akima to take nine steps heel-to-toe in one direction before turning and retracing his steps.  The video shows Mr. Akima swaying moderately as he prepares to start the task, holding both arms out for balance as he walks, and tilting sideways unevenly when he makes the turn.  Deputy Jaime testified that each of these behaviors indicated intoxication, and Officer Peca testified that Mr. Akima failed the exam.

Deputy Jaime also testified that Peca should have asked Mr. Akima if he had any medical conditions or disabilities that might affect his performance on the drill, and that language barriers could affect the outcome of the test.

Last, Officer Peca administered a one-legged-stand test, instructing Mr. Akima to stand on one foot while holding his other foot six inches above the ground.  Mr. Akima held the position with relative stability, though with some wobbling, for around twenty-five seconds before teetering sideways in a near fall.  Officer Peca testified that Mr. Akima’s performance was “consistent with him not completing that task.”  Deputy Jaime agreed, but also acknowledged that a subject’s medical conditions, disabilities, and communication difficulties may affect the results of the one-legged-stand test, just as they may interfere with the walk-and-turn test.

One Digit Means a Lot When Reading a BAC

Determining that Mr. Akima’s performance on these three initial tests suggested intoxication, Peca conducted a preliminary breathalyzer test.  She instructed Mr. Akima to blow into the breathalyzer, which required four attempts before Mr. Akima registered a reading.  Officer Peca interpreted the test as showing an alcohol content of 0.22, well above Michigan’s legal limit of 0.08.  In reality, however, the breathalyzer had reported 0.022, well under the legal limit.  Upon making the mistaken reading, the Officer placed Mr. Akima under arrest for operating while intoxicated and detained him in the back of her police unit.

What Every Rookie Officer Admits at Some Point

Officer Peca then took her place in the front of her vehicle to process the arrest, and Deputy Jaime soon joined her.  After several minutes of reviewing Mr. Akima’s information, the officers reengaged with him, asking how long he would be in the country and whether he had any form of U.S. identification.  Mr. Akima explained the details of his visa, that he had an international, not a U.S., driver’s license, and that the license should be in his vehicle but that he had not had time to locate it at the beginning of the encounter.  Mr. Akima then sought permission to retrieve his international license from his car, but the officers said it was now “irrelevant.”  It is undisputed that Mr. Akima’s international license was, in fact, in his vehicle during the arrest. Officer Peca spent the next half-hour on paperwork, requesting a warrant to draw Mr. Akima’s blood.  During that time, she made several comments about her ability to complete the arrest.  At the beginning, she chastised herself for being “so unprepared.”  Later, she told a colleague over the radio, “I have no idea what I’m doing.”  At the end, she thanked the same colleague for his help, reiterating, “I literally had no idea what I was doing.”

Blood Draw Confirms Low BAC

Officer Peca eventually completed the paperwork, obtained a search warrant, and transported Mr. Akima to the hospital for a blood draw before booking him at the county jail.  The blood draw took place around an hour-and-a-half after the initial stop.  When the results came back a week later, they revealed a blood alcohol content of 0.014, which, like Mr. Akima’s breathalyzer score, falls well below Michigan’s legal limit.  Soon after, the charges against Mr. Akima for operating while intoxicated were dismissed.

Mr. Akima is Deported and Files a Lawsuit

Mr. Akima sued Officer Peca for false arrest, false imprisonment, and intentional infliction of emotional distress in the U.S. District Court for the Eastern District of Michigan.  He alleged that, as a result of the arrest and notwithstanding the ultimate dismissal of charges against him, his U.S. visa was revoked and he was deported to Japan.  According to the complaint, Mr. Akima was required to complete substance abuse courses in Japan before he could renew his visa, and the process interrupted his ability to work in the United States for several months.

