AELE LAW LIBRARY OF CASE SUMMARIES:
Civil Liability of
Law Enforcement Agencies & Personnel
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Search and Seizure: Home/Business
Monthly Law Journal Article: Civil Liability for Exceeding
the Scope of a Search Warrant, 2010 (1) AELE Mo. L. J. 101.
Monthly Law Journal Article: Civil Liability and
Affidavits for Search Warrants -- Part One, 2010 (4) AELE Mo. L. J. 101.
Monthly Law Journal Article: Civil Liability and
Affidavits for Search Warrants -- Part Two, 2010 (5) AELE Mo. L. J. 101.
Monthly Law Journal
Article: Home Searches
and the Community Caretaking Doctrine, 2011 (1) AELE
Mo. L. J. 101
Monthly Law Journal
Article: No-Knock Home Searches,
2011 (3) AELE Mo. L. J. 101
Monthly Law Journal Article: Search Incident to Arrest –
Drug Dealers, 2011 (4) AELE Mo. L. J. 401.
Monthly Law Journal Article: Entry into a Residence as
Exigent Circumstances, 2012 (3) AELE Mo. L. J.
401.
A federal appeals court ruled that
a reasonable officer could think that a warrant to search a vehicle included an
implicit
authorization to seize the keys to the vehicle. A second warrant in the case
authorizin the seizure of any and all handguns in the plaintiff’s home, and the
seizure of antique handguns, guns in unopened boxes and holsters was permitted
because they were reasonably related to the suspected crime at issue – the
discharge of a firearm at a visitor to the defendant's home so that the warrant
was sufficiently particular. A defendant sheriff played no part in obtaining or
executing the warrant and the plaintiff failed to allege that he failed to
train or supervise his deputies and, as a result, he was entitled to summary
judgment on the claims against him in his individual capacity. The plaintiff
also failed to allege an actionable municipal custom, and the court therefore
did not err in granting the sheriff summary judgment on the plaintiff’s
official capacity claim. Finally, the plaintiff had an adequate state court
remedy to obtain the return of the seized items, and his due-process claim over
the retention of his property was rejected. Thiel v. Korte, #19-1860, 954 F.3d 1125 (8th Cir. 2020).
A 74-year-old female mobile homeowner challenged the legality of the issuance and execution of a search warrant for her home, while looking for an illegal marijuana business. She further challenged the legality of her detention incident to the search. A federal appeals court found that there was probable cause for the search based on the reliability of the informant and the probability that evidence or contraband would be found in the residences on the property. The search warrant issued was not overbroad. The court also found that the officers acted reasonably when they continued to search the mobile home because the probable cause to search the mobile home did not depend on the suspect living there. Instead, the officers had probable cause to continue the search because they could still reasonably believe that the entire property was suspect and that the property was still under the suspect’s common control. Finally, the duration of the detention, which lasted about an hour, was reasonable. Blight v. City of Manteca, #17-17334. 2019 U.S. App. Lexis 36636
An 18-year-old high school student just about to graduate experimented with LSD. The after-effects went on for several days, causing him being removed from class because of behavioral issues. A friend who checked in on him after school told police that his friend needed help, was armed with a pocket knife, and was upset with and threatening towards his mother. Four police officers went to the family home, not knowing that the mother was not actually home with her son. They entered without waiting for a warrant. The son appeared at the foot of the basement stairs, shouting obscenities and holding a lawnmower blade. The officers tried to subdue him by shocking him with a Taser in the dart mode. As an officer started down the stairs, the son stood up and started swinging. The lawnmower blade hit an officer, who fell back, and then shot and killed the son. A federal appeals court upheld summary judgment in favor of the defendants in an excessive force lawsuit. While the court characterized the case as “heart-rending,” it stated that, given the circumstances and governing law, the entry into the home was justified under the exigent-circumstances exception to the warrant requirement and the force used did not violate the Fourth Amendment. The officer who shot and killed the 18-year-old had probable cause to believe that he posed a significant threat of death or serious physical injury. Baker v. City of Trenton, #18-2181, 2019 U.S. App. Lexis 26207, 2019 Fed. Appx. 0221P (6th Cir.).
An officer who shot and killed a man he saw running into a parking lot was entitled to detailed examination by the trial court of his possible entitlement to qualified immunity. The officer was investigating a theft in the area and believed that the man he saw running was carrying a gun. The man allegedly turned and started moving towards another officer who was pursuing him, before the observing officer shot three times, killing him. The trial court failed to meet its “threshold duty” to make a thorough determination of the officer’s claim of qualified immunity, and therefore the case had to return to the trial court for a second look at that issue as well as reconsideration of the officer’s claim of official immunity on state law claims. N.S. v. Thompson, #18-1537, 2019 U.S. App. Lexis 23944, 2019 WL 3773472 (8th Cir.).
A lawsuit was filed on behalf of a two-year-old girl who allegedly suffers from Post-Traumatic Stress Disorder (PTSD) as a result of the blast of a flash-bang grenade in her residence. The plaintiffs claimed that the officers in a SWAT team, even though they knew that the homicide suspect they sought was already in custody, broke open the screen door of the suspect’s residence and threw a flash-bang grenade into the living room before a young woman could open the door with keys she was holding. The only people inside the home were three women and a two-year-old girl. The girl suffered PTSD from the officers' use of the flash-bang grenade. A federal appeals court ruled that the SWAT team officers were not entitled to qualified immunity. Any reasonable officer would have known that the use of a flash-bang in these circumstances while executing a knock and announce warrant was excessive force. It was clearly established that the use of a flash-bang grenade was unreasonable when officers have no basis to believe they will face a threat of violence and when they unreasonably fail to determine whether there are any innocent bystanders in the area where the grenade will be deployed. Defendant police detectives, however, were entitled to summary judgment because there was probable cause to support the search warrant, even considering the omitted information, and because their decision to use a SWAT team, regardless of whether it was reasonable, did not violate clearly established law. Z. J. v. Kansas City Board of Police Commissioners, #17-3365, 2019 U.S. App. Lexis 22205, 2019 WL 3330459 (7th Cir.).
A federal appeals court found that the Texas Medical Board violated the Fourth Amendment when it conducted an administrative search of a doctor‘s office and his patient records because it demanded immediate compliance with its subpoena seeking information about his pain medication prescribing practices. It ruled that the medical industry as a whole was not a closely regulated industry, and the statutory scheme was not a proper substitute for a search warrant as there were insufficient limits on the discretion of the Board. Government agents violate the Constitution when without warrants they search clinics that are not pain management clinics without providing an opportunity for precompliance review. The Board members, however, were entitled to qualified immunity because the unlawfulness of their conduct (whether or not this doctor’s office constituted a pain management clinic) was not clearly established at the time of the search, and the search was not pretextual. Zadeh v. Robinson, #17-50518, 2019 U.S. App. Lexis 19797 (5th Cir.).
Police officers trying to serve a man with a civil levy knocked on the door of what they believed to be his residence until he came out. He told them that the house was owned by his girlfriend, who was inside, and asserted that he did not live there. The truth was that he and his girlfriend together rented the premises. He further told the officers that he had no keys to the house and was unable to go back inside. The officers proceeded to ask the man if he had anything against which they could levy and then told him that he was free to leave. He left and the officers walked around the exterior of the home, searching for anything that could possibly be levied. Smelling marijuana coming from a crawl space vent, they reported seeing partially smoked marijuana joints inside. While the joints were never tested for the presence of marijuana, the officers subsequently obtained a search warrant for the home based on their statements, prior complaints about alleged activities at the home, the man’s criminal record, and a tip from a confidential informant. Upon executing the search warrant, they found a large amount of marijuana inside the residence as well as evidence showing both its sale and use. State courts suppressed the evidence and the man sued, claiming illegal search. The trial court found that his Fourth Amendment rights had been violated, but that the officers were entitled to qualified immunity. A federal appeals court reversed, noting that under clearly established law, the plaintiff did not disclaim his privacy interest in the home, and the property was not abandoned. The court found that the officers exceeded the scope of their implied license to enter and remain on the curtilage of the property and searched it without a warrant, and were therefore not entitled to qualified immunity. Watson v. Pearson, #18-6047, 2019 U.S. App. Lexis 19480 2019 Fed. App. 0138P (6th Cir.).
During the administrative search of a medical clinic for civil violations concerning medical licenses and regulating the prescription of controlled substances that resulted in the plaintiff owner being detained for a few hours, the investigator pushed the plaintiff down, drew his gun multiple times, and limited the plaintiff’s movement and access to facilities such as the restroom. The rarely arising issue in the resulting lawsuit was whether the government may detain the owner of a business that is being searched not because of suspected criminal activity but instead for possible civil violations. [The issue in the context of searches for criminal activity is governed by Michigan v. Summers, #79-1794, 452 U.S. 692 (1981), which allows law enforcement to detain the occupant of a residence where a criminal search warrant is being executed, but requires the scope of that detention to be reasonable]. A federal appeals court upheld the dismissal of claims against the investigator. While the lawsuit’s allegations established a Fourth Amendment violation based on the intrusiveness of the detention, the “sparse” caselaw in this area had not “clearly established” the unlawfulness of this type of detention. Therefore, the investigator was entitled to qualified immunity. Okorie v. Crawford, #18-60335, 921 F.3d 430 (5th Cir. 2019).
A federal appeals court vacated in part a grant of a motion to dismiss a complaint of unlawful search of a home. It ruled that the warrantless search in this case violated the Fourth Amendment because the circumstances, including deception by law enforcement officers, vitiated the consent given by the plaintiff. The plaintiff asserted that he consented to the FBI agents’ entry into his home and search of his computers only because the officers lied about the true reason of why there were there and what they were looking for. Their lie that they were looking for the source of a signal and/or viruses that had been detected in Washington, D.C., vitiated the consent given, when they were actually looking for child pornography The appeals court ruled that the totality of the circumstances pointed to a situation involving beguilement, that the government did not meet its burden to prove voluntariness, and therefore, the warrantless entry into the home and the search and seizure of his computer violated the Fourth Amendment. Further, the defendants were not entitled to qualified immunity on the plaintiff's search-based Fourth Amendment claim because any reasonable officer would have recognized that the circumstances were impermissibly coercive. Pagan-Gonzalez v. Moreno, #16-2214, 2019 U.S. App. Lexis 8716, 2019 WL 1306382 (1st Cir.).
Officers aggressively searched the plaintiffs’ homes, armed with search warrants authorizing a search for drugs. The officers knocked in doors with rams, used flashbangs, and allegedly left the homes in complete disarray. During or immediately following a search, an officer called a housing code compliance officer to the scene. At each of the four homes, the inspector found code violations such as water heaters without inspection tags, bare electrical wiring, and non-working smoke detectors and then declared the home unsafe for occupancy. Some of the plaintiffs were arrested, but in each case, the charges were dismissed. A federal appeals court upheld in part summary judgment for the defendants and the validity of the search warrants. Probable cause supported two of the warrants, a third warrant was not so lacking in indicia of probable cause that official belief in the existence of probable cause was unreasonable, and the plaintiffs abandoned any challenge to the fourth warrant. Claims concerning the execution of the search warrants were properly rejected. The plaintiffs failed to show that the named officers actively participated in the use of excessive force causing destruction, supervised those who used excessive force, or owed the victims a duty of protection against the use of excessive force. The officers were properly granted summary judgment on plaintiffs' invasion of privacy claims because plaintiffs failed to present sufficient evidence that the named police officers admitted the inspectors. Although the officers had no authority to admit third parties, even state actors, who had no warrant and could provide no assistance to the warranted searches, invasion-of-privacy claims failed because there was little evidence that the named officers admitted the inspectors into the homes. Gardner v. Evans, #17=1933, 2019 U.S. App. Lexis 9943 2019 WL 1487308 (6th Cir.).
Police officers forcibly entered and without a warrant searched the apartment rented by a man’s girlfriend. They arrested the man, who was present in the apartment, after they found drugs in a common area that was shared by multiple tenants. He was incarcerated for over six months and indicted for various drug offenses. A state court ruled that the search was unlawful and the charges were dropped. He sued the city and various officers, alleging that the city had a pattern or practice of constitutional violations and failed to train, supervise, and discipline its officers. The lawsuit also asserted an unlawful search claim against the officers and argued that they were liable for false imprisonment and malicious prosecution. The trial court dismissed all of the claims as inadequately pled and held the city did not have an ongoing practice of unconstitutional searches and arrests. While the plaintiff’s appeal was pending, he died, and the appeal was pursued by his estate. A federal appeals court vacated in part, finding that most of the plaintiff’s claims did not withstand dismissal, but that it adequately alleged that the police department had a custom of warrantless searches and false arrests. The plaintiff also sufficiently pled that the department failed to train, supervise, and discipline its officers, specifically with respect to the requirements of the Fourth Amendment. Estate of Roman v. Newark, #17-2302, 2019 U.S. App. Lexis 3154 2019 WL 348658 (3d Cir.).
An officer’s confidential informant reported that he had bought heroin from a man named “Fred.” The warrant affidavit stated that the informant had bought heroin from Fred for a couple of months, Fred sold heroin from a particular home's basement, and the informant had bought heroin from Fred that day and saw Fred with over 100 baggies of heroin. The officer showed Doe a photo of the Edwards home, which he confirmed was the location. The officer drove the informant to the location, where he confirmed that identification. The officer used a database to obtain a photograph of Freddy Sutton, who Doe identified as “Fred.” The officer’s supervisor and an assistant state’s attorney approved the warrant application. Aware of the informant’s criminal history, the judge questioned him under oath and issued the search warrant. Officers carried out the search four days later. Edwards and his daughter were outside and prevented from entering their home during the search, which took about two hours and uncovered no illegal drugs and did not find the suspect present. There was minor property damage. The Edwardses sued, challenging the legality of the search. A federal appeals court upheld the dismissal of a municipal liability claim against the city because the plaintiffs did not plausibly allege the existence of any city policy or practice permitting searches without probable cause. Summary judgment was also granted to the defendant officers, as the warrant was supported by probable cause. The officers were additionally entitled to qualified immunity based on their reasonable reliance on the warrant. Edwards . Jolliff-Blake, #17-1848, 2018 U.S. App. Lexis 3101 (7th Cir.).
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A state patrol officer was entitled to qualified immunity on a woman’s claim that his entry into her home without a warrant and under false pretenses while investigating possible fraud in her application for Social Security disability benefits violated her Fourth Amendment right to be free from unreasonable searches and seizures. He entered by requesting her assistance on a fictional criminal investigation. While the entry into the plaintiff’s home during the course of a civil fraud investigation was an unreasonable search under the Fourth Amendment, he was entitled to qualified immunity because the right to be free from a search in the context of a civil or administrative investigation related to a determination of benefits was not clearly established at the time. Whalen v. McMullen, #17-35267, 2018 U.S. App. Lexis 30686 (9th Cir.). An IRS agent was not entitled to qualified immunity for allegedly violating a woman’s Fourth Amendment right to bodily privacy when, during the lawful execution of a search warrant for criminal tax fraud at the plaintiff's home, he escorted her to the bathroom and monitored her while she relieved herself. Based on the scope, manner, justification, and place of the search, the court ruled held that a reasonable jury could conclude that the agent’s actions were unreasonable and violated the woman’s Fourth Amendment rights. The defendant’s general interests in preventing destruction of evidence and promoting officer safety did not justify the scope or manner of the intrusion into the woman’s most basic subject of privacy, her naked body. This right was clearly established and a reasonable officer in the agent’s position would have known that such a significant intrusion into bodily privacy, in the absence of legitimate government justification, was unlawful. Ioane v. Hodges, #16-16089, 903 F.3d 929 (9th Cir. 2018). |
On remand from the United States Supreme Court, in a case in which the Court rejected the “provocation” doctrine of the Ninth Circuit finding liability for an otherwise justified shooting found to have been provoked by an illegal entry, the Ninth Circuit held that the unlawful entry into a residence by two sheriff's deputies, without a warrant, consent, or exigent circumstances, was the proximate cause of the subsequent shooting and injuries to plaintiffs. Therefore, the appeals court panel permitted the federal claim under 42 U.S.C. 1983 despite the U.S. Supreme Court’s ruling. The appeals court panel ruled that if an officer has a duty not to enter in part because he or she might misperceive a victim's innocent acts as a threat and respond with deadly force, then the victim's innocent acts cannot be a superseding cause. In this case, the victim’s action of moving the gun so that it was pointed in the deputies’ direction was not a superseding cause of the plaintiffs' injuries. The panel also held that plaintiffs had an independent basis for recovery under California negligence law in light of Hayes v. County of San Diego, #S193997, 57 Cal. 4th 622, 305 P.3d 252 (2013). On remand, the panel noted that the judgment shall be amended to award all damages arising from the shooting in the plaintiff’s favor as proximately caused by the unconstitutional entry, and proximately caused by the failure to get a warrant. Judgment will also be entered for the plaintiffs on the California negligence claim for the same damages arising out of the shooting. Mendez v. County of Los Angeles, #13-56686, 897 F.3d 1067 (9th Cir.2018).
Editor’s Note: For a discussion of the prior U.S. Supreme Court decision in the above case, County of Los Angeles v. Mendez, #16-369, 137 S. Ct. 1539, 198 L. Ed. 2d 52, 2017 U.S. Lexis 3396, see U.S. Supreme Court Rejects the Ninth Circuit’s Provocation Doctrine on Officer Shootings, 2017 (8) AELE Mo. L. J. 101.
A confidential informant told a police officer that a suspect had guns in his apartment. Since informant had previously given good information, the officer drove him by the apartment to confirm the address and took the informant before a judge to testify in support of warrant applications. The judge issued search warrants, and police executing the warrants found guns, ammunition, and heroin. The suspect was acquitted because the evidence did not prove beyond a reasonable doubt that the contraband seized was his. He sued the city and the officers, raising a Fourth Amendment claim for an unlawful search and arrest and a state‐law claim for malicious prosecution. The trial court rejected the plaintiff’s argument that the warrant was defective because the informant’s tip was hearsay, reasoning that the tip was not offered to prove the truth of the matter it asserted. A federal appeals court upheld summary judgment in favor of the defendants. There was probable cause for the search, arrest, and prosecution because of the informant’s tip. The court rejected the “irrational argument” that there was a disputed fact as to whether the informant existed or gave the tip at all, as waived for not having been raised below, as was the plaintiff’s supposed Brady claim concerning the officers’ failure to procure fingerprint evidence during the search. Wheeler v. Hronopoulos, #17-2073, 2018 U.S. App. Lexis 15188 (7th Cir.).
Officers interrupted what they reasonably believed to be a residential burglary and detained two suspects just outside of the house. A federal appeals court held that this gave them a basis to lawfully enter the house without a warrant, and without further suspicion of wrongdoing, to briefly search for additional perpetrators and potential victims. The suspected burglary presented an exigent circumstance that justified a warrantless entry and search. The officers in this case therefore did not violate the Fourth Amendment, and the appeals court reversed the trial court’s denial of summary judgment for the officers. Montanez v. Carvajal, #16-17639, 2018 U.S. App. Lexis 12146 (11th Cir.).
A federal appeals court used a case to clarify its circuit’s emergency aid doctrine and bring it into line with U.S. Supreme Court precedent (See Michigan v. Fisher, #09-91, 558 U.S. 45, 47 (2009)). It held that police officers seeking to justify their warrantless entry into homes need only demonstrate an objectively reasonable basis for believing that a person within the house is in need of immediate aid. The court thereby modified its previous rulings in United States v. Martins, #04-1474, 413 F.3d 139 (1st Cir. 2005), and subsequent cases, clarifying that police officers need not establish that their belief approximated probable cause that such an emergency existed. In this case, the trial court entered judgment for the defendant police officers and city, concluding that the officers did not commit a Fourth Amendment violation because their conduct fell within the emergency aid exception to the warrant requirement. The appeals court then affirmed on the basis that the officers were entitled to qualified immunity and no claim was stated against the city. Hill v. Walsh, #17-1669, 2018 U.S. App. Lexis 4814 (1st Cir.).
Arriving at a home at 4 a.m. to execute a search warrant, 13 police officers wearing SWAT gear and face masks blew open the door of the home with a shotgun. The officers did not knock or announce their presence. The parents and their daughters were ordered to their knees at gunpoint, and the officers handcuffed a nephew who was present. The couple repeatedly asked to see the search warrant, but the officers refused to show it and did not allow the mother to sit with her seven-year-old daughter. Officers merely stated that they were searching for a “dangerous Russian,” who had evidently resided at the house more than a year before the search. Officers found neither the suspect nor any contraband. The police department produced the underlying search warrant in response to the couple’s lawsuit complaint. The warrant described the home and listed controlled substances and items connected to narcotics trafficking as items to be seized. A federal appeals court upheld the denial of the officers’ motion for judgment on the pleadings based on qualified immunity. The complaint stated a plausible claim that the officers violated the plaintiffs’ clearly established Fourth Amendment rights by executing a search warrant on their home in an unreasonable manner. Greer v. City of Highland Park, #17-1281, 2018 U.S. App. Lexis 5330, 2018 Fed. App. 41P (6th Cir.).
The state of Ohio has a warrantless search provision in its Precious Metals Dealers Act (PMDA), allowing the state to “investigate the business” of licensees and non-licensees with “free access to the books and papers thereof and other sources of information with regard to the[ir] business[es].” Licensees must also maintain records, at the licensed premises in a state-approve form, open to inspection by the head of the local police department and, “upon demand,” show authorities any precious metal within their possession that is listed in these records. Their records must be available to local police “every business day. A jeweler and a coin dealer brought Fourth Amendment challenges to the warrantless search provisions. A federal appeals court held that the warrantless searches authorized are facially unconstitutional and not necessary to furthering the state’s interest in recovering stolen jewelry and coins; nor do they serve as adequate warrant substitutes because they are overly broad. The record keeping requirements, however, were upheld. Liberty Coins, LLC v. Goodman, #16-3735, 2018 U.S. App. Lexis 1370, 2018 Fed. App. 14P (6th Cir.).
A plaintiff failed to plead a plausible Fourth Amendment claim of unreasonable search and seizure of an investment fund’s office for evidence of insider trading against federal law enforcement authorities because a corrected search warrant affidavit supported both probable cause for and the scope of the challenged search. He failed to plead a plausible Fifth Amendment claim that fabricated evidence (in the search warrant affidavit) deprived him of property without due process because the warrant would have issued on a corrected affidavit and thus any deprivation of the seized property was not the result of the fabricated evidence. The plaintiff also failed to plead any clearly established right to have federal officials state in a search warrant affidavit whether each mentioned person is or is not then a target of investigation, nor a right to have federal officials so state after the fact if the search becomes public knowledge; and he failed to plead sufficient facts as to the supervisor defendants' personal involvement in the submission of any misstatements to the magistrate judge. Ganek v. Leibowitz, #16-1463, 874 F.3d 73 (2nd Cir. 2017).
A married couple sued police officers, claiming that their warrantless entry into their home and subsequent arrest of the husband over a neighbor’s complaint about his throwing objects at them earlier violated their Four Amendment rights. A federal appeals court upheld the rejection of qualified immunity for the officers, finding that the officers had not shown the existence of exigent circumstances justifying a warrantless entry. When the husband closed the interior door to his home, telling the officers to return with a warrant, the situation was such that a reasonable officer, in the absence of exigent circumstances should have realized that breaking into the house with no warrant, as well as making an arrest inside, violated clearly established law. Morse v. Cloutier, #15-2043, 869 F.3d 16 (1st Cir. 2016).
Officers entered into a vacant apartment without a warrant and used deadly force on a man trespassing inside who aggressively attacked them, growling and waving a broken hockey stick. A federal appeals court ruled that the officers were entitled to qualified immunity on both warrantless entry and seizure of the apartment, as the man had no reasonable expectation of privacy there. They were also entitled to qualified immunity on excessive force claims, as their actions did not violate clearly established Fourth Amendment law. Woodward v. City of Tucson, #16-15784, 2017 U.S. App. Lexis 17896 (9th Cir.).
While Wisconsin’s governor was engaged in making changes to the state’s public union laws, one of his top state government policy staffers advocated the changes and drafted the proposed law. At the same time, a county State’s Attorney’s office was investigating the staffer and several other close associates of the governor concerning missing charitable funds and had a judge issue a search warrant. The staffer claimed that she was targeted because of her work on the union bill and her affiliation with the governor, in violation of her First Amendment rights. She sued prosecutors and members of the investigative team. A federal appeals court upheld dismissal of the lawsuit on grounds of qualified immunity. The warrant was valid and the plaintiff stated no claim about the execution of the search. Officers may detain the occupants of a location to be searched when they execute a valid warrant if they have a valid reason for doing so. There is no clearly established rule of law, the court stated, under which an official pursuing a lawful investigation, based on probable cause, has been found liable under the First Amendment. The court found no factual support for the claims that the warrant’s supporting affidavit was procured through deceit or that the warrant was not supported by probable cause. Archer v. Chisholm, #16-2417, 870 F.3d 603 (7th Cir. 2016).
A man visited a garden store with his two children in tow, and bought a small bag of supplies to grow tomatoes and other vegetables in the basement of the family home as an educational project with his 13-year-old son. A sergeant in the Missouri State Highway Patrol was parked nearby in an unmarked car, watching the store as part of a personal “pet project” where he would spend three or four hours per day watching the garden store, keeping detailed notes on all of the customers: their sex, age, vehicle description, license plate number, and what they bought. Five months later, the sergeant was involved in a joint operation with the county sheriff’s office in which raids were conducted on various homes targeted as a result of information developed from the surveillance of the garden store. A raid on the father’s home ended with searching the trash and finding loose tea leaves, and a suspicion of a marijuana growing operation in the Harte house. A SWAT team descended on the family home (complete with battering ram, bulletproof vests, and assault rifles), keeping the entire family under armed guard for two and a half hours. A federal appeals court upheld summary judgment on all claims against the defendant sergeant, as well as excessive force and Monell municipal liability claims. But it reversed the trial court’s grant of summary judgment on the unlawful search and seizure claims asserted against the remaining defendants. On remand, the plaintiffs’ claim under Franks v. Delaware, #77-5176, 438 U.S. 154 (1978), was limited to their theory that one or more of the remaining defendants lied about the results of the field tests conducted on the tea leaves collected from the plaintiffs’ trash. Harte v. Board of Commissioners County of Johnson, #16-3014, 864 F.3d 1154 (10th Cir. 2017).
