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IEric B.

Swartz, ISB #6396


Joy M. Vega, ISB #7887
Regan Charlton, ISB #9235
JONES & SWARTZ PLLC
1673 W. Shoreline Drive, Suite 200 [83702]
P. O. Box 7808
Boise, ID 83707-7808
Telephone: (208) 489-8989
Facsimile: (208) 489-8988
Email: eric@jonesandswartzlaw.com
joy@jonesandswartzlaw.com
regan@jonesandswartzlaw.com
Attorneys for Plaintiff Jarrod E. Bush

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF IDAHO

JARROD E. BUSH,
Case No. 1:14-cv-470
Plaintiff,
vs.

COMPLAINT AND
DEMAND FOR JURY TRIAL

IDAHO STATE POLICE; TROOPER JUSTIN


KLITCH, in his individual and official capacities;
DETECTIVE COREY GATES, in his individual
and official capacities; KAREN MONTGOMERY,
in her individual and professional capacities; and
JOHN DOES IV, unknown members of law
enforcement, in their individual and official
capacities,
Defendants.

COMES NOW the Plaintiff, Jarrod E. Bush, by and though his counsel of record, Jones
& Swartz PLLC, and for his Complaint against the Defendants, complains and avers as follows:
PRELIMINARY STATEMENT
1.

Plaintiff Jarrod E. Bush (Plaintiff or Mr. Bush) brings claims under 42 U.S.C.

COMPLAINT AND DEMAND FOR JURY TRIAL 1

1983 and seeks damages against Defendants Idaho State Police, Idaho State Police Trooper
Justin Klitch, Idaho State Police Detective Corey Gates, and Idaho State Police Investigative Aid
Karen Montgomery (collectively Defendants) for committing acts under the color of law
which deprived Mr. Bush of protected rights, privileges, and immunities secured by the
Constitution or laws of the United States.
2.

Defendants deprived Mr. Bush of his personal property without due process of

law, as an excessive fine, and for public use without just compensation.
JURISDICTION AND VENUE
3.

This action is brought pursuant to 42 U.S.C. 1983, which furnishes a private

cause of action for violations of federal rights committed under the color of law and the Fifth,
Eighth, and Fourteenth Amendments to the Constitution of the United States of America.
4.

The jurisdiction of this Court is invoked pursuant to 28 U.S.C. 1331 and

1343(a)(3) and (4) as certain of the controversies arise under the Constitution and laws of the
United States and are brought for the purpose of redressing the violation of Plaintiffs federally
protected civil rights.
5.

Venue is proper in this judicial district pursuant to 28 U.S.C. 1391(b).


PARTIES

6.

Plaintiff Jarrod E. Bush is an individual with his principal place of residence in

the state of Idaho.


7.

Defendant Idaho State Police (ISP) is a political subdivision of the State of

8.

At all times relevant hereto, Defendant Trooper Justin Klitch (Trooper Klitch)

Idaho.

was an Idaho State Police Trooper. Trooper Klitch is named as a Defendant in his individual and

COMPLAINT AND DEMAND FOR JURY TRIAL 2

official capacities.
9.

At all times relevant hereto, Defendant Detective Corey Gates (Detective

Gates) was an Idaho State Police Detective. Detective Gates is named as a Defendant in his
individual and official capacities.
10.

At all times relevant hereto, Defendant Karen Montgomery (Ms. Montgomery)

was an Idaho State Police Investigative Aid. Ms. Montgomery is named as a Defendant in her
individual and professional capacities.
11.

Defendants John Does IV are unknown members of an Idaho law enforcement

agency and assisted Trooper Klitch, Detective Gates, and Ms. Montgomery in the illegal
deprivation of property described herein.
FACTUAL ALLEGATIONS
12.

Plaintiff repeats and realleges each and every allegation in the preceding

paragraphs and by reference incorporates each paragraph herein.


13.