Qualified Immunity is Denied

Seeking compensation for this ordeal, Mr. Akima filed a complaint on January 11, 2021.  Officer Peca moved for judgment on the pleadings the next month, asserting Qualified Immunity.  Several legal actions followed that delayed the District Court’s decision but ultimately, Officer Peca again moved for summary judgment with her motion to dismiss still outstanding.  The district court issued a single opinion ruling on both motions, denying Officer Peca’s motion to dismiss in full and granting in part and denying in part her motion for summary judgment.  The court permitted Mr. Akima’s constitutional claims for false arrest and false imprisonment to proceed, but dismissed the state law claim for intentional infliction of emotional distress.  Officer Peca timely noted this appeal.

Qualified Immunity Analysis

Qualified immunity shields government officials from suit where “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).  An official’s qualified immunity defense is analyzed under a two-prong framework, asking whether the official violated a constitutional right, and, if so, whether the right was “clearly established at the time.”  We may exercise our “sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.”  Pearson v. Callahan, 555 U.S. 223, 236 (2009).

Court Determines Officer Peca Did Not Establish Probable Cause

For the constitutional violation prong, we determine whether the plaintiff has established a constitutional deprivation—here, regarding false arrest and false imprisonment in violation of the Fourth Amendment.  An officer commits these constitutional violations when the officer effects a warrantless arrest without probable cause.  Ouza v. City of Dearborn Heights, 969 F.3d 265, 279 (6th Cir. 2020).

How the Court Determines Probable Cause

Probable cause exists if a person of “reasonable caution,” considering “the facts and circumstances within” the officer’s knowledge, would “believe that an offense had been, was being, or was about to be committed.”  Hartman v. Thompson, 931 F.3d 471, 481 (6th Cir. 2019) (quoting Fox v. DeSoto, 489 F.3d 227, 236 (6th. Cir. 2007)).

Totality of the Circumstances

We “consider the totality of the circumstances” in determining whether an officer had probable cause, looking to both “the evidence of guilt” and the “exculpatory evidence” available to the officer at the time.  Ouza, 969 F.3d at 279.

Clearly Established Element for Qualified Immunity

For the clearly established prong, we ask if the officer violated clearly established law, whether, at the time of their conduct, “the law was ‘sufficiently clear’ that every ‘reasonable official would’” have understood they were violating a constitutional or statutory right.  Wesby, 583 U.S. at 63 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).  A rule emerges as “sufficiently clear” when “controlling authority” or a “robust ‘consensus of cases of persuasive authority’” dictates the outcome of a case.  Id. (quoting al-Kidd, 563 U.S. at 741-42).

Precedent need not be “directly on point,” but there must be prior cases involving sufficiently similar circumstances to put the legal question “beyond debate.” (quoting al-Kidd, 563 U.S. at 741).  The specificity of these circumstances is particularly important in Fourth Amendment cases, where the outcome “turns on the assessment of probabilities in particular factual contexts” that cannot be “reduced to a neat set of legal rules.”  (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)).  In the end, qualified immunity is a “legal question,” but where it “turns upon which version of the facts one accepts, the jury, not the judge, must determine liability.”  Green v. Throckmorton, 681 F.3d 853, 864 (6th Cir. 2012) (quoting McKenna v. Edgell, 617 F.3d 432, 437 (6th Cir. 2010)).

Officer Argues She Did Establish Probable Cause

In this appeal, Officer Peca maintains she did not violate Mr. Akima’s constitutional rights because she had probable cause to arrest him on two grounds:  driving without a license and driving while intoxicated.  Alternatively, she contends that, even if she lacked probable cause, the arrest did not violate clearly established law.

[Note: Appeal for Driving Without a Valid License is not evaluated in this article.]

Michigan Driving While Intoxicated Statute

As an alternative basis for probable cause, Officer Peca invokes Michigan’s “operating while intoxicated” law, the anchor of the state’s statutory scheme restricting drinking and driving, which proceeds in three parts.  Part one prohibits “operating while intoxicated,” defined as driving

(1) “under the influence of” an “intoxicating substance,” or

(2) with a bodily “alcohol content of 0.08” or more.  Mich. Comp. Laws §257.625(1).