A corporal in the Arkansas Game and Fish Commission sued challenging the search of his residence pursuant to a search warrant. A federal appeals court found that the officer who obtained the search warrant did not act entirely unreasonably in believing that his affidavit established sufficient indicia of probable cause for the search and seizure of the items listed in the warrant, including to seize a deer, based on both an anonymous tip and a recorded jailhouse call. Additionally, the items described in the warrant were relevant to the criminal offense under investigation, as they directly related to the existence, capture, and maintaining of an illegal pet deer. Kiesling v. Spurlock, #16-2197, 859 F.3d 529 (8th Cir. 2017).
Officers attempted to pull over a
female motorist who ran a stop sign, but she drove on, speeding, until she
stopped at an apartment complex. She ran from her truck towards an apartment. A
deputy fired his Taser in the dart mode at her, with one of the darts hitting
her. Allegedly, no warning was given. As she pounded on a door, the deputy
began hitting and kicking her, and activated the Taser again. The woman's
mother opened the apartment door. The deputy pushed the motorist inside and the
struggle continued, as she refused to passively submit. The mother pled with
the deputy to leave her daughter alone. The deputy then used his Taser on the
mother's leg and threatened to arrest her. Additional officers arrived in
respose to the deputy's dispatch call. He handcuffed the motorist and escorted
her out to his car. During the encounter, he activated the Taser on the
motorist nine or ten times. The Taser dart was surgically removed from her back
later that night. Her injuries included two fractured ribs. A federal appeals
court rejected excessive force, unlawful entry, and unlawful seizure claims,
finding that the plaintiffs failed to meet their burden of presenting a legal
argument as to why the deputy's actions violated their clearly established
rights, as required to defeat his qualified immunity defense. They failed, on
the unlawful entry claim, to demonstrate that it was "beyond
debate" in 2009 that the Constitution prohibited a warrantless entry based
on hot pursuit in the circumstances presented here. Gutierrez v. Luna County
Sheriff Cobos, #15-2161, 2016 U.S. App. Lexis 20466 (10th Cir.).
After police conducted two warrantless searches
of his home, a man sued the District of Columbia and individual officers for
violations of his Fourth Amendment rights. The first search occurred after the
man called a suicide hotline, and in the course of the conversation mentioned
having weapons in his home. Overturning summary judgment for the defendants, a
federal appeals court reasoned that, even assuming, without deciding, that the
initial sweep of the plaintiff's home by the Emergency Response Team (ERT) was
justified under the exigent circumstances and emergency exceptions to the
warrant requirement, the second top-to-bottom search by the Explosive Ordinance
Disposal Unit (EOD) after the police had been on the scene for several hours
was not. In this case, the police had already secured the area and
determined that no one else was inside the home and that there were no
dangerous or illegal items in plain sight; the plaintiff had previously surrendered
peacefully to custody; and the information the police had about the plaintiff
failed to provide an objectively reasonable basis for believing there was an
exigent need to break in plaintiff's home a second time to search for hazardous
materials. And assuming, without deciding, that the community caretaking
exception to the warrant requirement applies to a home, the court concluded
that the scope of the second search far exceeded what that exception would
allow. Because the law was clearly established at the time that the law
enforcement officers must have an objectively reasonable basis for believing an
exigency justifies a warrantless search of a home, and because no reasonable
officer could have concluded such a basis existed for the second more intrusive
search, the court concluded that the officers were not entitled to qualified
immunity across the board. Corrigan v. District of Columbia, #15-7098, 2016
U.S. App. Lexis 20108 (D.C. Cir.).
There was an injunction
prohibiting a man from possessing a firearm. When two deputies were escorting
his ex-girlfriend into his home to remove her personal belongings, they
allegedly saw a firearm in plain view, resulting in his arrest. He sued for
unlawful search and seizure, but a federal appeals court held that the deputies
were entitled to qualified immunity, as it was not clearly established that
their entry into the residence's sunroom under these circumstances of the case
would violate his rights. They were also entitled to qualified immunity for
alleged unlawful entry into the home from the sunroom when the plaintiff
consented to that entry. The seizure of the firearm was lawful under the plain
view doctrine. This gave them at least arguable probable cause for the arrest.
Fish v. Brown, #15-12348, 2016 U.S. App. Lexis 17778, 26 Fla. L. Weekly Fed. C
840 (11th Cir.).
A man claimed that FBI agents and a police
detective violated his Fourth Amendment rights by the nighttime execution on
his home of a daytime only search warrant. The defendants were entitled to
qualified immunity on that claim when it was not clearly established in
Maryland that this would violate his rights. The appeals court reversed,
however, the dismissal of the claim that the defendants made-an unjustified
no-knock entry. Jones v. Kirchner, #14-5257, 2016 U.S. App. Lexis 15759 (D.C.
Cir.).
Over 20 officers armed with assault rifles
responded to a report of two armed black males in a parking lot. When they
arrived there, no one fitting the description was present, only a large Samoan
family celebrating a little girl's birthday. The family was detained and
searched for weapons, and their apartment was then searched without a warrant
or consent. The officers were not entitled to qualified immunity for the
seizure of the plaintiffs or the warrantless search of the apartment. Sialoi v. City of San
Diego, #14-55387, 2016 U.S. App. Lexis 9489 (10th Cir.).
Two deputies, during a warrantless raid on a
house, shot a homeless couple living in a shack in the backyard, including a
man holding a BB gun. A federal appeals court upheld a determination that the
entry into the shack constituted a search under the Fourth Amendment. The shack
was in the curtilage adjacent to the home. The entry violated the Fourth
Amendment as the deputies could not show consent, exigent circumstances, or a
lawful protective sweep. The deputies entry into the shack also violated the
knock and announce rule, but the law on that subject in these circumstances was
not clearly established in 2010, so the deputies were entitled to qualified
immunity on that claim, with an award of nominal damages on that claim
overturned. Going forward, the court stated, officers must knock and announce
their presence when they know or should reasonably know that an area within the
curtilage of a home is a separate residence from the main house. While the
shooting was not found to be excessive force, an award of damages was upheld
under the provocation doctrine. When "an officer intentionally or
recklessly provokes a violent confrontation, if the provocation is an
independent Fourth Amendment violation, he may be held liable for his otherwise
defensive use of deadly force." The appeals court upheld an award of $4
million for the shooting and $1 in nominal damages for the unlawful search. Mendez
v. County of Los Angeles, #13-56686, 2016 U.S. App. Lexis 3847 2016 WL 805719
(8th Cir.).
35 armed federal and state agents carried
out a search of a water bottling facility as part of an IRS and Small Business
Administration investigation of the business and its alleged fraud in
connection with an application for a disaster relief loan. A federal appeals
court found that neither the number of agents nor their possession of weapons
made the search unreasonable under the Fourth Amendment. The detention of
employees during the execution of the search warrant was reasonable. The
detention prevented employees from fleeing if incriminating evidence was found
and ensured that they were available to assist in the search, such as by
opening locked file cabinets without force. The mere presence of armed officers
did not constitute excessive force. Mountain Pure v. Roberts, #15-1656, 2016
U.S. App. Lexis 3290 (8th Cir.).
A jury found that a city and its police
department violated a man's rights by obtaining a warrant to search his home,
while failing to disclose in seeking the warrant that he had not been living in
the house for seven months prior to the gang-related shooting being
investigated because he had been incarcerated for unrelated charges. In
determining whether to award attorneys' fees and costs against the defendants,
the appeals court held, it was appropriate to take into account the settlement
the plaintiff obtained against another city also involved in the same incident,
as a result of which he obtained $150,000 in damages, as well as $169,856.34 in
attorney fees, and $16,208.95 in costs, while only $5,000 in damages were
awarded against the first city after trial. The appeals court upheld the trial
court's award of $1.023 million in attorneys' fees finding that the award was
supported both by the public benefit of the lawsuit and the $150,000 settlement
against another party arising out of the same facts, while ruling that further
proceedings should be held on the $13,376.85 in costs awarded by the trial
court, taking into account the costs recovered in the prior settlement. Bravo
v. City of Santa Maria, #14-55557, 2016 U.S. App. Lexis 432 (9th Cir.).
A man was arrested in his girlfriend's apartment
nine days after he committed a home robbery. He was convicted of various
criminal charges and sentenced to 40 years in prison, but sued sheriff's
deputies, claiming that their arrest of him violated the Fourth Amendment. The
fact that there was an outstanding arrest warrant for the plaintiff was all
that the detectives needed to be justified in making the arrest, even though
they didn't know about the existence of the warrant, a federal appeals court
held. Factual issues about whether the girlfriend consented to the detectives
entry into the apartment or merely did not object were irrelevant when they did
not enter until they saw the plaintiff and therefore knew that they had found
their robbery suspect. Cook v. O'Neill, #14-1641, 2015 U.S. App. Lexis 16838
(7th Cir.).
A trial court erred in dismissing, on qualified
immunity grounds, claims that agents of the Puerto Rico Treasury Department
violated the Fourth Amendment in seizing, without a warrant, their "adult
entertainment machines" (arcade like game machines sometimes allegedly
unlawfully used as gambling devices) from various business locations. The trial
court failed to address the necessary issues of whether a regulatory regime for
the machines provided an acceptable substitute for a warrant, or the
permissible scope of the search. The plaintiff's waived, however, a Fourteenth
Amendment due process claim as to denial of a pre-seizure hearing as they
failed to provide a comparison of the benefit of such a hearing, involving the
probability of a mistaken deprivation and the property's value, to the cost of
such a hearing or show that a post-seizure hearing was inadequate.
Rivera-Corraliza v. Puig-Morales, #13-2138, 794 F.3d 208 (1st Cir. 2015).
A man consumed several alcoholic drinks and then
made several "erratic" calls to 911 complaining about someone with a
gun at a nearby bar, and used various obscenities to the dispatcher, getting
into a heated exchange. When officers arrived at his residence, he locked his
door and retreated upon seeing them. They feared that someone inside might need
help, so they broke down the door and entered. They found the man hiding under
a sheet in his dark basement. What followed was disputed. The man claimed that
he did not realize that the officers were police and feared that they were
members of a motorcycle gang breaking into his house. When officers pulled the
sheet off his head, the man claimed that he did not resist, but merely put his
hands up and legs out, saying "You got me." An officer fired his
Taser in the dart mode into the man's chest. He claimed he was given no warning
or opportunity to give himself up for handcuffing. The officers claimed that
the man was in a crouching position and would not comply with orders to present
his hands for handcuffing, and that warning was given before the Taser was
used. The man was also allegedly seen reaching towards his waistband. The Taser
was activated again in the dart mode and then in the stun mode twice as the man
allegedly continued to fail to comply with orders, after which the man was
handcuffed. The officer who used the Taser testified that he feared that the
noncompliant man might have had a gun. A federal appeals court found that the
officers were entitled to qualified immunity on a warrantless entry claim
because it was not clearly established that no exigent circumstance existed
when the officers entered a residence in response to multiple erratic 911 calls
from there and when they believed that someone inside may have threatened the
use of a gun. But the man could go forward with his excessive force claim
because it was disputed whether he resisted or not and whether he was given an
opportunity to comply with commands before, and while, the Taser was being used
on him. The appeals court further ruled that summary judgment was inappropriate
at this time as to municipal liability claims and state law excessive force
claims. On the municipal liability claim, the trial court had rejected it
because it also rejected the excessive force claim against the officers. As the
appeals court reinstated that claim, the trial court needed to consider the
issue of whether that use of force occurred pursuant to some official policy or
custom. Gradisher v. City of Akron, #14-3973, 2015 Fed. App. 0160P, 2015 U.S.
App. Lexis 12814 (6th Cir.).
Two female officers were working off-duty as
secondary employment, patrolling an apartment complex. They noticed that the
door to a 67-year-old man's apartment was open, and observed him sitting on his
couch, leaning on his cane. They attempted to start a conversation with him,
and he told them he did not want any attention or help. One of the officers
thought the man was being "mouthy," and wanted to keep him from
shutting his door. When both officers stepped inside the apartment, the man
approached and a fight ensued when one of them allegedly pushed him and he
pushed back. The officers allegedly repeatedly struck the man and knocked off
his glasses. He repeatedly told them to get out of his residence. One of the
officers, who had exited to call for backup, reached inside to pull the other
officer out. The man refused to obey an instruction to lie down, and he was
allegedly getting his cane. One of the officers then fired two shots into the
apartment, killing the man. It was not clear whether the man was holding his
cane when he was shot. A federal appeals court held that neither officer was
entitled to qualified immunity on unlawful entry claims, and that the officer
who fired the shots was not entitled to qualified immunity on on excessive use
of lethal force claim, but that both officers were entitled to qualified
immunity on claims concerning the use of non-lethal force which caused minimal
injury. Taking the facts in the light most favorable to the plaintiff, it could
not be said that the officers had any basis for an unconsented warrantless
entry into the apartment, despite the officers' argument that they thought the
man might have needed assistance, or that there was any legal basis to shoot
and kill the man, A reasonable jury could find that the officer used deadly force
against a person who did not pose an immediate threat of serious physical
injury or death. The appeals court had to assume, for purposes of its decision,
that the decedent was not swinging his cane at the officers when he was shot.
Ellison v. Lesher, #13-3371, 788 F.3d 758 (8th Cir. 2015).
Police learned of Internet threats against them
coming from an IP address located at the home of a 68-year-old African-American
woman and her two daughters. The Internet wifi network there was unsecured.
Before searching the woman's home, officers observed, two doors away, a man who
had previously been convicted of intimidating an officer. Two of the officers
believed that he was the likeliest source of the threats. Some officers,
however, mistakenly believed that another man made the threats, but
surveillance revealed no male present at the woman's house. Despite this, an
11-man all white SWAT team in body armor, accompanied by a news crew, knocked
on the door of the house and, without waiting for a response, broke open the
door and a window, tossing in two "flash-bang" grenades. The officers
then rushed into the house, conducted a search that found no evidence of any
crime, and handcuffed the women, leading them outside. The male neighbor was
subsequently convicted of using the woman's network to make the threats. A
federal appeals court upheld the denial of summary judgment to the defendant
officers in an excessive force lawsuit. The court found that the officers acted
unreasonably and "precipitately" by using the flash-bangs in the
house without a "minimally responsible" investigation of the threats.
Milan v. Bolin, #15-1207, 2015 U.S. App. Lexis 13387 (7th Cir.).
Hotel owners and a lodging association challenged
the constitutionality of a Los Angeles Municipal Code section requiring hotel
operators to keep certain information about hotel guests on the premises for 90
days and make it available to any officer. It punished as a misdemeanor failure
to make the records available. Upholding a federal appeals court ruling in
favor of the plaintiffs, the U.S. Supreme Court found that the Code section was
facially unconstitutional under the Fourth Amendment as it failed to give the
hotel operators an opportunity for pre-compliance review, such as the issuance
of a warrant or issuance of an administrative subpoena. The Court found that
hotels were not a closely regulated industry lacking a reasonable expectation
of privacy, that warrantless inspections were not necessary to further the
regulatory scheme, and that there was insufficient constraint on the discretion
of officers to decide which hotels to search under what circumstances. City of
Los Angeles v. Patel, #13-1175, 2015 U.S. Lexis 4065.
A woman living in a group home for the mentally
ill started to act erratically and threatened to kill her social worker. Two
officers were sent to the home to escort her to a facility for temporary
evaluation and treatment. When they entered her room, she grabbed a knife,
threatening to kill them. They retreated and closed the door, but later
reentered, concerned about what was going on within the room, and allegedly
without considering if they could accommodate her disability. She again
confronted them with the knife, and after pepper spray failed to subdue her,
they shot her multiple times. She sued the city for alleged disability
discrimination in arresting her without accommodating her disability, and the
two officers for allegedly violating her Fourth Amendment rights. A federal
appeals court ruled that the Americans with Disabilities Act applied and that
the issue of whether the plaintiff's disability should have been accommodated
should be decided by a jury. It also held that the officers were not entitled
to qualified immunity, since it was clearly established that, in the absence of
a need for immediate entry, officers cannot forcibly enter the home of an
armed, mentally ill person who has been acting irrationally and threatened
everyone who entered. The U.S. Supreme Court granted review, but
dismissed its review of the issue of whether the ADA "requires law
enforcement officers to provide accommodations to an armed, violent, and
mentally ill suspect in the course of bringing the suspect into custody"
as "improvidently granted." A review of this issue was based on the
assumption that the city would argue that the ADA does not apply when officers
face an armed and dangerous person. Instead, the city argued that the plaintiff
was not "qualified" for an accommodation because she posed a direct
threat to others, a threat which could not "be eliminated by a
modification of policies, practices or procedures, or by the provision of
auxiliary aids or services." Since the court below had not addressed the
issues in that context, review by the U.S. Supreme Court was not proper. The Court
also noted that the parties in the case had also failed to address the related
question of whether a public entity such as the defendant city could be
vicariously liable for damages under Title II of the ADA for an arrest made by
its officers. The Court did hold, however, that the two individual defendant
officers were entitled to qualified immunity on the Fourth Amendment claims.
They did not violate the plaintiff's Fourth Amendment rights when they opened
her door the first time, and could, without a doubt, also have opened her door
the second time if she had not been disabled. Their use of force in response to
her threats with the knife was reasonable. So the only remaining question was
whether they violated her Fourth Amendment rights when they opened her door the
second time rather than attempting to accommodate her disability. As there was
no clearly established law on that issue, they were entitled to qualified
immunity. City and County of San Francisco v. Sheehan, #13-1412, 135 S. Ct.
1765, 2015 U.S. Lexis 3200.
Officers responding to a noise complaint entered
an apartment and fired a Taser in the dart mode at a male resident, activating
it for a total of 26 seconds--one five second application and a second 21
second activation. The man started to foam at the mouth, stopped breathing, and
went into cardiac arrest. He remained hospitalized for two weeks and suffered
an anoxic brain injury due to lack of oxygen, greatly impairing his mental
functioning. Bth he ad his wife were initially charged with disorderly conduct,
but those charges were dropped. The officers were properly denied summary
judgment on the basis of qualified immunity as there were disputed issues of
material fact as to whether a warrantless entry was in fact justified by the emergency
aid exception to the warrant requirement--which requires both the potential for
injury to the officers or others and the need for swift action. Additionally,
as to the excessive force claim, a jury could reasonably determine that the
alleged disorderly conduct was not a serious crime for purposes of deciding
whether excessive force was used in effecting an arrest for that crime, that
the uninterrupted 21 second second application of the Taser was
"atypically long," and that it was reasonable to hold the officer
accountable for taking note of changes in the man's physical condition over the
total 26 second time that the Taser was used. The man had a clearly established
constitutional right not to have the Taser used on him when he was, as he
claimed, offering at most passive resistence to the officer, as well as not to
have the Taser gratuitously used after he ceased all resistance. Goodwin v.
City of Painesville, #14-3120, 2015 U.S. App. Lexis 4417, 2015 Fed. App. 48P
(6th Cir.). In a prior decision in the case, a federal trial court barred the
defense from presenting a police chief's expert witness report on the medical
aspects of a Taser used in dart mode. The expert witness admitted that he could
not offer relevant opinions on the medical impact of the Taser based on
scientific evidence beyond what the jurors could learn from available medical
and scientific literature. The chief was presented as an expert in police
procedures "and not as an expert in the medical and technical effects of
Tasers." He could not properly present "medical conclusions regarding
the physical effects of Taser use outside of his purported, experientially
based, expertise." Nall v. City of Painesville, #1:10 CV 02883, 2012 U.S.
Dist. Lexis 66123, 2012 WL 1658623 (N.D.Ohio).
After a patrol officer engaged in a high speed
chase with a member of a family, he allegedly entered the family's home without
knocking and announcing his presence and impounded the family's ATV. Denial of
summary judgment to the officer for the no-knock entry was upheld when it was
disputed whether a reasonable officer should have taken into consideration at 2
a.m., that the other occupants of the home were awake and aware of his
authority and purpose. Claims related to the seizure of the ATV were rejected
as Texas state law allowed the officer to seize it under the circumstances as
he was lawfully on the premises and it had just been used as an instrumentality
of a crime. Trent v. Wade, #13-10960, 2015 U.S. App. Lexis 391 (5th
Cir.).
A tax assessor's field deputy entered a property
surrounding a home to gather data and reported finding marijuana. Officers then
entered the curtilage of the home, specifically a walk-out basement patio area
attached to the home and searched the area for marijuana. The unreasonable
search claims should not be dismissed as the knock-and-talk exception to the
warrant requirement did not apply. The officers allegedly saw a plaintiff only
after they entered the curtilage. If the facts were as alleged, the defendants
violated clearly established law. Covey v. Assessor of Ohio County, #13-1227,
2015 U.S. App. Lexis 1113 (4th Cir.).
A 22-year-old an was in his apartment at night
with two friends when police knocked on the door, yelled "police, search
warrant," and started to force open the front door. The man ran upstairs
to his bedroom, grabbed an unloaded shotgun and pointed it at the officers as
they followed him up the stairs. An officer shot him dead. The man's estate, in
a lawsuit claiming that the search was conducted in an unreasonable manner,
argued that there was no need to conduct it after dark because the officers
were only searching for loot of "modest value." It was also argued
that the man, when looking out the front window after the knocking, had seen
one of the officers holding an automatic rifle, dressed in a dark hoodie,
having long hair, earrings, a goatee, and sideburns, and yelled something like
"we are getting robbed again" before fleeing upstairs to get the
shotgun. A federal appeals court upheld summary judgment for the shooting
officer, agreeing that even if he may have exceeded proper constitutional
bounds in leading the search, given his undercover appearance, he was still
entitled to qualified immunity. There was insufficient evidence to support claims
against the county when the plaintiff's lawyer failed to authenticate an expert
witness report that could not be admitted into evidence absent a signed
affidavit. Estate of Brown v. Thomas, #14-1867, 771 F.3d 1001 (7th Cir. 2014).
The plaintiffs claimed that an officer illegally
entered the backyard of their property, going onto their deck without a search
warramt. A federal appeals court ruled that these actions violated the Fourth
Amendment as a matter of law, as the "knock and talk" exception to the
warrant requirement mandates that officers begin such encounters at the front
door, where there is an implied invitation to go. The U.S. Supreme Court
unanimously reversed the appeals court's determination that the officer was not
entitled to qualified immunity. A government official sued for civil rights
violations under Section 1983 is entitled to qualified immunity unless they
violated a statutory or constitutional right that was "clearly
established" at the time of the alleged conduct. There was no clearly
established precedent at the time that the "knock and talk" exception
to the warrant requirement had to begin at the front door. Carroll v. Carman,
#14-212, 135 S. Ct. 348, 190 L. Ed. 2d 311, 2014 U.S. Lexis 7430.
Occupants of a home sued two officers and a city
for a warrantless entry into the home's yard to investigate a tip that two guns
were in an abandoned vehicle on the property, in the course of which one of the
officers shot and killed the family dog. A federal appeals court found that the
officers had no warrant, no probable cause plus exigent circumstances, and had
not offered any other basis that would make their entry lawful. The officers
therefore violated the plaintiffs' Fourth Amendment rights and were not
entitled to qualified immunity as their actions, under the undisputed facts,
would not have been objectively reasonable. Harris v. O’Hare, #12-4350, 770
F.3d 224 (2nd Cir. 2014).
A deputy sheriff shot and killed a man in his
home, entering without a warrant while responding to a 911 call that the man
was sitting in his truck threatening to commit suicide. He had been holding a
loaded gun to his head. It was not a Fourth Amendment violation to enter the
home, as the deputy had an objectively reasonable belief that the decedent
would imminently injure himself. The deputy was entitled to qualified immunity
on excessive force claims, since the decedent was arrmed and moving toward him.
The deputy fired believing it necessary to protect himself and others. Claims
against the sheriff were also rejected, as was a claim to collect accidental
death benefits under a life insirance policy, as there was ample evidence that
the death was not accidental. Rice v. Reliastar Life Ins. Co, #13-30639, 770
F.3d 1122 (5th Cir. 2014).
An unannounced warrantless inspection of a barbershop
was conducted by officers from a county sheriff's office and employees of a
state licensing agency for the purpose of finding violations of licensing laws.
These actions went beyond a valid administrative inspection and constituted an
unreasonable search under the Fourth Amendment. Warrantless administrative
searches, it was clearly established, have to be narrowly tailored to serve the
administrative need that justifies it. In this case, officers blocked entrances
and exits to parking lots so no one could leave or enter, some team members
entered with guns drawn, some occupants were handcuffed, etc. The
"inspection" was conducted for approximately an hour as though it
were a criminal raid, even though there was no indication that there was any
threat to safety. Additionally, all barbers were properly licensed and the
business was complying with all safety and sanitation rules. The manner in
which the "supposed inspection" was conducted "was unreasonable
from its inception." Berry v. Leslie, #13-14092 2014 U.S. App. Lexis
17782, 25 Fla. L. Weekly Fed. C 438 (11th Cir.).
A private non-profit corporation that contracted
with a city to provide animal welfare services received complaints about
conditions at a local pet store. Employees of the company found, during a visit
to the store, that the animals there lacked water and that the air conditioning
was not working. They removed animals and business records from the store and
revoked the store's permit to be a pet dealer. The store sued the city, the
company, and its employees (in both their individual and official capacities),
claiming that the warrantless seizures violated the Fourth Amendment and that
removing the animals and revoking the store's permit without a prior hearing
violated procedural due process. A federal appeals court held that one
employee, who acted solely as a private animal-welfare officer, could not
assert a qualified immunity defense to a personal capacity claim. Two other
employees, however, acted both as private animal-welfare officers and also as
specially commissioned city police officers. They were granted summary judgment
on the basis of qualified immunity on the procedural due process claims, and
Fourth Amendment claims regarding the seizure of the animals. One was granted
summary judgment on claims regarding the seizure of the business records, while
a second employee was denied summary judgment on the same claims. Qualified
immunity was not available to any employees on the official capacity claims.
The city had a strong interest in immediately seizing the animals to protect
them from squalid and hot conditions without water, and the post-deprivation
hearing was an adequate remedy, so their removal did not violate due process or
violate the Fourth Amendment. The revocation of the store's permit violated due
process, however, as neither a pre-deprivation or post-deprivation hearing was
offered. United Pet Supply, Inc. v. City of Chattanooga, #13-5181, 2014 U.S.
App. Lexis 17900, 2014 Fed. App. 240P (6th Cir.).