On or about February 7, 2014, at approximately 8:55 a.m., Trooper Klitch

executed a traffic stop of a silver Toyota 4-Runner with California plates, driven by Gabriel
Owen (Mr. Owen) in Payette County, Idaho.
14.

Trooper Klitch subsequently arrested Mr. Owen, charging him with Trafficking in

Marijuana.
15.

Detective Gates and ISP Detective Deshan Cabaong (Detective Cabaong)

interrogated Mr. Owen and reviewed the contents of his cellular phone at the Payette County
Jail.
16.

Detective Gates and Detective Cabaong located text correspondence between

Mr. Owen and an Idaho phone number belonging to Mr. Bush.


17.

That text correspondence indicated only that Mr. Bush had knowledge that

COMPLAINT AND DEMAND FOR JURY TRIAL 3

Mr. Owen was driving through Idaho.


18.

Based on that text correspondence, Trooper Klitch and Detective Gates texted

Mr. Bush from Detective Gates ISP-issued cellular phone at approximately 2:51 p.m.,
purporting to be Mr. Owen and requesting Mr. Bushs assistance because Owen had been
involved in a car accident and needed a ride.
19.

Trooper Klitch and Detective Gates texted Mr. Bush that he (Owen) would be

waiting at the Chevron Service Station located at 5950 E. Franklin Road in Nampa, Idaho.
20.

Mr. Bush responded that he would be there in 25 minutes and that he would be

driving a red Saturn Ion.


21.

Upon information and belief, Mr. Owen was not at the Chevron Service Station

when Mr. Bush arrived, or at any time thereafter.


22.

Upon information and belief, none of Mr. Owens property was at the Chevron

Service Station when Mr. Bush arrived, or at any time thereafter.


23.

At approximately 3:44 p.m., Mr. Bush arrived at the Chevron Service Station in

his red Saturn Ion with the sole intention of assisting Mr. Owen by giving him a ride.
24.

At approximately 3:45 p.m., Detective Gates, ISP Detective Hopkins, and ISP

Detective Sergeant Christensen (collectively Detectives) made contact with Mr. Bush.
25.

The Detectives told Mr. Bush that they knew Mr. Owen was planning on selling

marijuana to Mr. Bush. They told Mr. Bush that it was a done deal, and that there was enough
evidence to charge Mr. Bush with Conspiracy to Traffic in Marijuana.
26.

At all times relevant hereto, Mr. Bush maintained that Mr. Owen had said nothing

to him about marijuana. At all times relevant hereto, Mr. Bush maintained that he had driven to
the Chevron for the sole purpose of assisting Mr. Owen with a ride because he thought

COMPLAINT AND DEMAND FOR JURY TRIAL 4

Mr. Owen had been in a car accident and needed help.


27.

The Detectives asked Mr. Bush whether he had any controlled substances or drug

paraphernalia inside his vehicle. Mr. Bush responded that he did not.
28.

The Detectives repeatedly asked whether they could look inside Mr. Bushs

vehicle.
29.

Mr. Bush repeatedly refused to allow a search of his vehicle.

30.

The Detectives and/or Trooper Klitch told Mr. Bush that a drug detection K-9

would be called to come and walk around the vehicle and that the K-9 would alert on cash.
Mr. Bush was told that the law enforcement officers would conduct the search once the K-9 unit
arrived.
31.

Mr. Bush was repeatedly asked how much cash he had in the vehicle.

32.

Mr. Bush was told that law enforcement personnel were en route to search his

residence.
33.

Mr. Bush repeatedly questioned the grounds for any search.

34.

At approximately 4:04 p.m., Mr. Bush was told that Mr. Owen had, in fact, not

wrecked his car.


35.

At approximately 4:25 p.m., Canyon County K-9 Sheriff Deputy David Minshall

(Deputy Minshall) arrived at the scene with his drug detection dog.
36.