Part two, a complementary regulation, bars driving while “visibly impaired,” that is, with less apparent ability than “an ordinary, careful and prudent driver.”  People v. Lambert, 235 N.W.2d 338, 342 (Mich. 1975); Mich. Comp. Laws § 257.625(3).

And part three, a zero-tolerance law, prohibits underage drivers from taking the wheel with “any bodily alcohol content,” a threshold calibrated at an “alcohol content of 0.02 grams or more.”  Mich. Comp. Laws § 257.625(6)(a).  Officer Peca contends she had probable cause to arrest Mr. Akima under the first provision:  for “operating while intoxicated.”

Officer Identifies Four Elements that Established Probable Cause for Impaired Driving Arrest

Officer Peca contends that four facts provide probable cause for Mr. Akima’s arrest:  Mr. Akima

(1) “jump[ed] out of the car” to check his headlights at the beginning of the encounter;

(2) admitted “he had been drinking”;

(3) “had issues with his balance” during field sobriety tests; and

(4) produced what she wrongly but, she maintains, reasonably, believed was a blood-alcohol result of 0.22 on the breathalyzer test.

The first indicator of probable cause Officer Peca offers is Mr. Akima’s emergence from his vehicle at the outset of the encounter, a fact that is confirmed by the video and undisputed.  Peca suggests that this behavior was erratic and that it signaled possible intoxication.  Mr. Akima’s exit from the car may reasonably have surprised the Officer, but it is hardly a hallmark of inebriation, particularly when coupled with Mr. Akima’s measured gait as he circled the vehicle for the purpose of checking his headlight and the cultural disconnect Officer Peca recognized was at play.  So though this conduct, if corroborated by other inculpatory evidence, might play a role in determining probable cause in some situations, its value on this record is marginal.

The same is true of Mr. Akima’s statement that he had been drinking “just a little bit out of the bottle.”  A driver’s disclosure of drinking may, along with other inculpatory factors, support probable cause, and the video evidence and transcript corroborate the fact of Mr. Akima’s statement.  Drinking “a little bit,” however, is not drinking to excess.  To the contrary, here it is consistent with Mr. Akima’s breathalyzer result that established his alcohol consumption was minimal.  In context, Mr. Akima’s statement does little to propel us toward finding probable cause.

The most potentially inculpatory fact Officer Peca raises is Mr. Akima’s performance on the field sobriety tests.  As Deputy Jaime described it, Mr. Akima completed the walk-and-turn test as if “on a tightrope,” arms extended to each side for stability.  In attempting to maintain his balance, Deputy Jaime observed, Mr. Akima raised his hands “over six inches,” which Deputy Jaime considered a “clue” suggesting intoxication.  Then, on the one-legged-stand test, Mr. Akima teetered over, nearly falling to the ground.  According to the Deputy, this was “another clue.”

Deputy Jaime also testified, however, that Officer Peca administered the tests incorrectly, and, critically, in ways that may have affected the outcome.  The credibility of the results was also undermined by Officer Peca’s remarks throughout the course of the arrest acknowledging she had “no idea” what she was doing.  And Officer Peca’s failure to correctly conduct the breathalyzer could reasonably shake a jury’s confidence in her ability to perform the other assessments.  Given these serious problems with the integrity of the evaluation, a jury could reasonably opt to give little weight to its results.

Finally, the breathalyzer.  The parties agree that Mr. Akima blew a 0.02, but that Officer Peca misinterpreted the result as 0.22.  In determining probable cause, only the accurate result—the result a reasonable officer would have observed—matters:  Officer Peca’s subjective view is “irrelevant.” Michigan’s levelling of the zero-tolerance law at 0.02, combined with the already significant gulf between 0.02 and 0.08, gives Mr. Akima’s breathalyzer result substantial exculpatory value.

Was Officer Peca’s Misread of the BAC a Reasonable Mistake?