A woman owned a property that she operated as an
animal shelter until an ASPCA investigation led to a search of that property,
her firing as the county dogcatcher, and her being sentenced for animal
neglect. The ASPCA investigator, although a private party, was able under state
law to obtain a warrant to search the property, and it directed officers to
enlist veterinarians or other persons or agencies authorized by the county
prosecutor to assist in the search. Deputy sheriffs entering the property were
accompanied by 40-50 undeputized animal rights volunteers who actually carried
out the search, with the deputies just there to keep the peace. A federal
appeals court upheld an award of damages in a lawsuit claiming unreasonable search
and negligence in failing to adequately train or supervise the amateur
searchers, resulting in needless property damage. The "incompetence of the
amateur searchers is apparent from the reports of the deputy sheriffs,"
the court noted. Petkus v. Richland County, #13-3700, 2014 U.S. App. Lexis
16054 (7th Cir.).
An officer who had followed a man's car to his
home asked him to "come here" just as he entered his parents' home,
but did not tell him he was under arrest. Five additional officers arrived and
started pounding on the door of the family home, and tried to force their way
in when a man opened the door. When the door was shut on them, they shattered a
window on the door with the butt of a shotgun, and then stuck a Taser through
the window, blindly firing it in the dart mode into the home and striking the
son twice. Officers then broke through the door, used the Taser on the son
again because he continued to struggle, and then allegedly dragged him outside
to the driveway, beat him with batons, kicked his head, used a Taser in the
stun mode on him, and called him a "black nigger," after which they
placed him in handcuffs, placing him under arrest. Because the son pled guilty
to resisting arrest and willfully fleeing an officer, his claims of excessive
force and unlawful entry were barred. The trial court, however, improperly
dismissed the parents' claims for illegal entry into their home and state law
intentional infliction of emotional distress, while the appeals court upheld
the dismissal of the parents' assault claims for lack of evidence. Hayward v.
Cleveland Clinic Found., #13-3132, 2014 U.S. App. Lexis 13802, 2014 Fed. App.
0157P (6th Cir.).
The mother of a seven year old girl
suffering from brain cancer grew marijuana plants to extract oil thought to be
helpful in treatment. Her father-in-law, a police officer, knew of this and
assisted her, supplying special light bulbs and periodically checking on the
crop. When the girl died, there were various family disputes about her
obituary, who was allowed at the services, the display of religious symbols,
and the disposal of her ashes, which the father-in-law tried to take. The
father-in-law and a fellow officer then obtained a search warrant for the house
based on the father-in-law's observation of marijuana plants in the home's
basement. No such plants were found during the search, as they had been thrown
away after the girl's death. The girl's mother sued the officers and city for
unlawful search, claiming that there were falsehoods in the affidavit. A
federal appeals court upheld the dismissal of the lawsuit. While it called the
father-in-law's behavior "atrocious," there was no allegation that he
knew that the marijuana plants were gone. An officer's motive in applying for a
warrant does not invalidate a warrant that is supported by probable cause.
While the affidavit was misleading by failing to reveal the father-in-law's
relationship to the mother, candor in revealing it would not have undermined
probable cause. Scherr v. City of Chicago, #13-1992, 2014 U.S. App. Lexis 12516
(7th Cir.).
Police mistook a Hispanic teenage boy and his
friends, who were in his own home, for two white male intruders being sought.
They pointed guns at them, entered the home without a warrant, and shot and
killed the family's pet dog. An excessive force claim could go forward, as the
evidence, viewed in the light most favorable to the plaintiffs, indicated that
they fully complied with the officers' orders at all times. An unlawful entry
claim could also go forward as the officers did not have probable cause in the
absence of any information to suggest that the boys were illegally on the
premises, and the lack of an objective basis for applying an emergency aid
exception, as well as disputed issues of fact as to whether any violence was
imminent. The officers were not entitled to qualified immunity. The shooting of
the dog did not amount to a deprivation of a familial relationship. Sandoval v. Las Vegas
Metro Police Dep't., #12-15654, 2014 U.S. App. Lexis 12395 (9th Cir.).
When an officer went directly through the back of
the plaintiffs' property in entering without a warrant to search for a suspect,
rather than beginning his visit at their front door, the "knock and
talk" exception to the warrant requirement was inapplicable. The
plaintiffs were entitled to judgment as a matter of law on their unlawful entry
claim as to the officer's entry into the property's curtilage. The jury
properly, however, returned a verdict in favor of the officer on a claim that
he unlawfully seized one of the plaintiffs, as there was evidence from which
they could rationally believe that the officer had reasonable suspicion
allowing him to momentarily question the man to determine his identity and
justifiably grabbed his arm to accomplish the stop. Carman v. Carroll,
#13-2371, 2014 U.S. App. Lexis 9039 (3rd Cir.).
Police did not exceed the scope of the
consent a homeowner gave them to be in the basement of his home to look for a
possible gas leak when they had to walk through a portion of the basement to
access another room. A search warrant subsequently issued was not without
probable cause since it was supported by an affidavit with details of the
officers' observations of allegedly illegal sawed off shotguns they had seen.
There was no evidence of either deliberate falsehood or reckless disregard for
the truth in obtaining the search warrant. Officers subsequently had probable
cause to arrest the homeowner on state law gun charges, despite the fact that
he was later acquitted. Fagnan v. City of Lino Lakes, #12-4038, 2014 U.S. App.
Lexis 4372 (8th Cir.).
A deputy pulled a female motorist over for an expired
vehicle registration sticker, and the date on the sticker was different than
that in the Secretary of State's records, so she was let go. The deputy was
later notified that the sticker was stolen, a felony offense, and went to the
woman's home to arrest her, being met there by a second deputy. The woman's
boyfriend, who owned the house, answered the door and refused to let the
deputies enter without a warrant. The deputies said that they smelled an odor
of burning marijuana from inside the home, and they attempted to enter, which
the boyfriend resisted. He was found with a half-burnt marijuana joint and was
charged with resisting or obstructing an officer, a charge that was later
dismissed. The trial court held that the officers were not entitled to
qualified immunity on false arrest and excessive force claims, as there had
been no exigency justifying a warrantless entry, which violated a clearly
established right. A federal appeals court reversed, stating that there was
"fractured" caselaw on whether detecting the smell of marijuana
justified a warrantless entry, so that it was not clearly established at the
time of the incident that a warrantless entry was not justified. White v.
Stanley, #13-2131, 2014 U.S. App. Lexis 4467 (7th Cir.).
Six Muslim individuals and a number of
Muslim-owned businesses, mosques, and a student organization claimed that the
New York City Police Department's surveillance of the Muslim community in New
Jersey following the attacks of September 11, 2001 violated the First and
Fourteenth Amendment by targeting Muslims solely on the basis of their
religion. The federal trial court dismissed the lawsuit. “The more likely
explanation for the surveillance was a desire to locate budding terrorist
conspiracies. The most obvious reason for so concluding is that surveillance of
the Muslim community began just after the attacks of September 11, 2001. The
police could not have monitored New Jersey for Muslim terrorist activities
without monitoring the Muslim community itself.” The court also stated that,
“Nowhere in the complaint do plaintiffs allege that they suffered harm prior to
the unauthorized release of the documents by the Associated Press. This
confirms that plaintiffs’ alleged injuries flow from the Associated Press’s
unauthorized disclosure of the documents. The harms are not ‘fairly traceable’
to any act of surveillance.” An appeal in the case is expected. Hassan v. City
of New York, #2-12-3401, 2014 U.S. Dist. Lexis 20887 (D.N.J.).
A woman suffering from a mental illness and
resisting officers' attempts to take her to a mental health facility claimed
that the officers violated her rights by entering her residence without a
warrant and shooting her five or six times when she threatened them with a
knife. The officers were justified in the initial entry into the home under the
emergency aid exception to the warrant requirement because they had an objectively
reasonable belief that she was in need of assistance. There were, however,
triable issues of fact as to whether the officers violated the Fourth Amendment
in forcing a second entry and thereby allegedly provoking a near fatal
confrontation, leading to an unnecessary use of deadly force that could have
been avoided. The appeals court also held that federal disability
discrimination statutes apply to arrests, and that there was a triable issue as
to whether the officers failed to reasonably accommodate her disability when
they forced their way into her room, arguably failing to take her mental
illness into account or to utilize generally accepted law enforcement practices
for peacefully resolving such a confrontation with a mentally ill person. Sheehan
v. City and County of San Francisco, #11-16401, 2014 U.S. App. Lexis 3321 (9th
Cir.).
The defendants were not entitled to summary
judgment on the basis of qualified immunity for alleged Fourth Amendment
violations stemming from omissions from an investigator's application for a
search warrant for the plaintiff's residence. The two alleged material
omissions from the affidavit were the identity of the plaintiff as the resident
of the property and the fact that surveillance of the property had not led to
any observation of criminal activity. These facts, if known but omitted, would
undermine probable cause for the search, altering the weight that would have
been given in assessing the information given by a confidential informant and
raising a disputed issue of fact. McColley v. County of Rensselaer, #12-2220,
2014 U.S. App. Lexis 1124 (2nd Cir.).
Two officers responded to a call concerning a
disturbance involving a person armed with a baseball bat in a neighborhood
known for gang violence. A man was seen running towards a residence and ignored
an order to halt. He did not appear to be holding a bat. He entered the gate of
a six foot fence enclosing his front yard. The officer believable that the man
had committed a jailable misdemeanor by disobeying the order to stop, and also
feared for his safety. He kicked open the gate. A woman was behind the gate and
was struck and injured by it. A federal appeals court found that the
warrantless entry was unconstitutional as the woman had the same expectation of
privacy in the curtilage of her home as in the residence itself, the pursued
man had only committed, at most, a minor offense, and there was no immediate
danger. The appeals court also found that the officer was not entitled to
qualified immunity. Reversing, the U.S. Supreme Court noted that courts
throughout the country were divided as to whether an officer who has probably
cause to arrest a fleeing misdemeanant can enter a home without a warrant in
hot pursuit. Without deciding whether or not the warrantless entry was
constitutional, the U.S. Supreme Court ruled that while it was possible that
the officer was mistaken in thinking that his actions were justified, he was
not "plainly incompetent," and was therefore entitled to qualified
immunity. Stanton v. Sims, #12-1217, 2013 U.S. Lexis 7773.
Police had a warrant to search one of two
apartments on the third floor of the building. Both had rear doors opening on a
common landing. Police allegedly used a battering ram to enter the wrong
apartment, and entered pointing guns and screaming, handcuffed two occupants
and "ransacked" the apartment, only leaving after 15 minutes when
another officer told them they were in the wrong apartment. The officers
claimed, however, that, while they did open the wrong door, they did not enter,
immediately realizing their mistake. An independent claims adjuster and a
police review authority employee found no damage except to the door. A jury
rejected the plaintiff's claims. A federal appeals court upheld this result,
noting that a search that results from an "innocent mistake" is not
unreasonable or a violation of the Fourth Amendment. The plaintiff's
alternative argument, that simply looking inside the wrong apartment would
constitute a search, was rejected. Balthazar v. City of Chicago, #12-3378, 2013
U.S. App. Lexis 22744 (7th Cir.).
Residents of a Detroit home claimed that masked
law enforcement agents, dressed in black, with their guns drawn, broke into the
residence, assaulting and terrorizing them. They were said to be part of a
multi-agency anti-drug trafficking effort in a specific area. When asked to
identify themselves, the masked men refused to do so, only saying that they
were "Team 1," according to the plaintiffs. In a lawsuit for unlawful
search and seizure, summary judgment was entered in favor of state and local
officials, and judgment as a matter of law was entered for the defendant
federal agents. The ruling was upheld as to the state and local defendants, as
there was undisputed testimony that they only provided perimeter security and
were not part of the entry team. The appeals court reversed as to the federal
agents, however, as there were genuine factual issues about their personal
involvement in the raid and their conduct in the house. The court found that
the circumstances of the raid, including the intentional identity concealment
and the assertion of an "I wasn't there" defense justified shifting
the burden onto the federal agents to prove their lack of personal involvement.
Burley v. Gagacki, #12-1820, 2013 U.S. App. Lexis 18577, 2013 Fed App. 263P
(6th Cir.).
A homeowner sought $9,462 in compensatory damages
that he claimed was needed to refurnish his home after an unreasonable
execution of a search warrant by four officers. He also sought damages for
emotional distress and punitive damages. A jury found for the plaintiff against
only one officer and awarded only $100. He then sought an award of $116,435 in
attorneys' fees as a prevailing party for 450 hours of work. A federal appeals
court upheld a denial of attorneys' fees, finding that the jury award on just
one of eight claims made was nominal and trivial and did not provide any public
benefit. Aponte v. City of Chicago, #12-3099, 2013 U.S. App. Lexis 18111 (7th
Cir.).
A town has reached an $11.6 million settlement
with a family whose home was raided without a search warrant by officers in
2003, with officers allegedly arresting five family members without probably
cause and beating them up. No convictions were obtained on any of the charges.
The plaintiffs claimed that one family member, a boy who was 17 years old at
the time of the incident, subsequently developed a mental illness as a result
of the beating and an alleged threat by one officer to kill him if he didn't
leave town. They claimed that he now requires 24 hours a day supervision. Ramos
v. Cicero, #1:04-cv-02502, U.S. Dist. Ct. (N.D. Ill.).
A bankruptcy court ordered a debtor's
home vacated and federal Marshals were authorized to remove the debtor's son
who was living there from the residence. He was patted down, removed, the house
was searched, and he was not allowed to reenter to claim his belongings. A
federal appeals court upheld the dismissal of the son's lawsuit against federal
employees as he did not properly plead his case for violation of his
constitutional rights against unreasonable searches and seizures. Claims
against a city and its police officers in their official capacities were
properly dismissed. Even if the bankruptcy court's order had been invalid, the plaintiff
had not shown any direct link between a city policy or custom and the alleged
violation of his rights. Alexander v. Hedback, #12-2834, 2013 U.S. App. Lexis
13302 (8th Cir.).
A woman claimed that county employees conspired
with the father of her child, a sheriff's deputy, to obtain an invalid warrant
lacking probable cause to search her house, to use excessive force during the
execution of that warrant, and then to arrest her without probable cause. The
unlawful search and false arrest claims were rejected, as there was probable
cause to search her home and arrest her, based on allegations that she had
fraudulently used the deputy's personal credit card to make purchases. However,
as there was evidence that she did not pose a threat to officer safety and was
not resisting arrest, her excessive force and conspiracy claims survived and
should be decided by a jury. She claimed that the defendants pointed weapons at
her, grabbed her by the arms and shoulders, and pushed her in the back down a
hallway, before handcuffing her in an extremely tight manner. Cameron v. Craig,
#11-55927, 2013 U.S. App. Lexis 7563 (9th Cir.).
A man accused by a male teenager of kidnapping
and raping him sued investigating police. He claimed that they barged into his
hotel room without consent or a search warrant and seized his wallet and other
items. He also claimed that they did this after illegally obtaining his video
rental records from a video store in violation of the Video Privacy Protection
Act, 18 U.S.C. 2710 in an attempt to collaborate the teenager's story that he
had spent some time in the hotel room watching specific videos. Criminal
charges against the man are currently pending in state court. A federal appeals
court ruled that the trial court improperly dismissed the unlawful search and
privacy claims. The privacy claims were against the video store. The appeals
court noted that, while constitutional claims might be litigated during the
criminal trial, money damages were not available in that proceeding. The trial
court should have stayed the proceeding rather than dismissed the case, because
otherwise his claims might be time barred by the time the prosecution was
concluded. Gakuba v. O'Brien, #12-3345, 2013 U.S. App. Lexis 5866 (7th Cir.).
The U.S. Supreme Court, in a 5-4 decision, upheld
a decision of the Florida Supreme Court suppressing evidence of marijuana
plants and drug trafficking found in a residence during a search conducted with
a search warrant. The search warrant was obtained on the basis of the fact that
a drug-sniffing dog that police brought onto the front porch of the defendant's
home alerted there. While the police officers could, without a warrant,
approach the home and knock on the door, since any private citizen could do
that, their bringing of a trained police dog to explore the area around the
home in the hopes of discovering incriminating evidence was a Fourth Amendment
search without probable cause, as there was no customary invitation to bring
such a dog onto the porch, which was part of the home's curtilage, entitled to
as much protection from search as the home itself. While this was a criminal
case, the same principles would apply in a civil rights lawsuit. Florida v.
Jardines, #11-564, 2013 U.S. Lexis 2542.
Federal immigration authorities entered into a $1
million settlement agreement with 22 Latinos whose rights were allegedly
violated when agents entered private homes in early morning raids without
search warrants looking for immigration law violations. The plaintiffs included
U.S. citizens, permanent residents, and some whose immigration status was in
dispute. The settlement also requires the adoption of a new policy requiring
that agents not enter private homes without search warrants. The settlement
also mandates expanded use of Spanish speaking agents who can communicate in
that language with occupants of a residence when necessary, and bars the use of
evidence obtained in the raids in immigration proceedings. Aguilar v.
Immigration and Customs Enforcement, #07-Civ.-8224, U.S. Dist. Ct. (S.D.N.Y.
April 4, 2013).
A police officer was sued on a motorist's claim
that he violated her Fourth Amendment rights by reading a piece of her mail
while he searched her car with her consent following a traffic stop. It
violates a person's rights when an officer reads their private papers, the text
of which was not in plain view, while conducting a search based on generalized
consent to search an area in which the letter was found. The officer was
entitled to qualified immunity, however, as this right was not yet clearly
established at the time. Winfield v. Trottier, #11-4404, 2013 U.S. App. Lexis
4635 (2nd Cir.).
Officers who entered a residence in response to a
report of domestic violence attempted to arrest a man suffering from bipolar
disorder who was fighting with his brother. During the arrest, the man
initially resisted and was armed with a baseball bat. An officer used a Taser
three times in the dart mode after he was ordered to drop the bat. The second
use of the Taser caused him to drop the bat, and the third caused him to fall
to the ground. Two officers then sat on his back. The officer with the Taser
then activated it in the dart mode a fourth time, and then used the Taser in
the stun mode against the arrestee six more times. After the tenth use of the
Taser, the arrestee appeared to be unconscious, went into cardiac arrest and
died. Some officers claimed that the arrestee was continuing to resist efforts
to put him in handcuffs during the last seven deployments of the Taser, that he
was able to regain possession of the bat, and that he tried to bite officers
when he again lost possession of the bat. One officer, however, testified in
her deposition that the arrestee had stopped resisting, that officers were then
sitting on his upper, lower, and middle body, and that he was rigid and kept
his hand underneath his body. Rejecting the claim of the officer who deployed
the Taser for summary judgment, the court stated that, "[i]t is an
excessive and unreasonable use of force for a police officer repeatedly to
administer electrical shocks with a Taser on an individual who no longer is
armed, has been brought to the ground, has been restrained physically by
several other officers, and no longer is resisting arrest." Since officers
using "unnecessary, gratuitous, and disproportionate force" do not
act in an objectively reasonable manner, qualified immunity was not available
as a defense for the last seven uses of the Taser. Qualified immunity was
granted, however, for the first three uses of the Taser and for the warrantless
entry into the residence, which was supported by probable cause. Meyers v.
Baltimore County, #11-2191, 2013 U.S. App. Lexis 2282, 2013 WL 388125 (4th
Circuit).
A homeowner sued an officer for his warrantless
entry into her front yard. She claimed to have suffered injuries when he kicked
down the yard's front gate to enter in pursuit of a fleeing suspect who had, at
most, committed a misdemeanor offense of disobeying an officer's lawful order
to halt. Overturning qualified immunity for the officer, the appeals court
ruled that a reasonable officer should have known that his warrantless entry
into the curtilage of the home under these circumstances amounted to an
unconstitutional search not justified by exigent circumstances or the emergency
exception to the warrant requirement. Sims v. Stanton, #11-55401, 2012 U.S.
App. Lexis 24803 (9th Cir.).
Police officers executed search warrants for
narcotics on two homes based on information from a confidential informant and
their own investigation. Rejecting excessive force claims, the appeals court
found that the officers drawing their guns and using handcuffs on the occupants
of the homes during the searches could be justified by the officers' reasonable
concern for their safety, and could have believed that the amount of force used
was legal given the dangers involved in a drug raid. The searches conducted
were also reasonable and based on probable cause, given the information from
the confidential informant, the evidence of controlled buys of drugs, and
substances found in a garage on the premises. The residents did not have their
rights violated by being detained during the search and there had been probable
cause to arrest some of them. Marcilis v. Township of Redford, #11-1073,
2012 U.S. App. Lexis 18707, 2012 Fed. App. 0310P (6th Cir.).
An officer obtained a no-knock search warrant for
a couple's residence based on a woman's call to a city hotline stating that her
sister was a felon possessing a gun unlawfully. The caller, however, had not
seen her sister or the gun in five years and the officers stated it as five
days on the warrant application. He was not entitled to qualified immunity on
an unlawful search claim. A reasonable jury could, under these circumstances,
find that the officer knowingly or with reckless disregard made false
statements in his warrant application. During the search of the residence, the
sleeping couple was woken by the no-knock entrance, and the husband was shot
twice. Betker v. Gomez, #11–3009, 2012 U.S. App. Lexis 18636 (7th Cir.).
A police officer made reasonable efforts to
obtain a search warrant for a residence based on information from a gang
informant, and the warrant was supported by probable cause. Because of the existence
of multiple living units in what was mistakenly believed to be a single family
residence, however, and the failure of the warrant to specify which unit to
search, officers entered a unit occupied by someone other than the suspect, a
woman who was over seven months pregnant. The officers, from the fact that they
first found the front of the bottom floor occupied by an office, and saw that
they could not get to the rest of the building from there, should have realized
that the building was not a single family residence. They could see that there
were separate doors for first and second floor apartments, and should have
called off the search, the court reasoned. Instead, they searched for an hour
before acknowledging that they were in the wrong place. The search violated the
woman's Fourth Amendment rights, and the trial court improperly granted summary
judgment dismissing her unlawful search claims. Guzman v. City of Chicago,
# 08-2172, 565 F.3d 393 (7th Cir. 2012).
A municipal ordinance required motel and hotel
owners to establish and maintain extensive records about their guests
(including names and numbers of guests, method of payment, duration of stay,
license plates of guests' vehicles, etc.) and to allow police to inspect them.
The motel and hotel owners could not claim that this violated their Fourth
Amendment rights against unreasonable search and seizure. The information
required was about their guests, not about the business owners or operators, so
they had no privacy right to assert. Further, while the records created were
"papers" arguably protected by the Fourth Amendment, inspection of
them by police did not amount to a seizure. Patel v. City of Los Angeles,
#08-56567, 2012 U.S. App. Lexis 14613 (9th Cir.).
DEA agents who executed a search warrant at a
mobile home occupied by suspected drug dealers allegedly pointed weapons at and
handcuffed two adults and two children who were present. They also pushed one
of the adults onto the floor. Rejecting assault and battery claims against the
agents for the force used against the adults, an appeals court found that the
dangerous situation of carrying out a search on premises occupied by drug
traffickers justified the force used. There were genuine issues of material
fact, however, as to whether the force used against the 11 and 14 year old
children was reasonable. The lawsuit was brought under the Federal Tort Claims
Act. Avina v. U.S., #11-55004, 681 F.3d 1127 (9th Cir. 2012).
Officers allegedly detained a man at a gas
station, pointing a gun at him and handcuffing him. They then drove him to his
apartment where he claimed they planted a gun and some marijuana and proceeded
to conduct a search. When he refused to sign a consent to the search, an
officer hit him in his ribs with his fists and tried to choke him, according to
the plaintiff. Qualified immunity was not available on the excessive force
claim, regardless of whether the injuries suffered were minimal. No amount of
force was justified for the purpose of coercing a consent to a search. Hemphill
v. Hale, #11-3116, 677 F.3d 799 (8th Cir. 2012)
A state trooper compelled a female motorist,
stopped for failing to dim her lights, to perform field sobriety tests. He
stated that he did so because her pupils were constricted, and then placed her
under arrest for DUI. Subsequently, a urine test showed that she had not been
drinking, and the charges were dismissed. A federal appeals court stated that
this, combined with a videotape indicating that she had performed the field
sobriety tests with only minor mistakes and no real difficulty, showed that the
officer may have lied about her pupils being constricted. A reasonable jury
could find that there was no reasonable suspicion to conduct the field sobriety
tests or place the motorist under arrest. Qualified immunity for the officer
would be inappropriate. Green v. Throckmorton, #10-4487, 681 F.3d 853
(6th Cir. 2012).
When protesters gathered outside a meeting of the
International Monetary Fund (IMF) and vandalized the lobby of the hotel where
delegates were staying, a photojournalist took pictures of the mayhem. A county
police officer reviewing the hotel's security tapes found out that she had been
present taking pictures. Deputized as a federal marshal, he helped obtain a
search warrant for her home, where it was believed her computer equipment
containing the photos of the protesters would be found. During the execution of
the warrant, her computer hard drive was seized. She sued the federal
government, claiming that the search violated the Privacy Protection Act, 42
U.S.C. Sec. 2000aa et seq. She sought damages for the search, although she was
neither arrested nor charged. The appeals court found that a suspect exception
to the Act applied to the claim because the circumstances provided probable
cause to believe that she was involved with criminal activity with vandals at
the hotel. The mere fact that the officer knew that she was a journalist did
not destroy probable cause. Sennett v. United States, #11-1421, 667 F.3d 531
(4th Cir. 2012).
A no-knock entry was made into a house with a
battering ram to execute a search warrant based on a confidential informant's
tip that methamphetamine was being sold from the residence. After no drugs were
found during the search, the occupants sued the detective who obtained the
warrant and the city for the failure to knock and announce the officers'
identity and purpose before entering the home. The appeals court ruled that it
was clearly established that neither safety concerns based on generalities
about the dangerousness of drugs dealers nor the disposable nature of drug
evidence were enough, standing alone, to justify that type of entry. The
detective, therefore, was not entitled to qualified immunity. The court ruled
that the city also could be held liable, based on the plaintiffs' claim that
its officers customarily used no-knock entry as their default method of
executing all drug-related searches, and that this was consistent with the
police department's policies. Bishop v. Arcuri, #11-50010, 2012 U.S. App. Lexis
4978 (5th Cir.).