After performing a free-air sniff around the exterior of Mr. Bushs vehicle,

Deputy Minshall advised Trooper Klitch that the dog had alerted to Mr. Bushs vehicle. Deputy
Minshall did not specify which part of Mr. Bushs vehicle the dog allegedly alerted to.
37.

At approximately 4:30 p.m., Trooper Klitch conducted a search of Mr. Bushs

vehicle.

COMPLAINT AND DEMAND FOR JURY TRIAL 5

38.

There were no controlled substances found in the vehicle.

39.

Nothing illegal was found during the search of Mr. Bushs vehicle.

40.

Trooper Klitch located $4,260.00 U.S. Currency inside a green bag on the front

passenger seat of Plaintiffs vehicle, a black LG Nexus cellular phone, and bank receipts. All of
these items were Mr. Bushs property. All of these items were seized by Trooper Klitch.
41.

At all times relevant hereto, Mr. Bush denied that he knew Mr. Owen was

transporting marijuana and denied that he planned to purchase marijuana from Mr. Owen.
42.

Trooper Klitch detained and searched Mr. Bush and thereafter transported him to

the ISP District 3 Office, where the Detectives interrogated Mr. Bush.
43.

Upon information and belief, Mr. Bush was not arrested.

44.

However, Detective Cabaong or Detective Hopkins read Mr. Bush his Miranda

rights. Mr. Bush refused to speak to the Detectives without an attorney present.
45.

At approximately 4:55 p.m. the interrogation was terminated and Mr. Bush was

released.
46.

Mr. Bush was not charged with, or prosecuted for, committing any crime.

47.

The $4,260.00 U.S. Currency and black LG Nexus cellular phone, both belonging

to Mr. Bush, were turned over to ISP Evidence.


48.

Upon information and belief, the green bag and bank receipts, also belonging to

Mr. Bush, were turned over to ISP Evidence.


49.

On or about March 11, 2014, Ms. Montgomery took possession of Mr. Bushs LG

Nexus cellular phone.

Ms. Montgomery exported data from Mr. Bushs phone to a CD.

Ms. Montgomery then gave that data to Detective Gates, which he submitted into ISP District 3
Office Evidence.

COMPLAINT AND DEMAND FOR JURY TRIAL 6

50.

Upon information and belief, the cellular phone was either returned to ISP

Evidence, or is still in the possession and custody of Ms. Montgomery.


51.

No legal authority existed for Ms. Montgomery to take possession of Mr. Bushs

cellular phone or the data saved to it.


52.

Upon information and belief, no search warrant was issued authorizing

Defendants search of the data on Mr. Bushs cellular phone.


53.

On or about August 28, 2014, the ISP case against Mr. Bush was closed. No

charges were pursued against Mr. Bush.


54.

The ISP Closing Report, prepared by Trooper Klitch on August 28, 2014,

specifically indicated that: Cash seizure being processed. That Report was approved by
Officer No. 2904 on September 4, 2014.
55.

As of the date of this Complaint, Defendants have not initiated any forfeiture

action against Mr. Bushs property, including the $4,260.00 U.S. Currency seized by Trooper
Klitch. Nor has the Nampa City Prosecutors Office or any other prosecutor initiated a civil
forfeiture action related to Mr. Bushs property.
56.

As of the date of this Complaint, Mr. Bush has not received any notification

regarding the status of his property taken by Defendants on February 7, 2014.


57.

Mr. Bush has made repeated calls to ISP for the purpose of ascertaining the

whereabouts and return of his property.


58.

As of the date of this Complaint, nearly nine months have passed since

Defendants seized Mr. Bushs property. Mr. Bushs property has not been returned to his
possession.
59.

As of the date of this Complaint, Mr. Bush has not been provided with notice or a

COMPLAINT AND DEMAND FOR JURY TRIAL 7

hearing in connection with the deprivation of his property.


60.