Officer Peca does not dispute that properly reading the breathalyzer would have helped clear Mr. Akima of an operating while intoxicated charge under these circumstances, but still maintains that her misreading was a reasonable one.  An arrest based on a reasonable mistake of fact does not violate the Fourth Amendment. Heien v. North Carolina, 574 U.S. 54, 61 (2014). But the U.S. Supreme Court has emphasized that such “mistakes must be those of reasonable” officers.  A breathalyzer, however, invites none of the hazy judgment calls involved in matching a suspect to a description or a resident to an apartment.  It yields a single, objective reading that every reasonable officer should be able to ascertain.  A jury could properly conclude that Officer Peca’s failure to do so was unreasonable.

Court Evaluates Mr. Akima’s Exculpatory Evidence

To complete the universe of facts, we must also account for the “exculpatory evidence” a reasonable officer would have discerned.  In this case, the video shows that throughout most of the encounter Mr. Akima appeared “completely lucid and rational.”

There is no evidence that Mr. Akima drove erratically, slurred his speech, or appeared out of control.  A reasonable officer would have considered the significance of these exculpatory factors in addition to the evidence Officer Peca focuses on.

Court Concludes Officer Peca Failed to Establish Probable Cause and Mr. Akima’s Suit Can Proceed

Putting all this together, a reasonable jury could find the facts as follows.  While driving without any apparent difficulty, Mr. Akima was stopped for a broken headlight.  Early on in the stop, perhaps due to evident communication barriers, Mr. Akima took the atypical step of exiting his vehicle.  Thereafter, Mr. Akima acknowledged he had been drinking “just a little bit,” registered 0.02 on a breathalyzer, exhibited a temperate and responsive demeanor, and maintained a steady speech and gait.  He also completed three field sobriety tests, which a jury could determine he performed adequately, or which it could choose to assign little weight given Officer Peca’s errors in administering them.

On this set of findings, it would be evident to a reasonable officer that Mr. Akima was, quite apparently, sober.  So a reasonable jury could conclude that Mr. Akima’s arrest was not supported by probable cause and that Officer Peca was not entitled to qualified immunity.  On this record, the district court properly denied Officer Peca’s motion to dismiss and motion for summary judgment.

Holding

For the reasons set forth above, we AFFIRM the judgment of the district court.

Information for this article was obtained from Ryohei Akima v. Caitlyn Peca, No. 22 – 2058.

Ryohei Akima v. Caitlyn Peca, No. 22 – 2058 was issued by the Sixth Circuit Appellate Court on October 26, 2023 and is binding in Kentucky, Michigan, Ohio and Tennessee.

Lessons Learned:

  1. I have no idea what I’m Doing – Every police officer who is new finds herself in Officer Caitlyn Peca’s position, on a traffic stop or call for service where following policy and the law are unclear. During her radio transmission Officer Peca explicitly stated, “I have no idea what I’m doing.”.  Officer Peca did call for help but ultimately there were a series of mistakes that led to this actionable lawsuit.  Since Officer Peca was only in her sixth month of work, how many impaired drivers had she arrested during her Field Training?  This will be a question if the case proceeds to depositions and trial.
  2. Misreading a BAC Level is Objectively Unreasonable – Another challenging moment in this impaired driving investigation is the misread of the BAC level. Michigan’s BAC limit, like many states is 0.08.  Akima’s BAC was 0.022. However Officer Peca read that as 0.22 or over the twice the legal limit.  Because the BAC was objective and not based a subjective analysis such as interpreting field sobriety tests, this alone is destructive to a Qualified Immunity claim.  Qualified Immunity can, at times, permit officers to make reasonable mistakes, underscored by the U.S. Supreme Court in Heien v. North Carolina, 574 U.S. 54, 61 (2014).  However, the objectivity of a BAC reading dissolves the reasonable mistake and hence Officer Peca’s Qualified Immunity claim.
  3. FTO Programs – All Field Training Officer [FTO] programs should include robust training and documentation of fundamental arrests that include impaired driving. No FTO program can include training on every situation that a law enforcement officer can encounter.  However, conducting FST’s, reading BAC levels from a machine and knowing the state law on legal limits is a fundamental that should be understood by all rookies and seasoned officers.

Does your agency train on Impaired Driving?

Contact me at https://www.objectivelyreasonable.com/contact/

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.