A deputy sheriff responded to a 911 call
indicating concerns about the welfare of a five-year-old child in the care of a
mother said to be drunk and "acting weird." The mother initially
prevented the deputy from entering the house to check on the child's safety,
attempting to slam the door on him. She later allegedly consents to his entry
and agrees to restrain her growling dogs. He discovers that the child has a
fever which is dangerously high. When he said he might call child welfare
authorities if she did not summon someone better able to take care of the
child, she yelled “I have a gun, I knew you were a cop out there, if I was
going to answer the door and you would have come in, I would have shot ya.” The
officer handcuffed her, considering this a threat. A jury rejected a claim for
unlawful warrantless entry. A federal appeals court upheld this result, and the
jury instructions. The court noted that a "majority of the circuits place
the burden of proof on the plaintiff in a Sec. 1983 action for a warrantless
arrest or search, with some of those circuits imposing the burden of production
on the defendant. A minority of the circuits place the burden of proof on the
defendant." This court agreed with the majority. Der v. Connolly,
#11–1048, 666 F.3d 1120 (8th Cir. 2012).
The U.S. Supreme Court ruled that officers were
entitled to qualified immunity and could not be held personally liable for
obtaining a potentially invalid overly broad warrant when they could reasonably
have believed that the warrant's scope was supported by probable cause. In this
case, any arguable defect in the warrant would have become apparent only based
on a close examination of the warrant application and comparison of the
supporting affidavit to the warrant's terms to determine whether the affidavit
sufficiently established probable cause to search for all items listed in the
warrant. In this case, a shotgun was confiscated while executing a search of a
home under a warrant for "all guns and gang-related material." The
"fact that a neutral magistrate has issued a warrant is the clearest
indication that the officers acted in an objectively reasonable manner."
The Court concluded that the "officers' judgment that the scope of the
warrant was supported by probable cause may have been mistaken, but it was not
'plainly incompetent.'" Messerschmidt v. Millender, #10-704, 2012 U.S.
Lexis 1687.
Police were entitled to qualified immunity for
their warrantless entry into a home based on exigent circumstances and the
totality of the circumstances. They were investigating reports that a student
who lived there had written a letter with a threat to "shoot up" the
high school he attended. The mother and son inside initially ignored the officers'
knocks on the door, and she hung up on an officer when he called on the phone.
The mother and son then stepped outside, and the mother ran inside, followed by
her son, and refused to let them in when they asked whether any guns were
present in the home. The officers responded by following them inside, and
ultimately concluded that the rumors of the threat were false. Under these
circumstances, a reasonable officer could believe that he had a right under the
Fourth Amendment to enter the home without a warrant when there was a
"reasonable basis for concluding that there is an imminent threat of
violence." Ryburn v. Huff, #11–208, 2012 U.S. Lexis 910. 2012 WL 171121.
The operator of a mining quarry sued for
unreasonable search and seizure in response to numerous warrantless state
administrative inspections of its facilities carried out after anonymous
information was received alleging that the mine was violating state
regulations. Rejecting the plaintiff's claim, the court ruled that the
inspections, while warrantless, were not "suspicionless," since
inspectors are only allowed to enter a business premises when they have
received complaints of an actual safety or health regulation violation.
Lesueur-Richmond Slate Corporation v. Fehrer, #11-1112, 2012 U.S. App. Lexis
786 (4th Cir.).
Police responded to a 911 call concerning a
schizophrenic, bipolar, and suicidal man who had stopped taking his medication
and was threatening to harm his mother. The officers weren't liable for
shooting and killing him when he came towards them armed with knives as they
entered his locked and barricaded bedroom. They acted in reasonable
self-defense, and they were entitled to qualified immunity on their warrantless
entry into the bedroom based on their belief that there were exigent
circumstances justifying their entry because the man constituted a threat to
himself. Rockwell v. Brown, #10–11053, 2011 U.S. App. Lexis 24980
(5th Cir.).
A police detective sought and obtained search
warrants for the homes of several gang members, based on information that the
gang was involved in a drive-by shooting and had a practice of storing the
weapons from such shootings at the residences of members not involved in an
incident. The affidavit for one of the warrants, however, failed to disclose
that the gang member living there had been in custody continuously since a time
prior to the shooting taking place. A jury could reasonably conclude that the
detective knew about this fact from reading the member's rap sheet and
recklessly or deliberately failed to disclose it when applying for the warrant.
The detective could be liable for the search. Additionally, even "if we
were to conclude that cause existed for a search, there would still be no basis
for authorizing night-time service. A nighttime incursion by a SWAT force is a
far more serious occurrence than an ordinary daytime intrusion . . . and
therefore requires higher justification beyond mere probable cause to
search." Bravo v. City of Santa Maria, #09-55898, 2011 U.S. App. Lexis 24383
(9th Cir.).
Armed with an arrest warrant for a drug dealer,
officers from a joint federal-state task force enter a residence, believing
that the suspect is within. Doing so over the owner's objection, they did not
find the suspect on the premises. In a civil rights lawsuit against the federal
officers, they were entitled to qualified immunity on a Fourth Amendment
unlawful search claim. No Fourth Amendment violation occurs if officers enter a
third party's home under the reasonable belief that the target named in the
arrest warrant resides at the dwelling in question and will be present at the
time of the entry." Solis-Alarcon v. United
States, #09-2406, 2011 U.S. App. Lexis 23501
(1st Cir.).
Two undercover animal services officers visited a
couple's home, where they observed some puppies that the couple advertised in a
local newspaper. The couple had bred their two pet bulldogs to produce the
puppies for sale. Uniformed animal service officers then knocked on the door,
entering and seizing all nine of the dogs, claiming, erroneously, that the
couple had violated an ordinance about breeding dogs. All dogs were taken to an
animal shelter, where they had microchips placed in them, and the adult dogs
were neutered. The couple was asked for over $1,000 for the return of the dogs.
It turned out that the couple was not violating the ordinance, as they were not
operating an unlicensed Class A kennel, as defined in the ordinance. The
initial entry by the undercover officers did not violate the Fourth Amendment,
as it was pursuant to the couple's newspaper ad inviting the public to come
inspect the dogs for sale. The subsequent entry by the uniformed officers
without a warrant, for law enforcement purposes, however, raised valid Fourth
Amendment claims. The officers may have also violated procedural due process by
depriving the couple of their property, the dogs and the ability to breed them,
without written notice of the alleged violation on which the seizure was based.
O'Neill v. Louisville/Jefferson County Metro Government, #10-5699,
2011 U.S. App. Lexis 22530 (6th Cir.).
A man arrested for burglary told an officer that
his alleged accomplice had a girlfriend at whose apartment the stolen goods
from 18 burglaries had been stored. After an officer obtained a search warrant
and used it to seize various items at her apartment, the girlfriend sued,
claiming that the warrant affidavit was insufficient to provide probable cause.
The defendant officer was entitled to qualified immunity on the issue of
whether the affidavit sufficiently provided probable cause, as there was no
evidence that a reasonable officer would have noticed the alleged
discrepancies, such as the fact that only four of the categories of property
described to be seized could be linked to the two burglaries described in the
warrant. He was not entitled to qualified immunity, however, on claims that
items were seized that were not described with sufficient detail in the
warrant. Some items described were common household items, giving the officer no
ability to distinguish between allegedly stole goods and other goods belonging
to the girlfriend. As an example of this, the warrant authorized the seizure of
cameras without specifying the makes or models of the stolen cameras, although
these details were easily available in the reports on the burglaries. The court
stated that it simply requires "additional details, if they are available,
to help distinguish between contraband and legally possessed property."
Wheeler v. City of Lansing, #10-1128/, 660 F.3d
931 (6th Cir. 2011).
When police attempted to stop a teen motorist for
driving without taillights, he fled and hid inside his parents' house two
blocks away. An officer who allegedly forced his way into the home was not
entitled to qualified immunity since no reasonable officer could believe that
there were exigent circumstances to justify a warrantless entry. "The
intended arrest was for a traffic misdemeanor committed by a minor, with whom
the officer was well acquainted, who had fled into his family home from which
there was only one exit." Mascorro v. Billings, #10-7005, 656 F.3d
1198 (10th Cir. 2011).
In a lawsuit claiming that there was a practice
of abusive and unlawful raids of Latino homes by agents of the U.S. Immigration
and Customs Enforcement (ICE), high level supervisory personnel were entitled
to qualified immunity since the plaintiffs failed to assert any plausible basis
to impose liability on them for the purported abuses. Many allegations in the
complaint were merely conclusory, and did not adequately set forth a theory of
possible liability on the part of the supervisors, such as their knowledge of
or acquiescence in unconstitutional conduct. Argueta v. US Immigration and
Customs Enforcement, #10-1479, 643 F.3d 60 (3rd Cir. 2011).
An elderly woman visiting her son's house
accepted delivery of a package while sunning herself in the front yard. The
package was a shipment of ketamine that sheriff's deputies were following,
allowing a controlled delivery. When she took the package into the residence,
leaving it inside unopened, and returned outside, a team of deputies arrived to
execute a search warrant. One of them allegedly forced her to the ground,
placing a foot on her back for ten minutes, after which she was detained inside
on a couch inside for two hours. Her unlawful search and excessive force claims
were both rejected. The officers had implicit authority, based on the search
warrant, to temporarily detain occupants of the residence, including visitors.
Croom v. Balkwill, #09-16315, 645 F.3d 1240 (11th Cir. 2011).
A man claimed that his wife and son conspired
together to have him arrested for, among other things, illegal possession and
sale of Oxycontin, knowing that he lawfully possessed the drug as prescription
medication for various illnesses. During execution of an arrest warrant for
domestic violence and firearms offenses, a search was conducted during which a
quantity of the drug was seized. He was released from custody when the status
of the drug as his legal medication was shown. There was nothing in the arrest
warrant, however, which would have caused a reasonable officer to question
whether the warrant was valid, Moore v. City of Desloge, #10-2095, 647 F.3d 841
(8th Cir.).
After police knocked at an apartment door, in
response to a child's 911 call reporting that someone is beating her mother,
they heard screams from a woman on the roof of the building. Through a window,
they saw a man running from a bedroom. Believing that a suspect was on the back
porch of the building, they make a forced entry into an apartment, which turned
out to be the apartment of the man's mother, and unconnected with the screams
on the roof. The mother sued for illegal entry, but the officers, who
reasonably believed that they were doing what they needed to do to apprehend a
suspect, were not liable. The jury properly found for the defendant officers,
and the trial court properly instructed the jury on the plaintiff bearing the
burden of proof in the unlawful search case. Bogan v. City of Chicago,
#10-2170, 2011 U.S. App. Lexis 13667 (7th Cir.).
Even if it was true that a teacher
inappropriately touched a child's breasts while lifting her up in class, this
was not enough to justify an officer's obtaining of a search warrant for child
pornography in the teacher' home. The officer had no evidence of the teacher's
possession or attempted possession of child pornography, or use of home
computers to access such materials, so the search of the home and seizure of
computers was not supported by probable cause. The officer was still entitled
to qualified immunity from liability, however, due to a lack of clear precedent
on the issue. Dougherty v. City of Covina, #09-56395, 2011 U.S. App. Lexis
16879 (9th Cir.).
A federal appeals court overturned a grant of
qualified immunity to a child services caseworker who entered a couple's home
and removed their children to state custody. There were factual issues as to
whether the caseworker recklessly or knowingly made false statements in his affidavit
submitted to a court to obtain an order to enter the home. There were also
issues concerning whether the caseworker was confused as to which children
actually lived with the plaintiffs. Further proceedings were ordered on
unlawful search and seizure claims, as well as procedural and substantive due
process claims. Southerland v. City of New York, #07-4449, 2011 U.S. App. Lexis
11942 (2nd Cir.).
In an unlawful search and seizure lawsuit over
officers' warrantless search of a man's home and vehicle following his arrest,
officers were properly denied qualified immunity. There were genuine issues of
fact as to whether the search of his home, which they characterized as a
protective sweep, lasted for ten minutes or three hours, and whether they had consent
to enter his home. There was also a genuine issue as to whether they had
probable cause to search his vehicle, which they might not have connected to
him prior to their search of his home. Asher v. McClure, #10-13751, 2011 U.S.
App. Lexis 8247 (Unpub. 11th Cir.).
A man claimed that officers unlawfully exceeded
the scope of their search warrant when they searched his residence. A federal
appeals court rejected this claim, finding that a neutral magistrate judge
reviewed the affidavits supporting the warrant and properly found probable
cause, and that there was no evidence that the scope of the search permitted
under the warrant was exceeded. Grimes v. Thomason, #10-10760, 2011 U.S. App.
Lexis 4782 (Unpub. 5th Cir.).
Officers could have reasonably believed that
probable cause existed to search a suspect's home without a warrant. He exited
the residence without the gun he was thought to have taken inside. The officers
therefore had grounds to search for the gun, which they believed was evidence
of a crime. They could have also reasonably feared that someone still in the
house could use the weapon against them, giving them exigent circumstances to
conduct the search for their own safety. Flores v. City of Maywood, #09-55046,
2010 U.S. App. Lexis 17630 (Unpub. 9th Cir.).
Officers went to a house to arrest a man under
three warrants for various minor offenses. Once at the house, the officers
found the back door open, and no furniture inside or any other indication that
anyone was living there, but did find the suspect unclothed in a bathroom.
While dressing, the suspect suddenly lunged towards a second-story window, and
an officer used her Taser on him. He was hit by the Taser's two probes, but
continued through the window and subsequently died of his injuries. A federal
appeals court rejected both unlawful entry and excessive force claims. From the
appearance of the house, the officers had an objectively reasonable basis to
believe the house was abandoned, so they had no duty to knock and announce
before entering. The officer was entitled to use force such as the Taser when
it appeared that the suspect was making an active attempt to evade arrest.
McKenney v. Harrison, #10-1407, 2011 U.S. App. Lexis 6248 (8th Cir.).
A police officer was at a woman's
apartment at the time her ex-boyfriend repossessed some of his property. The
woman sued the officer, among others, asserting a claim for illegal search. The
officer was at the scene to maintain the peace and there was a question as to
whether he took an active role in the repossession or remained neutral. At
trial, the instructions to the jury, which ruled for the officer, improperly
framed the question of whether the officer acted under color of state law as
limited to the issue of whether or not he ordered the door to the residence to
be opened, when the proper legal standard was the totality of the
circumstances, requiring further proceedings. Harvey v. Plains Twp. Pol. Dep't,
#09-1170, 2011 U.S. App. Lexis 6236 (3rd Cir.).
Using a jackhammer to break up concrete during a
search authorized by a warrant for a body was reasonable. A federal appeals
court rejected a proposed "least possible destructive means" legal
standard for conducting such searches. The lawsuit was brought by the landlord
of the property, which had been rented to a suspect in a woman's disappearance.
The federal appeals court commented that "it seems quite unfair to make an
innocent, unlucky landlord absorb the costs associated with the execution of a
search warrant directed at a criminally-inclined tenant," but suggested
that the landlord pursue available state remedies. He did not, however,
"have grounds to make a federal constitutional claim under the Fourth or
Fourteenth Amendment or the Takings Clause of the Fifth Amendment."
Johnson v. Manitowoc County, #10-2409, 2011 U.S. App. Lexis 4648 (7th Cir.).
The owners and operators of a
gun shop in Los Angeles sued the city, its police department, and a number of
individual officers for allegedly conducting an illegal search of the business.
After the plaintiffs allegedly purchased illegal firearms from the police
during a sting operation, officers obtained search warrants for their business
and residence and found illegal firearms and ammunition at both locations. The
plaintiffs did not challenge the validity of the warrants at their criminal
trial and, as part of a plea bargain, pled guilty to one count of possession of
an illegal assault weapon found at their residence. Their subsequent lawsuit
for illegal search and seizure was barred, a federal appeals court ruled, as
its success would necessarily imply the invalidity of their criminal
convictions, which had not been set aside. Szajer v. City of Los Angeles,
#08-57010, 2011 U.S. App. Lexis 2796 (9th Cir.).
Police who seized a paint sprayer alleged to be
stolen from a pawn shop during business hours without a warrant did not violate
the Fourth or Fourteenth Amendment, since the item was in plain view. The trial
court did not have to find that the alleged victim of the theft was, in fact,
the owner of the item in order to justify the item's seizure under the plain
view doctrine. PPS, Inc. v. Faulkner Cty., Ark., #09-3540, 2011 U.S. App. Lexis
577 (8th Cir.).
Officers went to a student's home to investigate
suspicions that he planned to "shoot up" the school. Encountering his
mother at the door, two of them were denied permission to enter, but did so
anyway when she went inside to get her husband, following her in. Two other
officers who had not been close enough to hear the conversation also went in.
After a discussion with the student and his family, the officers decided that
there was no threat to the school from the student. In a lawsuit over the
alleged unlawful warrantless entry without consent, only the two officers who
had not heard the refusal of consent were entitled to qualified immunity, as
only they could reasonably believe that consent to entry had been given. No
exigent circumstances justifying a warrantless unconsented entry existed. Huff
v. City of Burbank, #09-55239, 2011 U.S. App. Lexis 493 (9th Cir.).
Police officers were not entitled to qualified
immunity for executing a search warrant on a residence for evidence of child
pornography in a no-knock manner. There were no circumstances indicating danger
to the officers in executing the warrant, and the fact that some residents had
permits to carry concealed weapons only showed that they were citizens in good
standing who passed a background check. Bellotte v. Edwards, #10-1115, 2011
U.S. App. Lexis 520 (4th Cir.).
A county official's failure to provide any notice and
an opportunity to respond to the estate before he entered the home of a
recently deceased man and removed personal property, some of which was sold and
some of which he stored violated due process, when there were no extraordinary
circumstances justifying these actions. The official, the county public
administrator, was, however, entitled to qualified immunity for making a
warrantless entry into the home after being informed of the death, for the
purpose of securing the property of the estate, although not for taking it
away. Mathis v. County of Lyon, #08-17302, 2011 U.S. App. Lexis 1956 (9th
Cir.).
A city in Texas entered into an agreement with a
professional football team to become the owner of a new sports stadium leased
by the team. The city reviewed and modified a proposed traffic management plan
for the area around the stadium. The owners of a 348-unit building next to the
stadium sued the city for unreasonable seizure in violation of the Fourth
Amendment, regulatory and physical "takings" in violation of due
process, and private nuisance, based on residents' delays in entering or
leaving the building due to the large numbers of pedestrians who converge on
the stadium during events, and restrictions on vehicular traffic on the street.
The trial court granted summary judgment to the city. Affirming this result, a
federal appeals court found that the plaintiff had failed to show any
"seizure" that amounted to a meaningful interference with its
possessory interests in its property. The inconveniences suffered due to the
crowds and noise attracted by the stadium did not amount to a seizure under any
prior Fourth Amendment caselaw. Enclave Arlington Associates Limited
Partnership v. City of Arlington, Texas, #09-11202, 2010 U.S. App. Lexis 23637
(Unpub. 5th Cir.).
A town ordinance authorized police to post a
bright orange sticker at the front entrance of any residence found to have
hosted an "unruly gathering," after intervening and dispersing it for
violations of the law such as excessive noise, obstruction of streets, illegal
parking, public drunkenness or urination, or the serving of alcohol to minors.
The notice informs those who own or reside in the building that, should police
intervention be required at that location in response to another violation, the
owners and residents, the sponsors of the gathering, and any guests who cause a
nuisance will be held jointly and severally liable. Landlords are informed of
the notice by mail. In a lawsuit challenging the constitutionality of this
measure, a federal appeals court found that it was unorthodox but did not
offend the constitution or state law. URI Student Senate v. Town of
Narragansett, #10-1209, 2011 U.S. App. Lexis 141 (1st Cir.).
A group of officers, including a SWAT team,
gathered one evening to execute a no-knock search warrant at a residence
believed to be the site of a marijuana growing operation. They used a ram to
break down the door, aggressively yelled as they entered, and forcibly removed
a female resident from the couch, placing her roughly on the floor. Her husband
was tackled from behind, handcuffed, placed in leg restraints, and tasered. He
also claimed that he was repeatedly punched and kicked at various times. No
evidence of drugs was found, although the officers allegedly ransacked the
home, smashed holes in walls, smashed two doors, and "ate some candy and
drank a bottle of soda found in one of the bedrooms." The homeowners also
claimed they lost several pets because of the officers' actions, and that they
suffered damage to a dresser, a backyard fence, a waterbed, and a
rocker/recliner. They sued for unreasonable execution of the search warrant and
excessive use of force, as well as lack of probable cause for the search. The
defendants moved for summary judgment, and while they asked for qualified
immunity, their papers only discussed, in any detail, the probable cause and
excessive force claims, making no mention of the claim for unreasonable
execution of the warrant. The trial court therefore denied summary judgment on
the unreasonable execution claim. A federal appeals court held that this denial
was not immediately appealable, as it did not rule on the issue of qualified
immunity on that claim, but simply denied summary judgment. Peay v. Murphy,
#09-4198, 2010 U.S. App. Lexis 20038 (Unpub. 10th Cir.).
Officers concerned about the well-being of the
young daughter of a man estranged from his wife made a warrantless entry into a
home to check on her. The wife had gone to the home to pick up the daughter for
court ordered visitation, received no response to the doorbell, and contacted
the police after seeing a man inside she thought was her husband. Police were
concerned because of past domestic disputes involving the couple, and consulted
a judge, who told them they could enter. The man and his daughter were not in
the home, and he later sued the officers for their warrantless entry. The
federal appeals court rejected the argument that the officers' warrantless
entry was justified by their "community caretaking" function, ruling
that this doctrine is best viewed as applying in the context of vehicle
searches, rather than home searches, since there is a lesser expectation of
privacy when it comes to vehicles. The court also ruled, however, that the
officers were entitled to qualified immunity, since the law on the subject was
not clearly established in the 3rd Circuit at the time of the search, and some
courts had, indeed, applied the community caretaking doctrine to home or
business searches. Ray v. Township of Warren, #09-4353, 2010 U.S. App. Lexis
24043 (3rd Cir.).
A federal appeals court upheld a $100,000 damage
award to a plaintiff suing for unlawful search of his residence, finding that
the search warrant utilized was based on an affidavit lacking in probable
cause. It mentioned no specific crimes thought to have probably been committed,
made no link between the residence to be searched and any crime, and sought
broad authority to search for any documents pertaining to the plaintiff. This
was so lacking in any indicia of probable cause as to render any belief in its
legality unreasonable. Ellison v. Balinski, #09-2033, 2010 U.S. App. Lexis
23409 (6th Cir.).
A homeowner claimed that police unlawfully
searched his home and seized marijuana plants found there without probable
cause, doing so by misleading a magistrate into issuing a search warrant for
the premises. This was allegedly accomplished by misstating the plaintiff's
criminal history. Rejecting this argument, and upholding summary judgment for
the state trooper who obtained the search warrant, a federal appeals court held
that even if the plaintiff's criminal history was misrepresented in the
affidavit for the search warrant, the other information in the affidavit
sufficed to supply probable cause since there was information from the DEA that
the plaintiff had received marijuana cultivation products shipments, and the
trooper himself stated that he found marijuana cigarette remnants in the plaintiff's
trash in close proximity to items of his mail, Parkey v. Sample, #09-3966, 2010
U.S. App. Lexis 22113 (6th Cir.).
Officers in SWAT gear, with the word
"POLICE" displayed on the officers' chests, entered a home to serve a
search warrant. An occupant ran towards his bedroom. When the officers knocked
down the door, and entered the bedroom, yelling "Police," the man
raised and pointed a gun at them, and they shot and killed him. An unreasonable
search and seizure claim against the city failed, as the plaintiff could not
establish that the city had a custom or policy of entering homes to execute
search warrants without first knocking and announcing police presence. Ample
testimony established that standard police procedure was to knock and announce,
and the plaintiff's ability to point to a small handful of cases in which
officers did not do so was insufficient to show an unconstitutional policy or
custom. Whittier v. City of Sunrise, #10-10032, 2010 U.S. App. Lexis 19140
(Unpub. 11th Cir.).
Officers armed with a valid warrant carried out a
search of the plaintiffs' farm. In the lawsuit filed asserting search and
seizure claims, the plaintiffs claimed that the search resulted in their cattle
losing weight, that a stove was left on while they were detained during the
search, and that a number of kittens died. It was the arrival of the officers,
which was necessary to carry out the search, which caused the cattle to become
"spooked," bolt, and break through a fence. The fact that this
occurred as a result of the officers' arrival did not render the search
unlawful. The officers acted reasonably in denying one of the plaintiffs her
request to enter her house to turn off her stove and check on her cat, as the
search warrant mandated a search for a number of small items, including a ring,
a watch, photos, and papers, which could have easily be moved, destroyed, or
concealed if she entered the house. The detention of the plaintiffs during the
search, which lasted less than an hour, was reasonable. Lykken v. Brady,
#09-3008, 2010 U.S. App. Lexis 19569 (8th Cir.).
A plaintiff sued an officer who drafted an
affidavit used to obtain a warrant used to search his property, claiming that
his Fourth Amendment rights were violated. A federal appeals court, in
rejecting this claim, noted that to survive summary judgment in a federal civil
rights lawsuit, a claim for judicial deception in the obtaining of a search
warrant must establish that the officer engaged in deliberate falsehood or
reckless disregard for the truth in the affidavit, and show that, but for this
dishonesty, the search warrant would not have established probable cause. As
the plaintiff failed, in this case, to show that the officer deliberately or
recklessly made false statements or omissions in his affidavit that were
material to the finding of probable cause, the officer was entitled to
qualified immunity. Littlefair v. Gosner, #09-35806, 2010 U.S. App. Lexis 19264
(Unpub. 9th Cir.).
Two officers went to a home after a 911 hang-up
call was received from there. They entered the home, seeing that the front door
was wide open, concerned that someone might be hurt or in need of assistance.
They first announced their presence and entered after receiving no response. At
one point, they encountered a man, who did not answer their question about why
he had not responded to their calls. Instead, he jumped on one officer, and a
fight began. The man grabbed one officer's gun hand, and that officer yelled to
the second officer that the man was going for his gun. The second officer
shouted repeatedly at the man to get down, and then fired at him. The man then
charged this officer and hit him with enough force to briefly knock him out.
The man then died from being shot. He was bipolar, and off his medication, and
his wife called 911 and hung up, and then called a second time, telling the
dispatcher of the medical situation, but this information never reached the
officers. In a lawsuit by the wife against the city, the court ruled that the
defendant was entitled to summary judgment. The officers' warrantless entry
into the home was justified by exigent circumstances. Johnson v. City of
Memphis, 09-5046, 2010 U.S. App. Lexis 17658 (6th Cir.).