Neither Trooper Klitch, Detective Gates, Ms. Montgomery, nor law enforcement

personnel John Does IV had the legal authority or legal justification to permanently deprive
Mr. Bush of his property without notice and an opportunity to be heard, and/or as a fine for
wrongdoing, and/or without just compensation.
61.

ISP provided Trooper Klitch, Detective Gates, Ms. Montgomery, and/or law

enforcement personnel John Does IV with the means and facilities to permanently deprive
Mr. Bush of his property in violation of Mr. Bushs constitutional rights.
COUNT I
DEPRIVATION OF PERSONAL PROPERTY WITHOUT DUE PROCESS
IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION
62.

Plaintiff realleges and incorporates all of the foregoing allegations as if fully set

forth herein.
63.

Trooper Klitch acted or purported to act in the performance of his official duties

as an employee of, and under the official policy or custom of, the Idaho State Police.
64.

Detective Gates acted or purported to act in the performance of his official duties

as an employee of, and under the official policy or custom of, the Idaho State Police.
65.

Ms. Montgomery acted or purported to act in the performance of her official

duties as an employee of, and under the official policy or custom of, the Idaho State Police.
66.

Law enforcement personnel John Does IV acted or purported to act in the

performance of their official duties as employees of, and under the official policy or custom of,
their respective law enforcement agency.
67.

The Due Process Clauses of the Fifth and Fourteenth Amendments prohibit

Defendants from depriving Mr. Bush of his property without due process of law.

COMPLAINT AND DEMAND FOR JURY TRIAL 8

68.

Due process of law requires that a person who has been deprived of property by

parties acting under the color of law be heard at a meaningful time and in a meaningful manner.
69.

Mr. Bush has a protected property right in his $4,260.00 U.S. Currency, the black

LG Nexus cellular phone, the green bag, and the bank receipts.
70.

Without legal authority, Defendants took possession and control of Mr. Bushs

property during the course of the stop and detention executed on February 7, 2014. None of the
property has been returned to Mr. Bush.
71.

No civil forfeiture action has been initiated by or on behalf of Defendants, as

required by law.
72.

Defendants permanently deprived Mr. Bush of his black LG Nexus cellular phone

without due process of law.


73.

Defendants permanently deprived Mr. Bush of his $4,260.00 in U.S. Currency,

green bag, and bank receipts without due process of law.


74.

These acts by Defendants meaningfully interfered with Mr. Bushs right to

possess his property.


75.

Defendants failed to notify Mr. Bush that his property was subject to any

permanent seizure or civil forfeiture.


76.

At all times relevant hereto, Mr. Bush had a clearly established right to a hearing

or a meaningful opportunity to be heard either prior to, or promptly after, Defendants deprived
Mr. Bush of his property.
77.

The acts by Defendants of permanently depriving Mr. Bush of his property

without notice violated his procedural due process protections because those acts meaningfully
interfered with Mr. Bushs right to be heard regarding the permanent deprivation of his property.

COMPLAINT AND DEMAND FOR JURY TRIAL 9

78.

Mr. Bush does not have an adequate post-deprivation state remedy to redress the

Defendants actions in violating his property rights.


79.

At all times relevant hereto, the rights held by Mr. Bush to in his property were

clearly established.
80.

As a direct and proximate result of Defendants permanently depriving Mr. Bush

of his property without due process of law, Mr. Bush suffered general and special damages as
alleged in this Complaint and is entitled to relief under 42 U.S.C. 1983.
81.

The conduct of Defendants was intentional and deliberately indifferent to

Mr. Bushs constitutionally protected rights, it was willful, malicious, oppressive and/or reckless,
and was of such a nature that punitive damages should be imposed in an amount commensurate
with the wrongful acts alleged herein.
COUNT II
PROHIBITED EXCESSIVE FINE
IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION
82.

Plaintiff realleges and incorporates all of the foregoing allegations as if fully set

forth herein.
83.

Trooper Klitch acted or purported to act in the performance of his official duties

as an employee of, and under the official policy or custom of, the Idaho State Police.
84.