A gunshop owner was training a customer to use a
handgun when the customer intentionally shot himself in the head to commit
suicide. A police investigation concluded that the store owner was not at fault
for the suicide, but the police chief still suspended the store owner's
firearms license, pending further investigation. The police department
contacted ATF to request that they inspect the store, and an ATF inspector
arrived to do that. During the inspection, he allegedly found several
violations of federal firearms regulations, such as sales without completing required
forms, and failure to update records to account for several firearms. The
store's federal license was suspended and its state license was first suspended
and then revoked. The owner sued the ATF agent, claiming that the inspection,
and his seizure of his federal license and several gun frames lacking serial
numbers violated his rights. A federal appeals court found that the ATF agent
was entitled to qualified immunity. The court rejected the argument that the
inspection was not legitimate because the agent was acting at the behest of the
local police department. The statute allowing for ATF inspections of gun shops
does not prevent the ATF from doing so at the request of local police.
Giragosian v. Bettencourt, #09-2001, 2010 U.S. App. Lexis 15670 (1st Cir.).
A federal appeals court found that officers who
executed a search warrant on a residence were not entitled to qualified
immunity from unreasonable search and seizure claims by the residents, as
portions of the warrant were “so lacking in indicia of probable cause as to
render official belief in its existence unreasonable." Among other things,
the warrant authorized a search and seizure of all firearms, firearms-related
materials, and "gang-related materials," which was found to be
unconstitutionally overbroad, in violation of the Fourth Amendment's
specificity requirement for search warrants. Millender v. County of L.A.,
#07-55518, 2010 U.S. App. Lexis 17673 (9th Cir.).
Members of a family who lived together in a home
sued a police department and town for an allegedly unreasonable search of their
residence. While one family member allegedly gave consent for the warrantless
search, the plaintiffs argued that the consent was obtained through
misrepresentations, and also was negated by another family member's explicit
refusal of consent. A jury returned a verdict for the defendants and the
plaintiffs argued on appeal that the trial court improperly told the jury that
they had the burden of proof in showing a lack of consent to the search. Because
the plaintiffs had not objected at trial to this portion of the jury
instructions, the plaintiffs could only prevail on this issue on appeal if they
could show that the instructions amounted to "plain error." They
could not do this, as the law of the Second Circuit on who bears the burden of
proof as to whether there was consent to a search is not clearly established.
Tirreno v. Mott, #08-2983, 2010 U.S. App. Lexis 8977 (Unpub. 2nd Cir.).
In a lawsuit by a married couple challenging the
validity of a search warrant used to search their residence, which uncovered
evidence leading to the subsequent arrest and prosecution of the husband, a
federal appeals court ruled that the warrant was facially valid, and based on
an affidavit that established probable cause for its issuance. Additionally,
the affidavit described with sufficient detail both the place to be searched
and the things to be seized. All those participating in the search, with only
the possible exception of the officer writing the affidavit, were entitled to
rely on this facially valid warrant. As to the officer writing the affidavit,
his failure to sign it was unintentional and unknown to him when the search
warrant was issued. Such innocent or negligent mistakes did not show a
constitutional violation. Fleming v. Barber, #09-11743, 2010 U.S. App. Lexis
12500 (Unpub. 11th Cir.).
Officers searched an attorney's law office and
residence using a warrant, hoping to find stolen laptop computers and
controlled substances. The plaintiff argued, in her subsequent civil rights
lawsuit against the county sheriff, that the affidavit for the warrant was so
clearly lacking in probable cause that the only real issue should be the amount
of damages to be awarded. The appeals court stated that it was "difficult
to conclude" that generalized statements about the plaintiff's alleged
wrongdoing established a "substantial" basis for the search. But it
also concluded that, even if the warrant lacked probable cause, that did not
necessarily mean that the defendant was personally liable for damages for the
search. The affidavit contained very general statements obtained from a known
thief and cocaine user who claimed to have paid the attorney for legal services
with a stolen laptop, and that the attorney used drugs. The affidavit for the
warrant was far from ideal, but there were still a few indicia of reliability
so that an officer could reasonably believe that there was probable cause. A
reasonably trained officer would not be required to second guess the judge who
authorized the warrant, as it was not that clearly lacking in probable cause.
The defendant was therefore entitled to qualified immunity. Junkert v. Massey,
#09-2908, 2010 U.S. App. Lexis 12614 (7th Cir.).
A husband and wife claimed that officers violated
their rights in making a warrantless entry into and search of their residence,
arresting them, and using excessive force against the husband. The appeals
court found that there was a significant disputed material issue of fact as to
whether or not the officers smelled the odor of marijuana while talking to the
husband. If they did not, they lacked exigent circumstances and probable cause
to make their warrantless entry, and their subsequent actions were unjustified.
Tubbs v. Harrison, #09-6152, 2010 U.S. App. Lexis 12883 (Unpub. 10th Cir.).
A husband and wife claimed that sheriff's
deputies violated their Fourth Amendment rights by making a warrantless entry
into their garage and arresting the wife for obstruction of justice. The wife
had attempted to close the garage door to bar the deputies from serving a court
order on her husband, but one deputy stepped into the garage as the door was
closing, breaking the electronic eye safety beam on the garage door, and
causing the door to fully open, whereupon the deputies entered. They did not
have a search or arrest warrant. The appeals court held that the deputies were
entitled to qualified immunity, as it was not clearly established law that the
couple had a Fourth Amendment right against a warrantless entry of their garage
or a warrantless arrest inside it. It was also not clearly established that
entry into a garage, even when attached to a home, was the same as entry into
the home, or that the attached garage constituted part of the curtilage of the home
when the door was open. Coffin v. Brandau, #08-14538, 2010 U.S. App. Lexis
12780 (11th Cir.).
A man purchased 6.70 acres of land within three
miles of a city's limits, in an area in which the city had statutory planning
and zoning authority. The property included a forested area, a ravine, a house,
and a "dilapidated" two-story structure built by a prior owner
without building permits that the city had placarded for condemnation. The city
subsequently notified the owner that it had evidence that he was dumping
building rubble and demolition debris on the property illegally, and ordered
such activity to cease. A health inspector entered the property and
photographed the debris, accompanied by a city code inspector. The owner was
charged with a littering violation, which was eventually dismissed for
technical reasons related to speedy trial requirements. The owner filed a
federal civil rights lawsuit asserting Fourth Amendment search and seizure
claims. A federal appeals court ruled that an inspector who was lawfully on the
property and who saw apparent public health sand safety violations from the
exterior of a garage structure did not need a warrant to look in a window to
confirm the apparent violations. Summary judgment for the defendants was affirmed.
Nikolas v. Omaha, #09-1679, 2010 U.S. App. Lexis 9974 (8th Cir.).
A woman claimed that police violated her rights
when they entered her home without a warrant and detained her son. The incident
happened following two bomb threats being called in to a high school by an
anonymous caller. The school was under lockdown for security purposes, and an
earlier call had threatened a shooting at the school. Police suspected, based
on information that they had received, that the woman's son had made the bomb threats
and was involved in gang activity, and that the home was a gang hangout. When
officers discovered that the threatening phone calls had not been made from
either the house phone or the boy's cell phone, they left the house and stopped
detaining the son. A federal appeals court ruled that the officers were
entitled to qualified immunity because they reasonably acted on what they
believed to be exigent circumstances, an urgent need to protect students at the
high school against a possible bomb threat. Armijo v. Peterson, #09-2114 2010
U.S. App. Lexis 7572 (10th Cir.).
Following the purchase of narcotics from a
suspect by undercover informants, one seller began moving at a fast pace back
to his apartment. Officers went to the building, and heard a door slam at the
far end of the hallway. They encountered a scent of burning marijuana, and
decided to attempt a warrantless entry into the apartment on the left of the
hallway, rather than the right, on that basis. The officers knocked and
announced their presence, but believed that sounds coming from inside the
apartment might means that the fleeing drug seller was now destroying physical
evidence within, so they entered. They saw large quantities of marijuana and
cocaine in plain view and arrested occupants of the apartment. Ruling that the
evidence obtained should be suppressed, the Kentucky Supreme Court stated that
the officers did not have proper exigent circumstances to justify a warrantless
entry into the apartment. The court reasoned that the officers were not in hot
pursuit of a fleeing suspect because the fleeing suspect did not have awareness
that he was being pursued. The court further believed that the warrantless
entry was not justified by the imminent destruction of evidence, and that,
indeed, by knocking on the door and announcing their presence, the officers
"created any resulting emergency" and the possible destruction of
evidence. The court believed that the proper thing to do would have been for
officers to seek and obtain a search warrant. King v. Commonwealth,
#2008-SC-00274, 302 S.W.3d 649 (Ky. 2010).
An officer received an anonymous call indicating
that drug sales were taking place at an apartment. On two occasions, the
officer then went to the building, and a drug sniffing dog alerted to the
presence of narcotics on the outside of the apartment door. Based on this, he
obtained a search warrant. No drugs were found during the ensuing search.
During the search the officers drew their weapons and forced the married couple
who lived there to get on the floor. The couple's son was also present and was
detained. A federal appeals court found that the plaintiffs adequately stated
claims for excessive use of force in the execution of the search warrant, as
well as continuing the residents' interrogation and the use of force against
them after it had become plain that no drugs were present. The officers
allegedly kept the plaintiffs at gunpoint and handcuffed for over an hour, even
though they prepared a confidential operation plan for the raid stating that no
firearms were anticipated to be found in the apartment. Binay v. Bettendorf,
#09-1249, 010 U.S. App. Lexis 8084 (6th Cir.).
After officers arrested a man, they claimed that
the fact that they found house keys on his person during a search incident to
the arrest justified them in conducting a non-consensual, warrantless search of
the house, which the keys unlocked. A federal appeals court found this argument
to be utterly without merit, so that if the facts were as the plaintiff asserted,
the officers were not entitled to qualified immunity on a claim for illegal
search. The arrest warrant, issued by another state, Georgia, authorized their
arrest of the plaintiff, but did not provide them with any basis to search his
home. Quint v. Village of Deerfield, #09-2508, 2010 U.S. App. Lexis 4184
(Unpub. 7th Cir.).
Plaintiffs whose home was searched pursuant to a
warrant argued that the warrant was improperly obtained, that it lacked
particularity, and that chukka sticks seized during the search were not covered
by the plain view principle. The appeals court rejected these arguments,
finding that the warrant provided the basis for a search of the entire premises
for cocaine, cash, drug paraphernalia, books, and records. These materials could
have been contained in a coat closet, so that the chukka sticks were properly
found there. Since possession of chukka sticks is unlawful under N.Y. law, they
were correctly seized when observed in plain view, leading to the plaintiffs'
arrest. Sostre v. County of Suffolk, #09-1835, 2010 U.S. App. Lexis 2433
(Unpub. 2nd Cir.)
A murder suspect lived in a house with other
individuals. Police received information from a friend of his that the suspect
had tried to destroy evidence in a related crime, and feared that he might
destroy evidence of the murder or flee. They therefore carried out an
unannounced warrantless entry into the house. During the ensuing search,
officers allegedly pointed guns at residents, including children, and detained
them for 13 hours. A federal appeals court ruled that the officers were
entitled to qualified immunity on the failure-to-announce and warrantless entry
claims in the residents' lawsuit. While a jury might find that the entry was
not justified by exigent circumstances, the law on the subject under these
circumstances was not clearly established. Detention of the residents was
justified by the dangerousness of the suspect, the need to carry out an orderly
search, and the fear that evidence could be destroyed. Summary judgment was
overturned, however, on excessive force claims, since a reasonable jury could
find that the officers used excessive force by entering with guns drawn,
pointing guns at the residents, and putting handcuffs on one of them in a
manner that caused pain. Curiel v. County of Contra Costa, #07-17233, 2010 U.S.
App. Lexis 1358 (Unpub. 9th Cir.).
A private religious boarding school for children
with behavioral and substance abuse problems, six former students, and thirteen
parents of the former students sued Missouri juvenile officials, claiming that
they conspired to raid the school and seize scores of its students. The
purported ringleader of the conspiracy allegedly disliked the school because it
operated, legally, without a license, because he disagreed with its teachings,
and because he believed that it had not acted "very Christ-like."
Juvenile authorities and armed law enforcement officers, numbering 30 persons
in total, arrived at the school and removed 115 of its students, based on ex
parte orders from local juvenile court judges, allegedly obtained by
misrepresentations that the students were in imminent danger of physical harm
and that the school was unwilling to cooperate with juvenile authorities.
Because the information presented was also "stale" the raiding party
lacked orders for dozens of the students that they removed, but they had orders
for about forty children who no longer lived there, as well as for four adults
over whom the juvenile courts lacked jurisdiction. The children were detained
until their parents could pick them up, and parents were then given "stern
letters" telling them to keep their children away from the school.
Juvenile cases involving the children were all dismissed. The defendants were
not entitled to summary judgment on the basis of qualified immunity, as the
constitutional rights violated under the First, Fourth, and Fourteenth
Amendment if the plaintiffs' allegations were true were clearly established.
Heartland Acad. Community Church v. Anderson, #08-3723 2010 U.S. App. Lexis
2619 (8th Cir.).
The Tennessee Supreme Court has held that the homes of
parolees may be subject to a warrantless search without reasonable or
individualized suspicion when searches are made a condition of parole. Officers
searched the parolee's home after a pat-down search revealed that she was in
possession of $975, despite the fact that she had no source of income, and
after they received information that indicated that she'd "been involved
in dealing drugs again." A handgun was recovered from the home during the
search. The court ruled that the search did not violate either the Fourth
Amendment or unreasonable search and seizure prohibitions of the state
constitution. In doing so, it adopted the reasoning of the U.S. Supreme Court in
Samson v. California, #04-9728, 547 U.S. 843 (2006). State of Tennessee v.
Turner, #W2007-01590-SC-R11, 297 S.W.3d 155; 2009 Tenn. Lexis 678.
A married couple and their two children sued a
city and one of its detectives for unlawful search, failure to "knock and
announce," and excessive force. The detective, while searching for
suspects in a stabbing, received information from a confidential information in
which the names of a suspect and his mother were similar to the husband and
wife's names. He used this information to obtain a search warrant for the
plaintiffs' residence. The search was carried out by a SWAT team and a K-9
unit, who entered the home with drawn weapons. All four residents were
"rounded up," but the officers then realized that they were in the
wrong house. A federal appeals court found that there was sufficient evidence
from which a jury could find that the search warrant was not supported by
probable cause and that the detective had made representations about the
location of the suspect that were either knowingly false or made with reckless
disregard of the truth. As for the "knock and announce" and excessive
force claims, the method with which the search had been carried out was not
objectively unreasonable. Walker v. City of Wilmington, #08-4218, 2010 U.S.
App. Lexis 853 (Unpub. 3rd Cir.).
The team leader of a SWAT team that participated
in a raid during which a woman's son, sought for drug offenses, was shot and
killed, was entitled to summary judgment on the claim that he should be liable
for the death due to the allegedly no-knock way in which the search warrant was
executed. Whether or not a knock-and-announce occurred, which was disputed, the
team leader was entitled to qualified immunity because knowledge of the nature
of the drug trafficking, combined with information that the son was armed,
provided reasonable suspicion that there were exigent circumstances justifying
a no-knock entry. Whittier v. Kobayashi, #08-12998, 2009 U.S. App. Lexis 19488
(11th Cir.).
Because there was a genuine issue of fact as to
whether animal cruelty proceedings against the plaintiff were civil or criminal
in nature, officers were not entitled to summary judgment in a lawsuit alleging
an unlawful warrantless search of her property and seizure of her 47 dogs and
cats. Officials feared for the safety of the animals after hearing a false
rumor that she had been placed in a mental health care facility. Animal cruelty
charges against the plaintiff were dropped, and she agreed to pay some of the county's
costs and submit to periodic inspections. If the proceedings were civil in
nature, the plaintiff's civil rights lawsuit would not be barred under Heck v.
Humphrey, #93-6188, 512 U.S. 477 (1994) by the result in the prior case. The
court also found that a prosecutor was not entitled to absolute prosecutorial
immunity for her actions in allegedly entering the plaintiff's property,
assessing the condition of the animals, providing legal advice to the officers,
and participating in the seizure of her animals. Hoog-Watson v. Guadalupe City,
#08-50077, 2009 U.S. App. Lexis 27639 (5th Cir.).
Officers did not violate the rights of apartment
renters in searching their home and detaining them during the search. The
homeowners were suspected of drug trafficking, and the officers obtained a
search warrant that covered a house and the detached garage which contained the
garage apartment in which the renters resided. The officers, after entering,
observed marijuana in plain view, and the officers reasonably suspected that
the homeowners might be using the garage apartment to use and store drugs.
Harman v. Pollock, #08-4068, 2009 U.S. App. Lexis 25394 (10th Cir.).
In the absence of exigent circumstances, an
officer may not make a warrantless and non-consensual entry into a home to
arrest a routine felony suspect, and interpreting a Texas statute to allow such
arrests would not be objectively reasonable, so that a police officer was not
entitled to qualified immunity on unlawful arrest and unlawful entry and search
claims. Denton v. Rievley, #08-6406, 2009 U.S. App. Lexis 24912 (Unpub. 6th
Cir.).
After officers searching his house pursuant to a
search warrant found 7.6 grams of methamphetamine ("meth"), the
arrestee complained about pain he was suffering due to recent surgery. Officers
present, two of whom allegedly had their guns drawn, purportedly ordered him to
take two tablets of a strong narcotic pain reliever, oxycontin, which he did.
They then allegedly compelled him to reveal where he was concealing another 21
grams of meth. He later pled guilty to possession of meth with intent to
distribute. An appeals court reasoned that a favorable ruling on the arrestee's
Fourth Amendment and due process claims would not necessarily call into
question the validity of his conviction, since the drugs found before the
alleged compelled disclosure of the additional drugs were sufficient to support
the charges. Because the arrestee pled guilty without going to trial, there was
no violation of the Fifth Amendment prohibition on compelled
self-incrimination, since no allegedly compelled incriminatory statements were
used as evidence. The arrestee could continue with his unreasonable search
claim and his due process claim, and seek damages for alleged physical injury
resulting from a compelled overdose of pain medication. Pearson v. Weischedel,
#09-8058, 2009 U.S. App. Lexis 22788 (Unpub. 10th Cir.).
A police chief went to a residence, seeking to
arrest a married couple's daughter. At the door, the mother refused to cooperate,
and the chief tried to restrain and handcuff her, but she retreated inside. The
chief sought assistance from county sheriff's deputies. When they arrived, and
asked the mother to come outside, she told them to come inside if they wanted
to talk to her. Her husband then opened the door for them. After entering, a
deputy took her into custody, and escorted her out of the house and into the
police chief's car. The daughter was then arrested as she stood in the open
doorway. Rejecting claims of unlawful search and seizure and false arrest, a
federal appeals court noted that the deputies' entrance into the home was based
on the consent from the mother and her husband, and found that it was
reasonable for officers to believe that there was probable cause to arrest the
mother. Berglund v. Pottawatomie County Board of County Commissioners,
#09-6000, 2009 U.S. App. Lexis 23293 (Unpub.10th Cir.).
A police officer in Louisiana claimed that he was
in charge of a center distributing supplies during Hurricane Katrina. He
further argued that political animus a police chief had towards him was the
reason that an illegal search of his residence was carried out and he was
falsely arrested for purported theft of supplies. The officer sufficiently
alleged that a detective, in applying for search and arrest warrants, both made
false statements and omitted material information from the affidavits. Further
discovery was ordered to determine if a police officer who entered the
plaintiff's property and reported seeing allegedly stolen supplies was entitled
to qualified immunity, because of conflicting versions as to his purposes for
entering. Nothing more than "speculation," however, supported the
claim that the police department's chief of investigations approved the filing
of false affidavits, and there was also insufficient detail to support a claim
that the police chief was personally involved in directing the filing of the
affidavits. Claims against the city were properly dismissed in the absence of a
showing that anyone acted pursuant to a municipal policy or custom. Floyd v.
City of Kenner, #08-30637, 2009 U.S. App. Lexis 23913 (5th Cir.).
A police officer claimed that he had probable
cause to seize a large amount of money found in a suspect's possession, but a federal
appeals court, upholding an award of $1 in nominal damages and attorneys' fees
against the officer for a Fourth Amendment violation, found that the mere fact
that a large amount of money was found was insufficient to show a connection to
possible drug sales. Even though the plaintiff used two different names when he
checked into a hotel, had ties to New York City, and had a third-degree robbery
criminal record, these additional facts also did not establish probable cause
to find drug trafficking, but merely supported a brief detention of the money
for further investigation, rather than the lengthy detention that occurred. The
plaintiff had presented evidence that he currently resided in Vermont,
explained why he used two names and did not try to conceal it, and his most
recent robbery conviction occurred long ago in 1973. Diamond v. O'Connor,
#08-5082, 2009 U.S. App. Lexis 21413 (Unpub. 2nd Cir.).
The U.S. government was not entitled to the civil
forfeiture of $200,000 in funds that were allegedly the proceeds of a Los
Angeles medical marijuana distribution group. A federal court found that that
the evidence presented was the result of an illegal search and therefore should
have been suppressed. Without the suppressed evidence, there was nothing to tie
the funds to any violation of federal drug laws. "Given the government's
strong financial incentive to prevail in civil forfeiture actions, the
application of the exclusionary sanction in these cases is likely to prove
especially effective in deterring law enforcement agents from engaging in
illegal activity. Applying the exclusionary rule in forfeiture proceedings also
protects judicial integrity by ensuring that the courts do not serve as a
conduit through which the government fills its coffers at the expense of those
whose constitutional rights its agents violated." The problem with the
state warrant under which the funds had been seized, along with 209 pounds of
marijuana, 21 pounds of hashish and 12 pounds of marijuana oil was that the
judge who signed the warrant was not told that the premises operated as a
medical dispensary, and therefore might not have been in violation of
California state laws. The appeals court was particularly concerned that the
Los Angeles police, who obtained a search warrant and conducted the raid,
turning over 80% of the money to the federal government, but retaining 20% of
the funds for the local police department "might stand to profit from
unlawful activity." U.S. v. $186,416.00 in U.S. Currency, #07-56549, 2009
U.S. App. Lexis 22833 (9th. Cir.).
The plaintiff claimed that the officer who
executed search warrants for two apartments purportedly rented by him falsely
stated that he received a phone call from a confidential informant to the
effect that the plaintiff had moved his personal possessions from one apartment
to the other. An appeals court addressing illegal search and seizure claims
noted that the plaintiff based his assertions of fact on the officer's cell
phone records, while the call at issue was made to the officer's office phone.
The officer's statements in support of a warrant application regarding the
purported receipt of the phone call was not so inconsistent with police reports
as to create a material issue of fact. The prisoner argued that the officer
failed to produce his office phone records, but he failed to pursue the
records' release before the trial court's grant of summary judgment against
him. Dukes v. City of Minneapolis; #07-2531, 2009 U.S. App. Lexis 16844 (Unpub.
8th Cir.).
A homeowner claimed that police officers entered
his home armed with a search warrant issued because of an officer's false
statements, that two of the officers knew that the statements were false when
they participated in the search, and that officers used excessive force while
doing so. Dismissing federal civil rights claims against supervisory police
officials, a federal court found that, even if the facts of the search were as
stated, there was no evidence from which the supervisory officials could be
held liable. There was evidence, for instance, that a police superintendent
undertook "numerous" actions to investigate and remedy police conduct
he had become aware of, and that the police commander took steps to make sure
all officers received civil rights training. Cruz-Acevedo v. Toledo-Davila,
#07-1844, 2009 U.S. Dist. Lexis 92018 (D.P.R.).
Police detectives were to seize and secure two
forfeited homes, pursuant to a valid court order, but allegedly entered a
different home, on the same street, which had a different address, but which
did not have its number clearly marked on its exterior. The trial court denied
the defendants' motion to dismiss the lawsuit by the occupants of that home,
which claimed unlawful search and seizure. The court noted that the correct
home was on the opposite side of the street, and that the detectives allegedly
did not even check if they were on the "odd" or "even" side
of the street. Williams v. District Attorney's Office of Philadelphia,
#08-1080, 2009 U.S. Dist. Lexis 67784 (E.D. Pa.).
When a man asked officers to leave his home and
one of them failed to comply, any consensual encounter was over. An officer
lacked probable cause to support his belief that the man had violated a state's
obstruction of justice statutes, and he could not, without violating the Fourth
Amendment, remain present based solely on a "hunch" that the man
"knew more" than he was saying. The officer was not entitled to
qualified immunity as he did not act in an objectively reasonable manner under
clearly established law. The officer's further act, in detaining the man
handcuffed in the back of a police vehicle for three hours after he agreed to
help the officer locate a suspect, constituted an unlawful arrest for which no
justification was stated. The appeals court ordered a judgment as a matter of
law in favor of the plaintiff and a trial on the issue of damages. Manzanares
v. Higdon, #07-2156, 2009 U.S. App. Lexis 17817 (10th Cir.).
An officer was involved in the execution of a
search warrant on a private industrial park containing two auto body shops,
based on an alleged crime of altering a vehicle identification number. The
court found that the alleged crime did not involve violence and that there was
no indication that anyone at the location of the search was dangerous, armed,
or offering resistance. The officer, despite these facts, wielded a
9-millimeter submachine gun, which he utilized to detain a number of people
present. Subsequently, the search ended after a determination that the VIN had
not been altered. The federal appeals court ruled that the use of the
submachine gun was objectively unreasonable under these circumstances. The
officer was not entitled to summary judgment on the basis of qualified immunity
on the detainees' excessive force claims. Baird v. Renbarger, #08-2436, 2009
U.S. App. Lexis 17215 (7th Cir.).
An animal control officer seized a wolf from the
plaintiffs' home while they were absent. A federal appeals court held that the
fact that the wolf may have been lawfully possessed did not mean that it could
not be seized before the legality of its status was verified if the seizure was
necessary to protect public safety. The officer was entitled to qualified
immunity because the court could not find that a reasonable officer would have
found it apparent that her actions were unlawful. There was no showing that the
officer acted pursuant to an official government policy or custom, so the
county could not be held liable. Walker v. Prince Georges County, #08-1462,
2009 U.S. App. Lexis 16872 (4th Cir.).
Police officers may not remain in a residence
after consent to enter, previously granted, is revoked, nor may they detain a
person for the duration of an investigation on the mere basis of a hunch that
they might aid a suspect if released. Summary judgment for the defendant
officers was therefore reversed. Manzanares v. Higdon, No. 07-2156, 2009 U.S.