Detective Gates acted or purported to act in the performance of his official duties

as an employee of, and under the official policy or custom of, the Idaho State Police.
85.

Ms. Montgomery acted or purported to act in the performance of her official

duties as an employee of, and under the official policy or custom of, the Idaho State Police.
86.

Law enforcement personnel John Does IV acted or purported to act in the

performance of their official duties as employees of, and under the official policy or custom of,

COMPLAINT AND DEMAND FOR JURY TRIAL 10

their respective law enforcement agency.


87.

The Excessive Fines Clause of the Eighth Amendment limits Defendants power

to extract payments, whether in cash or in kind, as punishment for an offense, whether by


criminal or civil forfeiture proceedings.
88.

At all times relevant hereto, Mr. Bush was not charged with, or prosecuted for,

committing a criminal offense.


89.

At all times relevant hereto, there was nothing even remotely criminal in

Mr. Bush possessing U.S. Currency, a cellular phone, a bag and bank receipts.
90.

Upon information and belief, neither Mr. Owen nor his property were at the

Chevron Service Station when Mr. Bushs vehicle was searched and his property seized.
91.

By permanently depriving Mr. Bush of the property described herein, Defendants

extracted a payment from Mr. Bush as punishment for some unidentified offense.
92.

Upon information and belief, Defendants seized Mr. Bushs property as

punishment for knowing Mr. Owen and/or to deter Mr. Bush from further associations with
Mr. Owen.
93.

Upon seizing Mr. Bushs property, Defendants did not intend to return Mr. Bushs

property to his possession, and the deprivation was therefore permanent.


94.

The acts by Defendants of seizing and holding Mr. Bushs property as punishment

and a deterrent where he had committed no offense constitute a penalty that is grossly
disproportionate to the gravity of any alleged offense in violation of his constitutional right to be
free from excessive fines.
95.

These acts by Defendants permanently deprived Mr. Bush of the use of his

property.

COMPLAINT AND DEMAND FOR JURY TRIAL 11

96.

At all times relevant hereto, the right held by Mr. Bush to be free from excessive

fines was clearly established.


97.

As a direct and proximate result of Defendants permanently depriving Mr. Bush

of his property as punishment and as a deterrent where Mr. Bush committed no offense,
Mr. Bush suffered general and special damages as alleged in this Complaint and is entitled to
relief under 42 U.S.C. 1983.
98.

The conduct of Defendants was intentional and deliberately indifferent to

Mr. Bushs constitutionally protected rights, it was willful, malicious, oppressive and/or reckless,
and was of such a nature that punitive damages should be imposed in an amount commensurate
with the wrongful acts alleged herein.
COUNT III
DEPRIVATION OF PROPERTY WITHOUT COMPENSATION
IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION
99.

Plaintiff realleges and incorporates all of the foregoing allegations as if fully set

forth herein.
100.

Trooper Klitch acted or purported to act in the performance of his official duties

as an employee of, and under the official policy or custom of, the Idaho State Police.
101.

Detective Gates acted or purported to act in the performance of his official duties

as an employee of, and under the official policy or custom of, the Idaho State Police.
102.

Ms. Montgomery acted or purported to act in the performance of her official

duties as an employee of, and under the official policy or custom of, the Idaho State Police.
103.

Law enforcement personnel John Does IV acted or purported to act in the

performance of their official duties as employees of, and under the official policy or custom of,
their respective law enforcement agency.

COMPLAINT AND DEMAND FOR JURY TRIAL 12

104.

Mr. Bush has a constitutionally protected property interest in the $4,260.00 U.S.

Currency, the black LG Nexus cellular phone, the green bag, and the bank receipts.
105.

At all times relevant hereto, Mr. Bushs property constituted compensable

property.
106.

No civil forfeiture action has been initiated by or on behalf of Defendants.

107.

Defendants have permanently deprived Mr. Bush of his black LG Nexus cellular

phone without due process of law or just compensation.


108.

Defendants have permanently deprived Mr. Bush of his $4,260.00 in U.S.

Currency, green bag, and bank receipts without due process of law or just compensation.
109.

As described herein, the Defendants definitive acts of seizing and withholding

Mr. Bushs personal property have permanently deprived Mr. Bush of all use of his personal
property without just compensation.
110.

Upon information and belief, some or all of the property seized from Mr. Bush

was used to the benefit of the ISP and/or the State of Idaho.
111.

No authority relieves Defendants from their constitutional obligation to pay just

compensation for the value of Mr. Bushs property that was seized and withheld from him, and
maintained by Defendants for the direct, positive benefit of the ISP and/or the State of Idaho.
112.

At all times relevant hereto, the rights held by Mr. Bush to be free from an

unconstitutional taking of his private property without compensation were clearly established.
113.

As a direct and proximate result of Defendants permanently depriving Mr. Bush

of his property without just compensation, Mr. Bush suffered general and special damages as
alleged in this Complaint and is entitled to relief under 42 U.S.C. 1983.
114.

The conduct of Defendants was intentional and deliberately indifferent to

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Mr. Bushs constitutionally protected rights, it was willful, malicious, oppressive and/or reckless,
and was of such a nature that punitive damages should be imposed in an amount commensurate
with the wrongful acts alleged herein.
DAMAGES
115.

Plaintiff repeats and realleges each and every allegation in the preceding

paragraphs and by reference incorporates each paragraph herein.


116.

As a direct and proximate result of the unlawful acts of Defendants as described

herein, Plaintiff has been injured as follows, but not limited to:
(a) Plaintiff has been deprived of his constitutional rights guaranteed by the
United States Constitution.
(b) Plaintiff has suffered permanent loss of his property.
(c) Plaintiff has incurred monetary expenses due to the termination of each of the
above losses of right or property.
(d) Plaintiff has incurred, and will be required to incur in the future, legal fees
and costs to protect his rights.
ATTORNEY FEES AND COSTS
Plaintiff has been forced to incur attorney fees and costs related to the prosecution of this
matter.

Plaintiff is entitled to recover his reasonable costs and attorney fees pursuant to

42 U.S.C. 1981a(b), 1983, and 1988; Idaho Code 12-117, 12-120 and/or 12-121; Federal
Rule of Civil Procedure 54; and other applicable law.
DEMAND FOR JURY TRIAL
Plaintiff demands a trial by jury of no less than twelve (12) persons on all issues and all
claims herein.

COMPLAINT AND DEMAND FOR JURY TRIAL 14

PRAYER FOR RELIEF


WHEREFORE, Plaintiff respectfully requests judgment against the Defendants as
follows:
1.

For an award of special, general and punitive damages for Plaintiffs losses

incurred as a result of the Defendants violations of Plaintiffs civil rights as guaranteed by the
Fifth, Eighth, and Fourteenth Amendments of the United States Constitution in an amount that
will fully and fairly compensate the Plaintiff for his losses, pain and suffering, and emotional
distress and anguish in amounts to be determined at trial;
2.

For punitive damages based upon Defendants willful violations of and callous

indifference to Plaintiffs constitutionally protected rights, in amounts that will deter similar
wrongful conduct in the future, to be determined at trial;
3.

For an award of pre-judgment and post-judgment interest as allowed by law;

4.

For reasonable attorney fees incurred in the prosecution of this action, or, in the

event judgment is taken by default against any Defendant, the amount of $5,000; and
5.

For all other and further relief as the Court deems just and equitable, and to which

Plaintiff is due as a matter of law and equity.


DATED this 3rd day of November, 2014.
JONES & SWARTZ PLLC

By

COMPLAINT AND DEMAND FOR JURY TRIAL 15

/s/ Joy M. Vega


ERIC B. SWARTZ
JOY M. VEGA
REGAN CHARLTON