App. Lexis 17817 (10th Cir.).
Sheriff's deputies accompanied a homeowner's
girlfriend into the residence's private study to help determine if he had
hidden any of the girlfriend's property there. While there, the deputies
observed drugs and drug paraphernalia. While the girlfriend lacked the actual
authority to consent to the deputies warrantless entry into the study, the deputies
were entitled to qualified immunity from liability, since the law on this
subject was not clearly established at the time. The appeals court further held
that the deputies were entitled to qualified immunity on due process claims,
because there was no prior recognition of a "particularized" right to
notice, following a warrantless search, of the search itself and the items
seized. Moore v County of Delaware, #08-2426, 2009 U.S. App. Lexis 16452
(Unpub. 2nd Cir.).
Police officers lacking a warrant or probable
cause, according to an appeals court, broke into a man's home based of a
statement from a third party that the occupant had been involved in an
"extremely minor traffic incident, an incident so minor that it did not
cause as much as a scratch on either of the vehicles involved, and that he
appeared to have been drinking." The officers entered with flashlights
shining and guns drawn, handcuffing the man, removing him from the house, and
placing him under arrest. The officers subsequently explained that, hearing
that the man had the smell of alcohol on his breath, they feared that he was on
the brink of a diabetic coma and sought to provide "medical
assistance." One officer stated that they entered with guns drawn because
persons suffering from diabetic emergencies may be "combative." The
appeals court noted, however, that the man was not suffering from a diabetic
coma and was not combative, but was simply watching television in his bedroom
when encountered. Two officers who entered the home were not entitled to
qualified immunity, as their conduct, if as described, violated the homeowner's
clearly established constitutional rights. A third officer, who did not enter
the home, but instead remained outside, was a "mere bystander" to the
incident, and could not be held liable for the warrantless entry. Hopkins v.
Bonvicino, #07-15102, 2009 U.S. App. Lexis 15689 (9th Cir.).
A man was convicted of drug and firearms-related
crimes based on evidence seized from his apartment during a search conducted pursuant
to a search warrant. The search warrant was issued because the plaintiff had
been observed by federal agents driving a person to a vehicle used in a bank
robbery. While the search was for evidence of involvement in the bank robbery,
it uncovered a gun, drugs, and drug paraphernalia. The plaintiff's lawsuit was
barred because success in his illegal search claim would necessarily imply the
invalidity of his conviction, and his conviction had not been overturned on
appeal or otherwise set aside. Crawford v. Frimel, #07-3452, 2009 U.S. App.
Lexis 15012 (Unpub. 3rd Cir.).
Police officer's warrantless entry into a home
was justified by exigent circumstances when he suspected that the house was
being vandalized and that there was a possibility that a missing teenage girl
was inside. The officer was responding to a neighbor's 911 call indicating that
she thought the homeowners were on vacation and that she feared that burglary
or vandalism was occurring. The officer saw lights inside the house turn off as
he approached, no one answered the doorbell, and he noticed that a formerly
closed garage door had been opened when he returned to his patrol car.
Additionally, the owner of a vehicle parked outside the house told the officer
that he did not know why the car, which was his stepdaughter's vehicle, was
there, and that he was worried about her safety because she did not answers
calls to her cell phone. Additionally, two weeks earlier, a vacant house in the
area had burned down because of unauthorized use. Hunsberger v. Wood, #08-1782,
2009 U.S. App. Lexis 13925 (4th Cir.).
Rejecting unlawful search claims from a rental
property owner, the court found that, even if a search or inspection of the
property had occurred, the Fourth Amendment was not violated since tenants
present on the property consented. Tarantino v. City of Hornell, #05-CV-6587,
2009 U.S. Dist. Lexis 42397 (W.D.N.Y.).
An man convicted of a criminal charge sued,
claiming that officers had violated his Fourth Amendment rights by searching
his bag, which he entrusted to his roommate. A federal appeals court rejected
the argument that his conviction barred his Fourth Amendment lawsuit. Since he
was convicted through a guilty plea, a decision in his favor on the Fourth
Amendment claim would not imply the invalidity of the conviction, as it did not
rest on any evidence obtained through the search. Easterling v. Moeller,
#08-3741, 2009 U.S. App. Lexis 14067 (Unpub. 7th Cir.).
Following the murder of a deputy sheriff, a
search warrant was obtained for the residence of the parents-in-law of the
suspected killer, and their property was searched. An officer subsequently
ordered a stop of the suspect's sister-in-law. Both the search and the stop, a
federal appeals court stated, were based on little more than the family
relationship. The court held that these actions were unreasonable searches and
seizures in violation of the Fourth Amendment. A family relationship is an
insufficient basis to support such invasions of privacy. The officers were not
entitled to qualified immunity, as the legal principles involved were clearly
established at the time. Poolaw v. Marcantel, #07-2254, 2009 U.S. App. Lexis
9483 (10th Cir.).
After receiving information that a fugitive from
a house-arrest program was at another man's trailer, agents and deputies
arrested him outside the trailer. They then conducted a warrantless search of
the inside of the trailer. An appeals court disagreed with the trial court's
determination that this search was supported by exigent circumstances, and
concern for the safety of the agents and deputies. Summary judgment for the
defendants was improper because of a factual dispute over whether the fugitive
was arrested right near the front door of the trailer, which may have justified
the search, or at the end of a 76-foot driveway, which was not in close
proximity to the trailer. The court did find, however, that there was no
evidence that the warrantless search was the result of a county policy or
custom, so claims against the sheriff's department and the deputies in their
official capacities were properly rejected. Reese v. Monroe County Sheriff's
Dept., #08-60362, 2009 U.S. App. Lexis 9501 (Unpub. 5th Cir.).
A mother and daughter failed to show that a
federal agent who obtained a warrant for their residence made any material
misrepresentations of fact in the affidavit seeking the warrant, either
deliberately or with reckless disregard for the truth. The entry of federal
agents, armed with the warrant, into the home did not amount to
"assault," and their pointing of guns at the plaintiffs was
reasonable since the plaintiffs tried to prevent their entry into the house,
which was legally authorized. Unus v. Kane, #07-2191, 2009 U.S. App. Lexis 9955
(4th Cir.).
A Michigan Assistant Attorney General and two
state special agents were entitled to Eleventh Amendment immunity on federal
civil rights claims arising from their six-hour search of a man's business
pursuant to a search warrant, during which time they found evidence that he had
the financial ability to meet his child support obligations. This resulted in
him subsequently pleading guilty to four felony charges for failing to pay
child support to four women who had his children. Claims against the defendants
in their official capacities were claims against the state barred by the
Eleventh Amendment. Additionally, the Assistant Attorney General was entitled
to absolute prosecutorial immunity on individual capacity claims, as
authorizing the issuance of a search warrant in the course of a criminal
investigation and prosecuting felony refusal to pay child support was part of
her prosecutorial duties. Streater v. Cox, #08-1631, 2009 U.S. App. Lexis 10597
(Unpub. 6th Cir.).
A sheriff was told that a farmer had some
marijuana plants inside a Quonset hut on his property. Officers then searched
the farm after obtaining a warrant. The farmer sued, claim illegal search and
seizure. A federal appeals court held that the sheriff was not entitled to
qualified immunity from liability. "Because the warrant permits a general
search and seizure of 'all other evidence of criminal activity,' we hold it was
a general warrant prohibited by the Fourth Amendment." The fact that the
affidavit for the warrant was incorporated into the warrant by reference, the
court stated, did not save the warrant's validity, since the officers only
possessed probable cause to conduct a search for evidence concerning the
cultivation of marijuana, but the warrant purported to authorize the seizure of
any possible evidence of any crime in any jurisdiction. The court reasoned that
the warrant authorized exactly the type of "rummaging" through the
farmer's belongings seeking evidence of possibly unsuspected prior crimes, or
of no crime at all, which it said the Fourth Amendment was intended to prevent.
Cassady v. Goering, #07-1092, 2009 U.S. App. Lexis 11736 (10th Cir.).
Two deputies reasonably relied on a search
warrant approved by a prosecutor and a judge in making a nighttime search of a
home during their investigation of an alleged assault by the homeowner's foster
son. There was evidence to indicate that the son was at the home, and, even if
the warrant was arguably overbroad with respect to evidence concerning gang
membership and firearms, the deputies were entitled to qualified immunity in
that they could reasonably rely on those who approved the warrant to limit its
scope to items for which probable cause was shown. Millender v. County of Los
Angeles, #07-55518, 2009 U.S. App. Lexis 9735 (9th Cir.).
While the issuance of a search warrant was valid, since
it was supported by information supplied by an informant and corroborated by
police, officers should have called off the search of the residence at the
beginning when they realized that the building did not fit the warrant's
description of a single family home, but instead had various units, including a
real estate office. The warrant did not specify which unit was to be searched.
Officers were not entitled to qualified immunity in a lawsuit asserting that they
performed an unreasonable search of a woman's home and then placed her under
arrest after a search of the wrong address of a third person who was the actual
subject of the warrant. Guzman v. City of Chicago, #08-2172, 2009 U.S. App.
Lexis 10177 (7th Cir.).
A nightclub stated viable claims for violation of
Fourth Amendment rights in alleging that officers entered the premises without
a warrant, without probable cause, and for the purpose of investigating
possible drug use there, frisking patrons, handcuffing a number of them without
making arrests, ordering lights turned on at the club, and generally acting in
an "intimidating" way. Claims related to an earlier incident at the
club were time barred as the lawsuit was filed four days after the applicable
two-year statute of limitations expired. The Illusions of the South, Inc. v.
City of Valdosta, #7:07-cv-6, 2009 U.S. Dist. Lexis 27154 (M.D. Ga.).
A homeowner changed the locks on her house when
her 18-year-old son stayed overnight at his girlfriend's residence, and told
her son, when he returned home, that he no longer lived there. An officer made
a warrantless entry into the home with the son, over his mother's objections,
to help retrieve the son's belongings. The mother told the officer that her son
no longer lived there and could not consent to the officer's entry, and had not
even been able to give such consent when he did live there. The officer
determined that the son could consent, and proceeded to make the entry. A
federal appeals court overturned the trial court's judgment that no
constitutional violation had occurred with the entry. It found that a
reasonably jury could find, under these circumstances, that the son intended to
live elsewhere, had moved out, and could not consent to the officer's entry.
Further proceedings were ordered on the mother's Fourth Amendment claims.
Kirley v. Williams, #07-2728, 2009 U.S. App. Lexis 9696 (Unpub. 3rd Cir.).
SWAT officers who staged a raid on a bar without
a warrant were not entitled to qualified immunity in the bar owner's lawsuit
claiming that the raid was illegal, involved unreasonable violence, and was not
justified by specified state laws allowing "administrative
inspection" of licensed bars. Club Retro LLC v. Hilton, #08-30512, 2009
U.S. App. Lexis 9864 (5th Cir.).
Even if a trial court erred in instructing a jury
that officers could have lawfully arrested the plaintiff for actions he took in
his front yard, this was a harmless error, since the arrest of the plaintiff
was not based on his actions in his front yard, but for allegedly assaulting
the officers in his backyard. Claims of unlawful arrest, excessive force, and
malicious prosecution were rejected. The trial court properly rejected claims
against a mayor and a mayor's assistant, since there was no evidence that they
participated in any violation of the arrestee's rights. The plaintiff was
properly awarded $20 in damages on his claim that officers engaged in
unreasonable search and seizure when they came to his house, accompanied by a
police dog, to ticket abandoned vehicles, and properly denied the plaintiff
attorneys' fees in light of his limited success on only one of several claims,
and the award of nominal damages. Brocuglio v. Proulx, #07-1676, 2009 U.S. App.
Lexis 8892 (Unpub. 2nd Cir.)
Officers were entitled to qualified immunity from
liability for their search of a home pursuant to a search warrant. Information
developed during an investigation indicated that the owner operated a house of
prostitution elsewhere. An officer had a reasonable belief that there was
probable cause that evidence related to the prostitution business would be
present in the home. Johnson v. Walton. #07-55935, 2009 U.S. App. Lexis 5213
(9th Cir.).
Sheriff's deputies who conducted a search of a
residence in obedience to court orders were entitled to
"quasi-judicial" immunity from liability for the alleged illegality
of the search. The orders directed the seizure of certain items from the home
allegedly needed as evidence in a pending civil lawsuit, and were apparently
sought in order to prevent the possible destruction or alteration of the
evidence. The court orders were facially valid, and the judge's alleged error
in issuing the orders did not deprive him of jurisdiction to do so. Under Utah law,
the deputies were required to carry out court orders, and could have faced
contempt of court charges had they failed to do so. Moss v. Kopp, #07-4098,
2009 U.S. App. Lexis 5752 (10th Cir.).
An officer was not entitled to qualified immunity
in a lawsuit filed by a man he shot twice when he answered the officer's knock
on his trailer door by coming out holding a rifle. The officers were present on
the property searching for an arrestee who had escaped from probation officers.
The man claimed that he grabbed his rifle because he believed a
"predator" was raiding his chicken coops, that the rifle was pointed
at the ground, and that the officer fired without any warning. The court stated
that the mere presence of the rifle under these circumstances was insufficient
to justify the use of deadly force. The court also found that the search of the
curtilage of the trailer violated the trailer resident's Fourth Amendment
rights. The appeals court rejected claims of racial discrimination, however.
Pena v. Porter, #07-1891, 2009 U.S. App. Lexis 5324 (Unpub. 4th Cir.).
Officers who believed that a man who had
allegedly previously threatened suicide was a possible danger to himself had
exigent circumstances sufficient to remove him from his home and take him to a
doctor for possible psychological evaluation. Cloaninger v. McDevitt, No.
072054, 2009 U.S. App. Lexis 2322 (4th Cir.).
In Pearson v. Callahan, No. 07-751, 2009 U.S.
Lexis 59, the U.S. Supreme Court ruled that it was not "clearly
established" for purposes of qualified immunity, that a warrantless entry
into a drug suspect's residence was unlawful when it was based on his prior
consent to entry by an undercover informant to whom he allegedly had sold drugs
(the application of the "consent once removed" doctrine, involving
such consent given to undercover officers to mere informants). On remand, in
Callahan v. Millard Cty., No. 06-4135, 2009 U.S. App. Lexis 3715 (10th Cir.),
in light of the U.S. Supreme Court's decision, the federal appeals court found
that the defendants were entitled to summary judgment on the basis of qualified
immunity on federal civil rights search and seizure claims arising from the
warrantless entry.
Search warrant for a residence had
sufficient information to support a fair probability that evidence of crime
would be found there. The use of armed 20-person SWAT team, three K9 officers,
and a battering ram in carrying out the search was justified by the officers'
surveillance, which showed that the residence had multiple floors and that
there were multiple occupants who needed to be detained, and who were believed
to be preparing to escape. Walker v. City of Wilmington, Civ. No. 06-288, 2008
U.S. Dist. Lexis 74965 (D. Del.).
Officers who had a valid warrant authorizing
no-knock entry reasonably believed that the occupant of a residence was armed
and dangerous, since he had a history of having a "significant"
number of guns, storing some of them in the walls within trap doors, owning a
lion, and had not been seen leaving the residence before the entry. The
officers acted reasonably, under the circumstances, in the amount of force used
in the process of entry, which included use of tear gas and flash grenades,
breaking two windows, and ramming a side door and damaging its latches. Other
destructive acts once inside, including tearing through the ceiling to get to
the attic, and making a hole in the wall, were justified to make sure that no
persons or weapons were concealed. Cook v. Gibbons, No. 07-1754, 2009 U.S. App.
Lexis 1095 (Unpub. 8th Cir.).
Rejecting a claim that officers violated a man's
rights in carrying out a warrantless search of a trailer in which he lived, a
federal appeals court found that the trailer was on land owned by another
person, a rancher, and that the rancher gave the officers actual and apparent
permission for the search, representing that the man was his employee, lived in
the trailer rent-free, and that the rancher had unrestricted rights to access
the trailer. The officers, relying on those representations, were entitled to
qualified immunity on the plaintiff's federal civil rights lawsuit. Morales v.
Boyd, No. 07-11291, 2008 U.S. App. Lexis 26153 (Unpub. 5th Cir.).
A man whose conviction for selling drugs to an
undercover informant he voluntarily admitted into his residence was overturned
sued Utah state law enforcement personnel who carried out a warrantless search
of the premises. The trial court found that the officers were entitled to
qualified immunity based on the adoption, by some courts of the
"consent-once-removed" doctrine, allowing warrantless entry by
officers into homes after consent to entry has previously been given to
undercover officers who have observed drugs or other contraband in plain view.
This was found to have entitled the officers to have reasonably believed their
entry to have been lawful. Based on a two-step procedure spelled out by the
U.S. Supreme Court in Saucier v. Katz, 533 U. S. 194, a federal appeals court
rejected the qualified immunity defense, based on a rejection of the expansion
of the "consent-once-removed" doctrine to the facts of the immediate
case, in which the person initially voluntarily admitted into the home was not
an undercover officer, but merely an informant. The U.S. Supreme Court unanimously
reversed.
The Court first found that the Saucier two-step
procedure for finding qualified immunity should not be "regarded as an
"inflexible requirement." The two-steps involve first determining
whether the facts claimed constitute a violation of a constitutional right, and
secondly, whether that right was "clearly established" at the time,
with qualified immunity applying unless the conduct alleged violated such a
clearly established right.
While this two-step analysis may still be useful
in some cases, the first step of deciding whether a constitutional right was
actually violated may be avoided in instances such as the immediate case where
it can be found that it was not clearly established, at the time of the conduct
at issue, that the conduct was unlawful. In this case, at the time of the
warrantless search, it was not clearly established that the officers' entry was
unlawful, based on the adoption of the "consent-once-removed"
doctrine by two state Supreme Courts, and three federal appeals courts. The
officers could act in reliance on these decisions even when the federal appeals
court governing their area had not yet decided the issue, particularly where no
federal appeals court had then explicitly rejected the doctrine at issue. Pearson
v. Callahan, No. 07-751, 2009 U.S. Lexis 591.
Police officer did not have an arrestee's consent
to enter his home to arrest him, but allegedly simply entered through the front
door after confirming his identity, grabbed the arrestee's arm, and wound up
pushing him approximately six feet before arresting him. The arrestee
immediately asked to see a warrant, and the warrantless entry to arrest him was
not justified by either consent or exigent circumstances. Officer was not
entitled to qualified immunity from liability. Shepard v. Davis, No. 07-11307,
2008 U.S. App. Lexis 24172 (Unpub. 11th Cir.).
Police who entered a condemned building without a
warrant to place illegal occupants staging a protest under arrest were entitled
to qualified immunity on Fourth Amendment and First Amendment claims, as their
actions did not violate these rights. Further proceedings were needed, however,
on claims related to strip searches conducted. Cross v. Mokwa, No. 07-3110, 547
F.3d 890 (8th Cir. 2008).
A worker's compensation enforcement officer was
entitled to qualified immunity for his actions in searching the plaintiff's
insurance business office and seizing files pursuant to a search warrant. While
the warrant itself failed to identify the place to search or the items to be
seized, the attached affidavit, which was incorporated into the warrant did do
so. The officer failed to leave the affidavit with the warrant due to certain
confidential information stated in it, leading to the suppression, at the
plaintiff's criminal trial, of the evidence seized. Despite this, the law
concerning this was not clearly established at the time of the search, since
the suppression of the evidence was based on a U.S. Supreme Court decision
subsequently decided, so the officer's actions were arguably lawful at the time
of the search. Battle v. Webb, No. 08-12696, 2008 U.S. App. Lexis 22823 (Unpub.
11th Cir.). Note: The U.S. Supreme Court case at issue was Groh v.
Ramirez, #02-811, 540 U.S. 551 (2004), on the basis of which the state trial
court ruled, in the criminal case, that the failure to leave a copy of the
affidavit with the defendant at the time of the search rendered the search and
seizure illegal. The search at issue took place in 2001.
When an apartment resident claimed that a search
warrant obtained for her home was negligently requested by an officer based on
factual inconsistencies and unreliable information, she failed to show a
constitutional violation, which requires intentional or reckless disregard for
the truth rather than negligence or an innocent mistake. The plaintiff did not
show that the affidavit for the warrant contained false material information.
Andreen v. Lanier, Civil Action No. 08-cv-0810, 2008 U.S. Dist. Lexis 86720
(D.D.C.).
Claims against a municipal judge for allegedly
conspiring with a police officer to issue an "oral warrant" to search
a man's home, knowing that no authority to issue the search warrant existed,
were barred by absolute judicial immunity. The officer sought the warrant in response
to a call from the man's wife, then involved in a contentious divorce. Lawrence
v. Ray, Civil Action No. 07-2812, 2008 U.S. District Lexis 81207 (D.N.J.).
A man's guilty plea to possession of marijuana
and use/possession of drug paraphernalia did not bar his claim that officers
violated his Fourth Amendment rights when they detained him and searched his
residence with a search warrant. The officers took their actions after a store
security guard told them that the plaintiff had purchased "meth precursors." With
that information, an officer detained the suspect at his home for four hours
while a search warrant was being obtained. When the warrant arrived, marijuana
and drug paraphernalia were found. The court reasoned that success on the claim
that the detention or search were illegal did not necessarily imply the
invalidity of the man's conviction, since the information provided by the
security guard would have inevitably resulted in the discovery of the marijuana
and drug paraphernalia. Additionally, the officers acted in good faith reliance
on the warrant, which was issued by a neutral magistrate, and the evidence
therefore could have been properly admitted even if the warrant lacked probable
cause. Harper v. Jackson, No. 06-5658, 2008 U.S. App. Lexis 17105 (6th Cir.).
Factual issues existed as to whether the owner of
a postal business center and commercial mail receiving agency ever
affirmatively refused to provide forms concerning post office boxes on the
premises requested by a police detective, or physically impeding the detective
from obtaining the forms, justifying the obtaining of a search warrant for the
premises and the subsequent arrest of the owner. Factual issues also existed as
to whether the subsequent warrantless search of the owner's vehicle was
constitutional. Henderson v. County of Los Angeles, No. 06-56039, 2008 U.S.
App. Lexis 20170 (Unpub. 9th Cir.).
Homeowner who claimed that officers severely injured
her while beating her during a warrant-based search of her home could not
pursue Fourteenth Amendment due process claims for excessive use of force since
such claims may only be brought under the Fourth Amendment. The plaintiff also
failed to adequately show that the city engaged in inadequate training,
supervision, or disciplining of officers and that such inadequacies caused her
injuries. Torres v. City of Allentown, Civil No. 07-1934, 2008
U.S. Dist. Lexis 50522 (E.D. Pa.).
An arrestee was awarded $1 in nominal damages and
$250,000 in punitive damages against a police officer in a lawsuit arising out
of a shooting by an officer resulting in the death of her deaf-mute son. The
lawsuit did not challenge the legality of the shooting, but claimed that
officers improperly acted against the arrestee and her other surviving son
following the shooting. The claims asserted included an allegedly unlawful
search of the arrestee's house and false arrest. The appeals court upheld a
reduction of the punitive damages to $5,000, finding that the jury's award was
unconstitutionally excessive. The appeals court found that she did not present
enough to create a triable issue concerning the county's alleged negligent
training of the officers, and upheld a jury instruction limiting the
plaintiff's claim for emotional distress damages to the distress experienced
during the two days surrounding the incident. The appeals court also overturned
an order denying the plaintiff attorneys' fees as a sanction for her attorney's
failure to appear at a hearing, since he did not have any notice that a personal
appearance was required. Mendez v. County of San Bernardino, No. 05-56118, 2008
U.S. App. Lexis 18426 (9th Cir.).
A warrantless search of land used for hunting
purposes was not a violation of the Fourth Amendment rights of a man who held a
hunting license for the land, as the search was justified under the "open
fields" doctrine and the "plain view" doctrine. The sheriff and
other law enforcement personnel also had probable cause to believe that plants
which the licensee had planted on the land (kenaf seed) in order to attract
wildlife were marijuana, since they were "virtually
indistinguishable" from marijuana plants. A claim for the alleged unlawful
taking and destruction of the plants could not be pursued in the federal civil
rights lawsuit since the plaintiff had not attempted to obtain compensation
through existing adequate state law procedures. Waltman v. Payne, No. 05-60588,
2008 U.S. App. Lexis 14757 (5th Cir.).
Married couple failed to show that officers
violated their clearly established rights in allegedly seizing the husband's
concealed weapon permit and guns from their home, so that the officers were
entitled to qualified immunity. Their citing of general caselaw on the subject
of warrantless searches of homes was insufficient to defeat the officers' claim
for qualified immunity. The couple also failed to present any evidence that the
officers were authorized to return the property they seized, as they demanded.
Snider v. Lincoln County, No. 07-6196, 2008 U.S. App. Lexis 12116 (Unpub. 10th
Cir.).
Materials which a newsletter publisher mailed to
town officials adequately supported an application for a search warrant because
it included a clearly pornographic picture. This was sufficient to establish
probable cause for a violation of a state harassment statute and for commission
of a breach of the peace. Accordingly, the search warrant was supported by
probable cause, even if the officials were motivated, in seeking the warrant,
to silence or deter the publisher's criticism of the police department in his
newsletter. The publisher also failed to show that this attempt to silence or
deter him, if that was the motive, was successful. Smolicz v. Borough/Town of
Naugatuck, No. 06-5439, 2008 U.S. App. Lexis 12503 (Unpub. 2nd Cir.).
When homeowners lived in a small house which had
a security door which was difficult to breach, officers could properly be found
by a jury not to have acted unreasonably in forcing the door open while
executing a search warrant when they received no response within five to eight
seconds of knocking on the door and announcing their police presence. The issue
of whether the officers acted unreasonably was for the jury, and they could
have found the officers to have acted unreasonably, but did not do so. Howell
v. Polk, No. 06-16418, 2008 U.S. App. Lexis 15037 (9th Cir.).
While a district attorney who reviewed and
approved an affidavit for a search warrant for a student's residence was only
entitled to qualified, rather than absolute immunity, since she was not acting
in her prosecutorial role at the time, the plaintiff student failed to show
that a reasonable prosecutor should have known that the professor he was
accused of defaming in an online journal was a public figure, that the
statements made involved a matter of public concern, and that the statements
were not made with the actual malice which was then required for the student to
be subject to criminal prosecution under a Colorado state libel statute. The
prosecutor was therefore entitled to qualified immunity. The lawsuit was
dismissed, and the prosecutor was also awarded costs. Mink v. Knox, Civil Case
No. 04-cv-00023, 2008 U.S. Dist. Lexis 46193 (D. Colo.).
County police officers, a city police officer,
and an FBI agent were conducting surveillance on a street when they thought
they saw a burglary in progress at a house. They entered the house, and
encountered two children, one of whom they tackled, pointing a gun at his head,
and using mace against him, while the second child watched. Other children were
in a vehicle outside the home with their mother, and officers attempted to stop
it. In a lawsuit brought by the mother and her six children, a federal trial
court granted the FBI agent summary judgment on claims concerning the alleged
seizure of the vehicle and its occupants, since there was no evidence that he
was anywhere near the vehicle at the time, and could not be held vicariously
liable for the alleged actions of the other defendants concerning the vehicle,
since they did not act at his direction or even with his knowledge. The appeals
court denied the motion by the FBI agent, the city officer, and one of the
county officers for summary judgment on claims by one child who was inside the
house for excessive use of force. The court ruled that the alleged spraying of
the child with mace while two other defendants allegedly held guns to his head
could constitute "excessive" use of force. Couden v. Duffey, No.
03-369, 2008 U.S. Dist. Lexis 9681 (D. Del.).
Summary judgment was properly denied to the
defendant in a lawsuit challenging the warrantless entry onto the plaintiff's
property to conduct an inspection for suspected criminal violations of a land
use ordinance. Rejecting the argument that the entry was part of an
administrative inspection, the court noted that the purpose of the entry was
also to attempt to find violations that could result in the imposition of
criminal sanctions. Such criminal investigations may not be conducted within
the curtilage of a person's home without a warrant, unless there are exigent
circumstances. Jacob v. West Bloomfield, No. 07-1534, 2008 U.S. App. Lexis
14185 (6th Cir.).
A trial court improperly dismissed a federal
civil rights lawsuit claiming that a sheriff's investigator and a private
citizen entered the plaintiff's barn and took two guns, which subsequently
became the basis for revoking the plaintiff's probation. The private citizen
was the one who took the guns from the barn and transported them, but the
appeals court noted that the plaintiff alleged that the private citizen acted
on the investigator's direction and instructions, so that his actions became
state action, and his very purpose in being there was to assist the
investigator. Further proceedings were therefore ordered. Radunz v. Bon Haden,
No. 07-2726, 2008 U.S. App. Lexis 13164 (Unpub. 7th Cir.).
Exigent circumstances did not justify a
warrantless entry into an arrestee's home as part of an investigation for
spousal abuse. At the time of the search, under applicable Ninth Circuit law,
the county's policy of allowing such a warrantless entry into a residence with
the consent of a co-tenant, such as was obtained from the arrestee's wife at
the time, was permissible. However, since the U.S. Supreme Court subsequently
held otherwise, [In Georgia v. Randolph, #04-1067, 547 U.S. 103 (2006), where
it held that officers' warrantless entry was unconstitutional where one
co-tenant consented to entry and the other co-tenant refused], the court
reasoned, the policy at issue was actually unconstitutional, and a
"deliberate indifference" legal standard should have been applied to
the plaintiff's Fourth Amendment claim concerning the warrantless entry. While
the deputies obtained consent for the entry from the wife, the husband/arrestee
denied consent. The arrestee was entitled to summary judgment on claims for
warrantless entry and unlawful arrest. While the plaintiff was subsequently
convicted of spousal abuse, the court rejected the argument that success in the
immediate lawsuit would necessarily imply the invalidity of that conviction.
Ohlsen v. County of San Joaquin, No. 2:06-cv-2361, 2008 U.S. Dist. Lexis 44566
(E.D. Cal.).
Hotel guests faced criminal charges on the basis
of evidence found by an officer during a warrant-based search of their room.
The charges were dropped, however, after the trial court suppressed the
evidence, finding that the search was unlawful. The plaintiffs then sued the
city and the state drug enforcement officer who conducted the search. A federal
appeals court ruled that the suppression of the evidence by the court in the
criminal case was not binding in the civil rights case as to whether the
officer had probable cause for the search of the hotel room, and further found
that, under the totality of the circumstances, there had been probable cause
for the search. Summary judgment was therefore upheld for the officer, although
on a different basis than had been used in the trial court's reasoning, which
had held that the plaintiffs failed to show that they suffered any damages
because of the search. Cox v. Pate, No. 07-1635, 2008 U.S. App. Lexis 12747
(Unpub. 3rd Cir.).
Success on his claims that law enforcement
personnel engaged in activities intended to induce false statements to obtain
search warrants for his house and person, to arrest him, and to use at his
criminal trial would imply the invalidity of his conviction, which had not been
overturned, an arrestee could not pursue his federal civil rights lawsuit. His
lawsuit was barred under the principles set down by the U.S. Supreme Court in
Heck v. Humphrey, #93-6188, 512 U.S. 477 (1994). Hindman v. Healy, No.
07-12931, 2008 U.S. App. Lexis 10749 (Unpub. 11th Cir.).
A warrantless search of the area surrounding a
shed where dogs were kept on a property did not violate the property owner's
Fourth Amendment rights. The trees and bushes around the property did not limit
access to or visibility of the shed from adjacent properties, and the shed was
clearly meant for dogs and not for "intimate human activities," so
that it was not within the curtilage of the owner's home, and there was no
heightened expectation of privacy there. Simko v. Intravaia, No. 06-5369, 2008
U.S. App. Lexis 9417 (2nd Cir.).
Disputed issues as to whether police officers
heard a loud disturbance and an agitated voice coming from apartments in a
building made summary judgment improper in a lawsuit contending that they
violated the Fourth Amendment by entering the premises without a warrant. The
issue was whether the officers reasonably believed that someone in the building
was in imminent danger, justifying the warrantless entry. Kubicki v. Whitemarsh
Township, No. 06-4905, 2008 U.S. App. Lexis 5864 (3rd Cir.).
At the time that an officer made a warrantless
entry into a woman's home to search for the subject of a civil commitment
order, the law on whether such an order could constitute exigent circumstances
to justify such an entry and search on the home of an unrelated third party's
home was not clearly established. The officer, therefore, was entitled to
qualified immunity. Bates v. Harvey, No. 07-10570, 2008 U.S. App. Lexis 4559
(11th Cir.).
The son of a resident of a house was a fugitive,
with a number of outstanding arrest warrants. The officers, believing that the
son was hiding inside his father's home and lived there, approached the
residence, and the father allegedly blocked their way as they attempted to
enter. The officers handcuffed him and threw him into a chair, where he injured
his back. Officers searched the home, but failed to find the son. A federal
appeals court found that the entry was lawful under these circumstances, and
that handcuffing the father and putting him in the chair was not an excessive
use of force, based on his failure to cooperate with the officers. The father's
unlawful arrest claim was also rejected, because he pled guilty to driving
without a license. Covington v. Smith, No. 07-1744, 2008 U.S. App. Lexis 601
(7th Cir.).
A warrantless search of the plaintiff's hotel
room, if it did violate the Fourth Amendment, did not violate a clearly
established reasonable expectation of privacy, so that the defendants were
entitled to qualified immunity. The plaintiff could not rely on case law
decided after the incident to defeat the defendants' defense of qualified
immunity. Carter v. O'Malley, No. 06-35548, 2008 U.S. App. Lexis 6013 (9th
Cir.).
In a case where officers entered a home on the
basis of a search warrant for the home next door, there was unquestionably a
violation of the homeowners' Fourth Amendment constitutional rights, since
there was no justification for entering this home. The officers, however, were
entitled to qualified immunity because they made efforts which were reasonable,
although insufficient, to identify the right house to search. The officers did
not intentionally enter the wrong home, and terminated the search after
discovering their mistake. There was a disputed issue as to whether one officer
remained in the house too long after the mistake was discovered, but a jury found
in his favor. Rogers v. Hooper, No. 07-40809, 2008 U.S. App. Lexis 6509 (5th
Cir.).
Deputy sheriff did not use excessive force or act
unreasonably in detaining and tackling a man while a no-knock warrant to search
for weapons and drugs was being executed on a neighbor's residence. The deputy
tackled him and took him to the ground after he failed to get on the ground in
response to a command. The deputy's belief that this use of force was needed
was not unreasonable, based on the exigent circumstances of the quickly
occurring situation. Chidester v. Utah County, No. 06-4255, 2008 U.S. App.
Lexis 4918 (10th Cir.).
When an arrestee's parents gave deputies
permission to enter their home and remove him, their warrantless entry did not
violate the Fourth Amendment. A jury returned an award for the deputies on the
arrestee's excessive force claim. Zamora v. Smith, No. 05-15622, 2008 U.S. App.
Lexis 3973 (9th Cir.).
Law enforcement agents did not have a warrant,
consent, or exigent circumstances justifying their entry into a home after a
prearranged delivery of a box they suspected contained narcotics. There was no
evidence that the contents of the package were in danger of being disposed of,
nor was there any threat to the officers. The owner of the home was entitled to
partial summary judgment on his claims of unlawful entry by the defendants, who
were denied qualified immunity. Demayo v. Nugent, No. 07-1623, 2008 U.S. App.
Lexis 3759 (1st Cir.).
A deputy sheriff's obtainment of consent to search
a farm by threatening to detain a couple, the owners, while a warrant was
sought for the search violated the Fourth Amendment, particularly since there
was a "unique" coercive factor in that the deputy sheriff had also
served as the attorney for the suspects. The deputy sheriff, however, was
entitled to qualified immunity, as the illegality of this "unique"
circumstance was not clearly established. The defendant was a reserve-force
deputy as well as a lawyer, and had drafted the suspect couple's will twenty-eight
months before. He subsequently participated in a search of their farm, during
an investigation of marijuana allegedly being grown on their farm. Eidson v.
Owens, No. 07-7007, 2008 U.S. App. Lexis 3149 (10th Cir.).
Officers were not entitled to qualified immunity
on claims that they unlawfully entered a woman's home without consent or
exigent circumstances while responding to a domestic disturbance call. At the
time of their entry, the domestic dispute had allegedly been "neutralized"
and there were no facts that would have caused the officers to believe that any
one was in danger inside the home. The court also found that there was evidence
from which a jury could find that an officer used excessive force in arresting
the woman, causing her injuries at a time when she had not committed a crime
and did not pose a threat to anyone. Campbell v. Clay, No. 07-13040, 2008 U.S.
App. Lexis 2928 (11th Cir.).
A search warrant presented to the occupant of a
building was not invalid simply because the copy shown to him lacked the
signature of the issuing judge. The court found that the original of the
warrant was properly signed and issued, and was supported by probable cause.
The court also found that it was legitimate for officers to detain the building
occupant while conducting their search, which was occasioned by his employment
of a suspect, even though the search did not involve a quest to find
contraband. The court also rejected the occupant's argument that excessive
force, which injured his wrists, was used in handcuffing him and detaining him
in a squad car during the search. Housley v. City of Edina, No. 07-1330, 2008
U.S. App. Lexis 3799 (8th Cir.).
A code enforcement officer for a town did not
conduct a "search" of a landowner's property when he observed an
alleged code violation (substantial improvements made to one of the owner's
trailers without a building permit) from adjoining property while investigating
a litter complaint. The officer was authorized to subsequently enter the owner's
land to post a stop-work order, so that his entry to do so was not trespass.
Woodhull v. Town of Riverhead, No. 2006-11179, 2007 N.Y. App. Div. Lexis 12861
(A.D. 2nd Dept.).
A warrantless search of a home, which had been
the scene of a murder of a married couple, did not violate the Fourth Amendment
when it was carried out with the consent of the couple's daughter, who was one
of the executors of their estate. During the search of a storage room, a
plastic container was found with bullets similar to those used to commit the
murder, with the container owned by the son of the murdered husband. The
evidence was subsequently used to obtain a warrant to search the son's
apartment. In a lawsuit by the son, the court found that he did not have a
legitimate expectation of privacy in the unlocked storage room or in property
under the control of the decedents' estates. Warner v. McCunney, No. 05-5167,
2008 U.S. App. Lexis 279 (3rd Cir.).
City was properly held not liable, on the basis
of two officers' warrantless entry into the plaintiffs' home through a closed
but unlocked side door. The officers were looking for the daughter of one of
the officers, who they thought might be at the home because she was dating the
son of the woman who lived there. The city disciplined the officers and
criminally prosecuted them, while refuting the allegation that it had a custom
or policy that caused a constitutional violation by the officers. The officers
were also acquitted in the state criminal proceeding because their conduct was
found to fit within a state law emergency aid exception to the requirement of a
warrant. McClendon v. City of Detroit, No. 05-2734, 2007 U.S. App. Lexis 27692
(6th Cir.).
Search warrant used to search family residence
for an armed robbery suspect who had already been taken into custody was not
supported by probable cause. Elliot v. Lator, No. 06-2006, 2007 U.S. App. Lexis
18976 (6th Cir.).
Homeowner's claim that officers violated her
rights in searching her home was barred when a judgment in her favor would have
necessarily implied the invalidity of her guilty plea to a charge of violating
a municipal code ordinance, and the homeowner did not state that the conviction
had been overturned. Ray v. Tsunoda, No. 05-56879, 2007 U.S. App. Lexis 20133
(9th Cir.).
Plaintiff could proceed with his claim that
officers who seized a moped from his living room while executing a search
warrant unconstitutionally deprived him of his property without due process of
law, since it was not within the scope of the search warrant. The seizure of
$142 from the plaintiff's pocket, however, fell within the scope of the warrant
since it authorized the seizure of property constituting evidence of drug
transactions, including currency. Cooper v. City of Fort Wayne, No.
1:06-CV-161, 2007 U.S. Dist. Lexis 81148 (N.D. Ind.).
Deputy sheriffs found drugs in the study of a
home while accompanying the girlfriend of a man who lived there. The girlfriend
was moving out and had gained access to the study through the use of a bolt
cutter. She had summoned the officers because she thought her boyfriend had
hidden some of her belongings in his locked study, and was fearful that he
would return to the residence and harm her. While the search of the study was
unreasonable because the girlfriend did not have authority to consent to it,
the law on the subject at the time was not clearly established, and the
deputies could have reasonably believed that she had authority to consent, so
that they were entitled to qualified immunity. Moore v. Andreno, No. 06-3623,
2007 U.S. App. Lexis 24649 (2nd Cir.).
A man initially convicted of rape and other
crimes, and subsequently found not guilty on retrial, failed to show that his
home was searched after a search warrant for the premises had expired, or that
the officers exceeded the scope of the warrant when they searched a bedroom
occupied by his roommate. The mere fact that the plaintiff had a roommate did
not cause his home to be converted into a multi-unit building or apartment house,
so that the warrant for the premises authorized the search of the entire home.
Durham v. McElynn, No. 07-1857, 2007 U.S. App. Lexis 24496 (3rd Cir.).
After a patron of an auto business complained
that the vehicle identification number (VIN) on a car he bought there did not
match the car's VIN sticker, officers carried out an administrative search
of the business, detaining its employees for 10 hours, searching employees,
advancing with drawn weapons, seizing 150 cars, and seizing voluminous records.
A federal appeals court ruled that the limited scope of an administrative
search was exceeded, and that the "massive" show of force presented
by the officers was more typical of a criminal raid, which requires a search
warranty. There were also disputed issues as to whether or not the search was
part of an "illegal plan" designed to oust the business from the
area. Bruce v. Beary, No. 06-15304, 2007 U.S. App. Lexis 21283 (11th Cir.).
Officers had probable cause to believe that a
landowner had threatened to commit a crime of violence when he had previously
told them that he would do "whatever" he had to do to
"protect" his purported property rights in connection with a dispute
between him and a developer, and he had also previously displayed firearms to
the developer's employees. They had probable cause to obtain an arrest warrant
and search warrant, particularly after the landowner stated that they were not
taking actions needed to avoid "a bloodbath" occurring as a result of
the dispute. A search warrant obtained for the home of the landowner's mother's
home, however, was not supported by probable cause, as he had not recently
lived there, and there was no allegation that any weapons were stored there, so
further proceedings were required on claims arising out of that particular
search warrant. Walczyk v. Rio, No. 04-5711, 2007 U.S. App. Lexis 18255 (2nd
Cir.).
A woman shot by police officers who came to her
apartment after she allegedly threatened to kill herself with a shotgun failed
to show that the search of her apartment violated her civil rights under Cal.
Civ. Code Sec. 52.1. That statute requires, for liability, that constitutional
rights be violated as a result of a threat, intimidation, or coercion, which
was not shown, even if the plaintiff could show that the search violated the
Fourth Amendment. Additionally, the search did not take place until two hours
after the plaintiff had been taken to the hospital for treatment of her wounds,
so that the use of force was not related to the search. A federal appeals court
upheld the jury's verdict for the city and police officers on claims of both
excessive use of force and under the California statute. Jackson v. City of
Fresno, No. 05-16857, 2007 U.S. App. Lexis 11838 (9th Cir.).
Officers trying to apprehend a potentially armed
suspect, with probable cause to arrest him for assault, did not violate the
rights of a woman and her daughter when they entered the yard surrounding the
building containing their apartment, and inserted a rifle in the interior of
the mother's bedroom. The woman and her daughter did not have a reasonable
expectation of privacy in the front yard of the building so that entry into the
yard did not violate their Fourth Amendment rights. Any seizure of the mother
and daughter which could be found to have occurred was also found to be
objectively reasonable under the circumstances. The officers' actions allegedly
included pointing weapons at the mother and daughter and telling them to return
to the apartment. Reeves v. Churchich, No. 04-4240, 2007 U.S. App. Lexis 9301
(10th Cir.).
Defendant officers who conducted a raid on the
plaintiff's home were not entitled to summary judgment since they allegedly
entered his residence without a warrant, consent, or exigent circumstances, and
based only on the invitation of their informant. There was no legal basis for
the informant being able to invite police officers into the home merely on the
basis that he had been invited to enter. The defendant officers were not
entitled to qualified immunity under the circumstances. Callahan v. Millard
County, No. 06-4135, 2007 U.S. App. Lexis 16853 (10th Cir.).
In a lawsuit by apartment tenants challenging the
searches of their residences under administrative search warrants issued by a
city, a federal appeals court upheld the validity of the warrants. Under the
city's ordinance, the administrative warrants, used to perform inspections of
buildings were issued without a showing of probable cause that a particular
building might contain code violations. The issue, the court found, was whether
the scheme of inspections adopted by the ordinance was based on reasonable
administrative or legislative standards and served valid public purposes.
Whether there were or were not violations in the particular buildings or not
was not relevant to that analysis, according to the court. Jones v. Wildgen,
No. 06-3384, 2007 U.S. App. Lexis 18008 (10th Cir.).
The defense of qualified immunity available to
officers in federal civil rights lawsuits filed under 42 U.S.C. Sec. 1983 does
not apply to claims arising out of the same incident asserted in a California
state law civil rights lawsuit filed under Cal. Civil Code Sec. 52.1 for
interference with statutory or constitutional rights. The case involved claims that
deputies acted improperly in connection with the plaintiffs' detention, the
search and seizure of their car, and the subsequent search of their home. While
the deputies were entitled to qualified immunity on a federal civil rights
claim because certain actions, even if unlawful, were "reasonable
mistakes," an intermediate California appeals court ruled that the defense
of qualified immunity does not apply as to the California state civil rights
claim, requiring further proceedings. Venegas v. County of Los Angeles, No.
B186764, 2007 Cal. App. Lexis 1267 (Cal. App.).
A police detective was entitled to qualified
immunity on a claim that he had unlawfully made a warrantless entry into an
apartment. When he went to the apartment to investigate a suspicion that the
tenant's son had been involved in an armed robbery, he saw that the door was
slightly ajar, and the door also had marks that could have been made by the use
of burglary tools. This, and the fact that footsteps were heard from inside
made it reasonable for the detective to believe that a break-in was occurring,
providing exigent circumstances to enter. Dockery v. Doyle, No. 06-15513, 2007
U.S. App. Lexis 12279 (11th Cir.).
Officers who searched the plaintiff's house
without a warrant were entitled to qualified immunity because the information
they had at the time of their entry indicated to them that a number of her
dogs, seen and heard barking inside the apparently uninhabited, partially
renovated house, lacking heat and electricity on a cold day, were in urgent
need of assistance. There was no clearly established law as to whether officers
could make a warrantless entry into a home to provide emergency assistance to
animals. Shapiro v. City of Glen Cove, No. 05-3827, 2007 U.S. App. Lexis 12138
(2nd Cir.).
Fire inspectors and deputies executing a valid
inspection warrant for a building were entitled to detain a man on the premises
while doing so. They did not violate his rights by then issuing him a citation,
even though his wife held the title to the property, because the city's fire
code allowed them to issue citations to any responsible person on the premises.
The plaintiff also failed to show that the inspection was substantially
motivated by his prior litigation against the city. Vaccaro v. Carson City, No.
05-15843, 2007 U.S. App. Lexis 10930 (9th Cir.).
An officer who entered the plaintiff's bedroom
without a warrant had an objectively reasonable good-faith belief that he had
obtained a valid consent to search the bedroom from the plaintiff's father, and
to take whatever items he needed. Additionally, there was no evidence to show
that the bedroom door was locked before the officer entered, or that the
officer had any reason to believe that the father did not share authority over
the bedroom. Hughes v. Coconut Creek Police Department, No. 06-14537, 2007 U.S.
App. Lexis 12074 (11th Cir.).
Plaintiff failed to show that a police officer
assisted and conspired with two private citizens to burglarize her home and
steal her possessions. While the officer was shown to have met with one of the
private citizens on the morning of the burglary, evidence showed that the
meeting involved a complaint about a separate crime. Any allegation that the
officer had prior knowledge of the plans for the burglary were simply
"unsubstantiated speculation." Ostensen v. Suffolk County, No.
05-4456, 2007 U.S. App. Lexis 12183 (2nd Cir.).
Plaintiff in lawsuit over the alleged unlawful
search of a woman's apartment pursuant to a warrant was not entitled to an
order compelling the city and officers who obtained the warrant to reveal the
identity of the confidential information whose information was used to provide
probable cause for the warrant. The plaintiff failed to show how the identity
of the informant had anything to do with whether it was illegal to have sought
to obtain a search warrant, arrest the plaintiff and search her apartment based
on the information they had. Guzman v. City of Chicago, No. 05C6617, 2007 U.S.
Dist. Lexis 28377 (N.D. Ill.).
Officer was not entitled to summary judgment in
property owner's lawsuit alleging that he obtained a search warrant for his
house by use of an affidavit containing false information. While an informant
allegedly told officers that there were stolen goods in a white shed near the
plaintiff's home, the affidavit used to obtain the search warrant stated that
the informant told the police that the stolen goods were in the house. The
plaintiff claimed that this false information was used in the affidavit on
purpose in order to provide an opportunity to search his house for drugs
without probable cause to do so. The trial judge found that there was evidence
that the officer had an "ulterior motive" for searching the
plaintiff's house for drugs, as indicated by the fact that the search of the
house continued for two hours after the stolen property sought was found in the
shed. Durfee v. Rich, No. 02-10041, 2007 U.S. Dist. Lexis 23340 (E.D. Mich.).
Law enforcement officials, including federal
employees, did not violate a homeowner's Fourth Amendment rights when they
searched his residence to try to find his son, the subject of three arrest
warrants, because they reasonably believed that the house was also where the
son resided and that the son was then at home, despite the fact that he was
ultimately not found during the search. The officers also did not use excessive
force in handcuffing the homeowner and making him sit down during the search.
Covington v. U.S. Dept. of Justice, No. 05-1204, 2007 U.S. Dist. Lexis 16872
(C.D. Ill.).
Trial court found that search warrant for
residence was overly broad. A jury then awarded $3,000 in actual damages and
$3,500 in punitive damages against a sheriff for damage to the plaintiff's
property. The trial judge found that there was adequate evidence to support the
jury's conclusion that the sheriff should be liable for property damage, but
that a deputy should not, as he did not cause the damage. The court also found
that the jury, in arriving at the figure of $6,500 in damages, appeared to have
arrived at a "compromise" verdict that was not consistent with the
evidence, entitling the plaintiff to a new trial against the sheriff. Cassady
v. Goering, No. 03-cv-01008, 2007 U.S. Dist. Lexis 11175 (D. Colo.)
Police officers were not authorized to make
warrantless regulatory inspections of bars under regulatory scheme, so that
trial court improperly granted dismissal of bar owner's Fourth Amendment
claims. The plaintiff, however, failed to show that the township police
department had a custom of raiding establishments owned by or associated with
African-Americans. Watson v. Abington Township, No. 05-4133, 2007 U.S. App.
Lexis 3485 (3rd Cir.).
Search of residential premises pursuant to search
warrant was proper, despite the suspect's claim that the warrant was obtained
through "judicial deception" by falsely calling a government witness
a "confidential informant." The court found that even if that
description was inaccurate, the plaintiff did not show that the warrant would
not have been issued in its absence. Further proceedings were ordered, however,
on Montana state law right to privacy claims. Nickel v. Woods, No. No.
05-35592, 2007 U.S. App. Lexis 7482 (9th Cir.).
D.E.A. agents who entered a drug suspect's house
without a warrant and then allegedly stripped him of his clothes, and sprayed
him with a fire hose for 15 minutes in temperatures below freezing were
entitled to qualified immunity from liability. The agents did so after a
confidential informant who had entered the house, where a methamphetamine lab
was suspected, started complaining about chemical fumes and coughing, and they
were afraid he had been exposed to some noxious chemicals. This gave them
exigent circumstances to enter the house, and probable cause to suspect that
the lab was in fact located there. Their actions with respect to the suspect
were justified by their fear that toxic chemicals had saturated his clothing,
and their desire to avoid exposing others to these chemicals. Glover v. Eight
Unknown D.E.A. Agents/Drug Task Force Agents, No. 06-13061, 2007 U.S. App.
Lexis 3948 (11th Cir.).[N/R]
Any "exigent circumstances" which
existed after the controlled delivery of a "suspicious" package to a
residence was deliberately created by law enforcement, so that entry into the
home without a search warrant or arrest warrant, combined with a
"protective sweep" of the premises was not justified. The officers,
however, were entitled to qualified immunity as no prior case law had ruled on
the specific narrow issue presented, so that the law on the subject was not
"clearly established." Demayo v. Nugent, Civil Action No.
06-11510, 2007 U.S. Dist. Lexis 11847 (D. Mass.).[N/R]
Officer who went to a home to investigate a 911
call which came from there had voluntary consent from a resident to enter to
see that everything there was ok. The officer did not exceed the scope of the
consent given, and left after approximately one and a half minutes, so that
there was no violation of the Fourth Amendment. Owens v. Town of Delhi, No.
06-0057, 2007 U.S. Dist. Lexis 1246 (W.D. La.). [N/R]
Drug Enforcement Administration (DEA) agent was
entitled to qualified immunity for forcibly seizing a small recording tape
while searching a residence. The woman from whom he seized it was present and
stated that she was closely related to the occupants of the house, and placed
the tape in her mouth to prevent him from obtaining it after telling him that
she did not want the police to hear it. While the presence of the tape, by
itself, might not be suspicious, the woman's actions and statements created a
suspicion that it contained evidence of crime justifying its seizure. Cooper v.
Bonaventura, No. 7:06CV00053, 2007 U.S. Dist. Lexis 5126 (W.D. Va.). [N/R]
Federal appeals court reinstates lawsuit against
police officers for obtaining a search warrant and carrying out a search, based
on allegations that they did so in bad faith, and knew that the supporting
statements presented were misleading and false. Schindler v. French, No.
05-4174, 2007 U.S. App. Lexis 941 (2nd Cir.). [N/R]
Affidavit for search warrant for apartment
provided adequate probable cause to believe that evidence of drug-related crime
would be found there, and made it reasonable for officers to believe that a
risk of the destruction of evidence justified execution of the search warrant
at night. Occupant could not assert her claim that the officers who searched
her apartment failed to "knock and announce" before they entered,
when she conceded that she was asleep when the officers entered. Taylor v. City
of Detroit, No. 05-CV-70489, 2007 U.S. Dist. Lexis 4587 (E.D. Mich.). [N/R]
Officers did not violate the rights of a
barbershop owner, a barber, or customers of the business when they came into
the premises with their guns drawn in a "low-ready" position after
being told that a suspect sought in a shooting had run into the barbershop.
Under the circumstances, their brief detentions of the occupants of the
business or of a barber standing outside the shop did not violate the Fourth
Amendment. The officers reasonably believed that they needed to protect
themselves against potential danger. Halsell v. Etter, No. 05-4577, 2006 U.S.
App. Lexis 31216 (6th Cir.). [N/R]
Exigent circumstances supported an officer's
entry without a warrant in a home while chasing the homeowner's son, who he
allegedly saw selling drugs, when he was motivated by a desire to apprehend the
suspect and protect the occupants of the residence. The officer was also
justified in arresting the homeowner for allegedly pushing the officer when he
entered the home. Sargent v. Idle, No. 06-1780, 2006 U.S. App. Lexis 30144 (7th
Cir.). [N/R]
Officers' claim on appeal that a federal civil
rights lawsuit verdict against them for warrantless entry into a woman home,
and use of excessive force by an officer was not adequately supported by the
evidence was frivolous, and officers were not entitled to qualified immunity.
The officers entered without a warrant based on a neighbor's concern the
homeowner's ex-wife was inside and was not entitled to be there. The officers
allegedly did not announce themselves, confronted the woman inside by placing a
gun near her head, and left, saying "never mind" after she convinced
them that she owned the home, having received ownership through the divorce
proceeding. Award of $27,000 in compensatory damages and $111,000 in punitive
damages upheld. Frunz v. City of Tacoma, No. 05-35302, 2006 U.S. App. Lexis
28071 (9th Cir.). [N/R]
A county's requirement that welfare applicants
all agree to warrantless home visits in order to be eligible for benefits did
not violate the U.S. or California Constitutions, or state welfare regulations.
Sanchez v. County of San Diego, No. 04-55122, 464 F.3d 916 (9th Cir.). [N/R]
Landowner could pursue federal civil rights
lawsuit alleging that the city and another entity conspired to publish a map
which falsely showed that a public trail crossed her property, failed to
correct it once the error became known, and that private persons, encouraged
and aided by the defendants, then trespassed onto her land. Presley v. City of
Charlottesville, No. 05-2344, 464 F.3d 480 (4th Cir. 2006). [N/R]
While executing a search warrant investigating
the alleged sale of drugs from a man's garage, there was no reasonable
justification for keeping the suspect outside during the search with his
genitals allegedly exposed for an hour. Under the circumstances, there was no
possibility that he would either arm himself or destroy any evidence once he
was under the officers' control. Additionally, if the facts were as alleged, it
would be clear to any reasonable officer that these actions were illegal, so
that the officers' were not entitled to qualified immunity. The appeals court
did uphold, however, summary judgment for three officers not directly involved
in the alleged rights violation. Macias v. County of Los Angeles, No. B 182831,
2006 Cal. App. Lexis 1684 (Cal. App. 2nd Dist.). [N/R]
Even if the 8 paragraphs that a homeowner challenged
in an 11-page, 38-paragraph affidavit for a search warrant for his residence
were false, the remainder of the affidavit was adequate to supply probable
cause for the issuance of the search warrant. Accordingly, the homeowner's
Fourth Amendment rights were not violated and the FBI agent who filed the
affidavit to obtain the warrant was entitled to qualified immunity. Haire
v. Thomas, 06-12428, 2006 U.S. App. Lexis 27608 (11th Cir.). [N/R]
Even though a search warrant for a home did not
describe the property to be seized, a reasonable officer could have believed
that it was sufficient because of its reference to an attached affidavit which
did mention the evidence sought. Accordingly, the officers were entitled to
qualified immunity. Officers were not constitutionally required to serve the
search warrant on the resident before beginning the search. Finally, while the
warrant authorized the search to take place any time between 6 and 10 a.m., the
officers' minor deviation from this, in beginning the search at 5:50 a.m. did
not violate the resident's constitutional rights. Rivera Rodriguez v.
Beninato, No. 05-2748, 2006 U.S. App. Lexis 28141 (1st Cir.). [N/R]
In a lawsuit against a fire captain for
warrantless entry into a multi-unit building owner's apartment as part of an
inspection for fire warning devices, he was not entitled to qualified immunity,
based on a factual issue as to whether a reasonable officer would have
realized, under the circumstances, that the door he went through did not go to
a common area of the building, but instead into a private apartment. Gayda v.
City of Nashua, No. 05-cv-244, 2006 U.S. Dist. Lexis 73465 (D.N.H.). [N/R]
Officers' entry into a home without a warrant or
consent was justified by their reasonable belief that there might be a minor
inside the residence in need of immediate assistance because of possible
alcohol poisoning. Hardesty v. Hamburg Township, No. 05-1346, 2006 U.S. App.
Lexis 22441 (6th Cir.). [2006 LR Nov]
While officers executing an arrest warrant in a
home may perform a protective sweep incident to the arrest in order to protect
themselves or others, if they continued searching through the house and garage
after the arrest for the purpose of finding more than was in plain view, this
would violate the Fourth Amendment. Higdon v. Wells County Sheriff's Office,
No. 1:04-CV-064, 426 F. Supp. 2d 854 (N.D. Ind. 2006). [N/R]
Officers did not violate the rights of the
parents of a shooting victim when they entered the house as part of their
investigation of the shooting. Any improper entrance into the premises by third
parties during the officers' presence was, at most negligence, which could not
be the basis for a federal civil rights claim. Smith v. Busby, No. 04-3544, 172
Fed. Appx. 123 (8th Cir. 2006). [N/R]
Search warrant for arrestees' residence was
supported by probable cause based on undercover officer's statements that he
twice bought cocaine from persons who, after receiving money for the drugs,
entered the residence and later returned with the narcotics. Urbanique
Production v. City of Montgomery, No. Civ.A.2:03CV1150, 428 F. Supp. 2d 1193
(M.D. Ala. 2006). [N/R]
Officers could not be held liable for unlawful
search and seizure when they conducted their search of a residence on the basis
of a facially valid search warrant. Overholt v. Montville Township, No.
05-3118, 169 Fed. App. 447 (6th Cir. 2006). [N/R]
The finding that the occupant of a home
voluntarily consented to a warrantless entry at nighttime barred a claim that
the officer's entry violated his rights, despite her argument that she was ill
and "confused" at the time of the incident, in the absence of any
showing that the officer coerced her consent. Stone v. Town of Westport, No.
3:04CV18, 411 F. Supp. 2d 77 (D. Conn. 2006). [N/R]
Police officers, including S.W.A.T team members,
were entitled to qualified immunity for surrounding the home of a man who had
fired shots into the air and ground nearby, entering the home forcibly without
a warrant, and using pepper gas and a flashbang in an attempt to flush him out.
Assuming that the use of a second flashbang, which burned down the house, was
excessive, it still did not violate any "clearly established right."
Factual disputes about whether the suspect was still armed and was threatening
officers at the time they shot and killed him, however, barred qualified
immunity for the officers on a claim that the use of deadly force was
excessive. Estate of Bing v. City of Whitehall, No. 05-3889, 2006 U.S. App.
Lexis 19287 (6th Cir.). [2006 LR Sep]
Property owner's claims that officers searched
his property without warrants, failed to notify him before the search, and
unlawfully seized items of his property appeared to be baseless, when the
officers provided evidence of the search warrants issued, the basis for
obtaining the warrants, and that they both gave him notice of the search before
they conducted it, and gave him copies of the search warrants afterwards. The
plaintiff, by contrast, presented nothing in opposition but his own unsworn and
unnotarized statement repeating his claims, entitling the defendants to summary
judgment. Holt v. Blakley, No. 05-13245, 167 Fed. Appx. 86 (11th Cir. 2006).
[N/R]
A warrantless search of a home belonging to a
probationer after he allegedly violated a condition of his probation was not a
violation of the Fourth Amendment. The probationer had agreed to make himself
available for such searches while on probation, and this made the search of his
home reasonable. Carroll v. Barnack, No. 05-2412, 166 Fed. Appx. 866 (7th Cir.
2006). [N/R]
Warrantless entry into a suspect's house was
supported by exigent circumstances when the suspect shoved one officer and
attempted to shut the door on him, and the suspect was creating a disturbance
giving rise to a belief that he posed a danger to officers and others. Davis v.
Township of Paulsboro, No. 02-CV-3659, 421 F. Supp. 2d 835 (D.N.J. 2006). [N/R]
Deputies were not entitled to qualified immunity for
making an entry into a home without consent or exigent circumstances to make a
warrantless arrest of a resident. Bashir v. Rockdale County, GA, No. 05-12020,
445 F.3d 1323 (11th Cir. 2006). [2006 LR Jul]
Officers' actions in confining tenants during the
search of their apartment under a warrant which did not state which of two
apartments on the second floor should be searched was "privileged,"
barring their false imprisonment claim against the city. Paulemond v. City of
New York, 812 N.Y.S.2d (Sup. App. Term 2006). [N/R]
Police officers' warrantless entry into backyard
and residence were justified by reports of gunshots coming from the home and
the failure of the residents inside to respond to knocks on the door. Causey v.
City of Bay City, No. 05-1142, 442 F.3d 524 (6th Cir. 2006). [2006 LR Jun]
Even if police officers were
"intruding" into the curtilage of the suspect's home by speaking to
his mother and brother on the home's porch, and even if they were trespassing
by staying after the brother asked them to leave, this did not constitute an
illegal search. The suspect's expectations of privacy were "minimal"
when his mother and brother voluntarily talked to the officers while standing
in front of an open door. Murphy v. Gardner, No. 02CV01918, 413 F. Supp. 2d
1156 (D. Colo. 2006). [N/R]
Police officers did not violate the rights of two
Arkansas business owners by seizing electronic machines from their premises
which including poker and blackjack games, based on a prosecutor's reasonable,
although mistaken, advice that they were illegal under state law. They also
were not required to obtain a warrant for the seizure of the machines, which
were in plain view inside the businesses. Skokos v. Rhoades, No. 05-2374 2006
U.S. App. Lexis 5962 (8th Cir.). [2006 LR May]
Owners of family-run convenience food and liquor
store failed to show that repeated inspections of their premises either
violated their Fourth Amendment rights or their right to equal protection,
despite supposed illegitimate motive of driving them out of business so that
the property could be purchased for use by a larger retailer. Aida Food and
Liquor, Inc. v. City of Chicago, No. 05-2059, 439 F.3d 397 (7th Cir.). [2006 LR
May]
Police detective who mistakenly, but reasonably,
entered the wrong college dorm room while executing a search warrant during a
drug raid was entitled to qualified immunity in student's lawsuit asserting
federal and Maryland state claims for unreasonable search and seizure,
unreasonable detention, and excessive use of force. Mazuz v. State of MD, No.
05-1463, 2006 U.S. App. Lexis 7660 (4th Cir.). [2006 LR May]
Police officers' warrantless entry into apartment
was justified by exigent circumstances concerning reported drug overdose and
the search conducted was justified by the need to find pill bottles in order to
know which drugs had been taken in order to provide medical assistance.
Winchester v. Cosaineau, No. 04-CV-00053, 404 F. Supp. 2d 1262 (D. Colo. 2005).
[N/R]
Officers violated home occupant's constitutional
rights when the evidence was sufficient to establish that they continued to
detain her after all tasks carried out incident to the search of the residence
under a warrant had been completed. Mena v. City of Simi Valley, No. 01-56673,
156 Fed. Appx. 24 (9th Cir. 2005). [N/R]
Police officer was entitled to qualified immunity
when a reasonable officer could have believed that there were exigent
circumstances justifying a search of a house for a suspected murderer in order
to protect other innocent persons from further harm. Federal appeals court
further rules that officers were entitled to qualified immunity for detention
of homeowner in handcuffs for an hour during the search of the residence. Bills
v. City of Rialto, No. 03-56212, 157 Fed. Appx. 981 (9th Cir. 2005). [N/R]
No exigent circumstances existed to support a
warrantless entry into a motel room without consent, so that the arrestee
stated a valid claim for violation of his Fourth Amendment rights in alleging
that an officer deceived him into opening the door to the room and then
forcibly entered the room and arrested him for alleged involvement in the theft
of a car. Butler v. Compton, No. 05-1230, 158 Fed. Appx. 108 (10th Cir. 2005).
[N/R]
Police officers executing search warrant for
drugs in house did not violate the Fourth Amendment by ordering a female
occupant of the residence out of the shower and watching while she dressed in a
robe and other clothes. The court found that the officers did not act
unreasonably in light of the fact that the search concerned suspected narcotics
distribution and concerns about protecting the safety of other officers by not
leaving an individual unsecured. The court also noted that there were no
allegations of "inappropriate touching or comments." Skover v. Titchenell,
No. 04-71523, 408 F. Supp. 2d 445 (E.D. Mich. 2005). [N/R]
A judgment debtor's wife's Fourth Amendment
rights were violated if, as she claimed, Deputy U.S. Marshals entered her home
and seized her property under an expired writ issued to satisfy a judgment. A
reasonable officer would have known that a search and seizure of a resident
under an expired writ would not comply with Fourth Amendment requirements.
Bernstein v. Roberts, No. Civ.A. 02-133, 405 F. Supp. 2d 34 (D.D.C. 2005).
[N/R]
Factual issues as to whether officer had kicked
down a motel apartment door, entered, and struck the occupant without an arrest
or search warrant barred summary judgment for officer in resident's lawsuit for
excessive use of force and unlawful entry. Goins v. City of Detroit, No.
03-CV-74758, 408 F. Supp. 2d 387 (E.D. Mich. 2005). [N/R]
Search of woman's second floor apartment under a
search warrant intended for the third floor apartment of a male suspected of
drug dealing was not a violation of her Fourth Amendment rights when the
entrance to the third floor was a doorway on the second floor, and the suspect,
arrested on the sidewalk outside while selling drugs, told officers he lived on
the second floor. Walker v. Bonenberger, No. 04-3955, 2006 U.S. App. Lexis 4522
(8th Cir.). [2006 LR Apr]
Conservation officer who was lawfully on the
premises did not violate the Fourth Amendment rights of the owner of a
recreational cabin by looking into the window in order to check for a possible
intruder. His basis for his action was a laudable goal of "community
caretaking." Taylor v. Humphries, No. 1:03-CV-225, 402 F. Supp. 2d 840
(W.D. Mich. 2005). [N/R]
Inspection of two boardinghouses for rat
infestation by public health personnel accompanied by police was supported by
probable cause based on warrant issued after information was received
concerning the buildings' filthy conditions. Detention of all occupants of the
buildings during the inspections was reasonable and carried out in a reasonable
manner and for legitimate purposes. Dawson v. City of Seattle, No. 03-35858,
2006 U.S. App. Lexis 1663 (9th Cir.). [2006 LR Mar]
City's ordinance authorizing warrantless
inspections of rental units unless tenants object did not violate the
constitutional rights of landlords, as landlords had no reasonable expectation
of privacy in units rented to either residential or commercial tenants. In
instances where the landlords are themselves the tenants, the ordinance would
be interpreted as also requiring their consent or a warrant. City of Vincennes
v. Emmons, No. 42S02-0504-CV-131, 2006 Ind. Lexis 54 (2006). [2006 LR Mar]
Defendant police officers who were not directly
involved in an allegedly illegal search of a suspect's home could not be held
liable for violations of his civil rights. Evidence was also lacking that a
defendant police sergeant had given any improper instructions to the officers
who did conduct the search. Adams v. City of Auburn Hills, No. 03-2421, 141
Fed. Appx. 446 (6th Cir. 2005). [N/R]
While a search of a business, under a search
warrant, to search for documents concerning ownership of computers, which were
not evidence of crime, violated the rights of the business owners, officers who
obtained and executed the warrant were entitled to qualified immunity from
liability. They consulted with a prosecutor who told them to go ahead and
reviewed the affidavit and warrant, and a judge issued the warrant. Under these
circumstances, their actions were reasonable, even if mistaken. Armstrong v.
City of Melvindale, No. 04-2192, 2006 U.S. App. Lexis 251 (6th Cir.). [2006 LR
Feb]
Officers' observation of obscured vehicle
registration sticker on license plate gave them probable cause to stop truck
for investigation, even if their real motivation was to investigate a 9-1-1
call concerning the driver of a truck allegedly taking photos of a little girl
walking in the area. No reasonable jury could have found that they lacked
probable cause for the stop or that the motorist's subsequent consent to the
search of his truck and home was coerced. Davis v. Novy, No. 04-4096 2006 U.S.
App. Lexis 265 (7th Cir.). [2006 LR Feb]
While officers who made a warrantless entry into
a suspect's home may have been justified, if, as they contended, she committed
a misdemeanor in their presence, and they were in "fresh pursuit" of
her, they failed to state an adequate justification for their second
warrantless entry, which was subsequent to the arrest, so that the home
residents were entitled to a trial on the merits on their claim that the second
warrantless entry violated their rights and constituted a trespass. Bittner v.
Huth, No. 2395, 876 A.2d 157 (Md. App. 2005). [N/R]
Police officer's videotaping of a traffic stop,
and of a subsequent search of the motorist's home, did not violate any clearly
established right of the motorist, who was stopped for speeding. The officer
was also entitled to qualified immunity for asking the driver whether he would
be willing to submit to a search of his person, vehicle and home, which
revealed marijuana in his pocket. While the drugs were suppressed during a
criminal prosecution against the motorist on the basis that the consent given
was not voluntary, the federal appeals court ruled that a reasonable officer,
under the circumstances, could have believed that the consent was consensual.
The Vermont Supreme Court ordered further proceedings, however, as to whether
officers engaged in unnecessarily destructive behavior of the motorist's
property during the search of his home, and whether they violated his rights
when, following the initial search of his home, they returned and allegedly
forced their way in again over his wife's objections. Sprague v. Nally, No.
03-489, 882 A.2d 1164 (Vt. 2005). [N/R]
Warrantless housing code and property tax inspections
of the exterior of a house in a remote rural setting were not a search in
violation of the Fourth Amendment. Widgren v. Maple Grove, No. 04-2189, 2005
U.S. App. Lexis 24656 (6th Cir.). [2006 LR Jan]
Genuine issues of material fact as to whether
officers executing a search warrant at a residence knocked and announced
themselves before entering, and whether they acted maliciously in damaging
property barred summary judgment for them in civil rights lawsuit. They did not,
however, act unreasonably in handcuffing a resident found on the premises
during the search for drugs and weapons. Notice v. Koshes, No.
Civ.A.3:03CV1484, 386 F. Supp. 2d 23 (D. Conn. 2005). [N/R]
In a lawsuit concerning the strip-searching of an
adult and seven children during a warrant-based search of an apartment for
drugs, trial judge's reply to jury's question about municipal liability was not
erroneous. Jury's verdict for defendant city upheld on appeal. Quiles v.
Kilson, No. 05-1026, 2005 U.S. App. Lexis 22741 (1st Cir.). [2005 LR Dec]
While there were factual issues as to whether a
homeowner and his children were unlawfully detained and whether protective
sweep of premises by deputies while executing eviction order was unlawful, the deputies
were not liable for private movers' alleged theft of some of the homeowner's
private property while removing it from the premises. There was no evidence
that the deputies either saw the alleged misappropriation or that they
conspired with the movers to accomplish it. Thomas v. Sheahan, No. 04C4865, 370
F. Supp. 2d 704 (N.D. Ill. 2005). [N/R]
Police detective could reasonably have believed
that he had probable cause to arrest a suspected drug dealer and convicted
felon believed to be in possession of weapons, and to use force in doing so,
based on information obtained from confidential informants, and was therefore
entitled to qualified immunity for doing so. Appeals court also upholds
searches of suspect's two apartments, based on telephone confirmation of
issuance of search warrant in one case, and consent of co-occupant on the
other. Burrell v. McIlroy, #02-15114, 2005 U.S. App. Lexis 20060 (9th Cir.).
[2005 LR Nov]
Police detective violated a couple's clearly
established constitutional rights by entering their apartment to execute a
search warrant when he knew that the warrant was ambiguous as to which of two
apartments on the second floor of a building was to be searched. The detective
acted improperly in resolving the ambiguity on his own, rather than seeking
clarification from the magistrate who issued the warrant. Jones v. Wilhelm, No.
04-1261, 2005 U.S. App. Lexis 21386 (7th Cir.). [2005 LR Nov]
Officer who entered a residence without a warrant
to "make sure everything is ok" was entitled to qualified immunity
based on a complaint concerning noise coming from within, the fact that no one
responded to his knock, an unlocked door, and his knowledge of past
disturbances and domestic violence incidents between the resident and her sister,
and numerous other episodes of "eccentric" interaction between the
resident and law enforcement during the past five to six month period. Burr v.
Hasbrouck Heights Police Department, No. 04-1121, 131 Fed. Appx. 799 (3rd Cir.
2005). [N/R]
City's inspection of dance clubs for fire code
violations, building code violations, and under-age drinking were not Fourth
Amendment "searches" when they took place while the clubs were open
to the public for business, and inspectors did not go beyond the areas where
the club's customers could go. 1064 Old River Road, Inc. v. City of Cleveland,
No. 04-3541, 137 Fed. Appx. 760 (6th Cir. 2005). [N/R]
Police officers' entry onto property to allegedly
abate nuisances (such as housing code violations and drug activity) under a
non-criminal administrative search warrant was a violation of the Fourth
Amendment when it was issued by a court that lacked jurisdiction from any
statute or municipal code section to issue it. Individuals who relied on the
warrant, however, were entitled to qualified immunity, when prior case law
concerning the invalidity of such warrants involved only state and not federal
law. Factual issues remained, however, concerning whether the city could be
held liable, under the circumstances, for federal civil rights violations.
Bosteder v. City of Renton, No. 74934-5, 117 P.3d 316 (Wash. en banc. 2005).
[N/R]
Officer did not violate rights of deceased man's
girlfriend when he ordered her to stay outside the dead man's home while
allowing the decedent's widow, who had been separated from him before his
death, to enter and search the house and remove her property. The girlfriend,
as a mere guest of the decedent, had no possessory interest in the house, and
the officer was acting in a reasonable manner to merely keep the peace, rather
than actively collaborating with the wife. Ostensen v. Suffolk County, No.
01-CV-05625, 378 F. Supp. 2d 140 (E.D.N.Y. 2005). [N/R]
Officers who allegedly knocked and announced
their presence "simultaneously" with breaching the door to a
residence to execute a search warrant were not entitled to qualified immunity
in homeowner's lawsuit. Michalik v. Hermann , No. 03-30780, 2005 U.S. App.
Lexis 17529 (5th Cir.). [2005 LR Oct]
Parole agents who allegedly entered a home where
a parolee resided in a rented room, without a warrant and without knocking and
announcing their identity and purpose, were not entitled to qualified immunity.
If the facts were as the plaintiff homeowner and his girlfriend claimed, the
entry in this manner was an invasion of their privacy in violation of the
Fourth Amendment. Green v. Butler, No. 04-2993, 2005 U.S. App. Lexis 18141 (7th
Cir.). [2005 LR Oct]
Seizure of trailers from a field on a man's
property, even if the administrative warrant used to do so was invalid, did not
violate his Fourth Amendment rights when the field was not within the curtilage
of his home and the public could both view and access the area. Under these
circumstances, the plaintiff had no reasonable expectation of privacy. Bleavins
v. Bartels, No. 04-2415, 2005 U.S. App. Lexis 17212 (7th Cir.). [2005 LR Oct]
Police officer who ordered a landlord to open a
door to an apartment so that a woman's ex-boyfriend could retrieve his
possessions was not entitled to qualified immunity on woman's claim that he
violated her Fourth Amendment rights by becoming actively involved in an ex
parte private repossession. Harvey v. Plains Township, No. 04-1148, 2005 U.S.
App. Lexis 18756 (3d Cir.). [2005 LR Oct]
Officers had exigent circumstances to enter a
house without waiting for the occupant, a suspected methamphetamine drug
dealer, to answer, based on various evidence giving them reason to believe that
he was likely to be armed. Officers also did not act unreasonably in returning
the suspect's gunshots, and suspect could not assert a claim for excessive use
of force when he was not struck by the officers' bullets. Cabell v. Rousseau,
No. 04-1258, 130 Fed. Appx. 803 (7th Cir. 2005). [N/R]
Police officer who entered and searched a home
without a warrant and arrested the homeowner for resisting the search was
entitled to qualified immunity when a reasonable officer would have believed
that the entry was justified by a radio dispatch indicating that that another
officer was pursuing a criminal suspect fleeing on foot in the vicinity of the
residence. Payne v. City of Olive Branch, No. 04-60125, 130 Fed. Appx. 656 (5th
Cir. 2005). [N/R]
City health inspectors and police officers did
not need a warrant to enter homeowner's front yard in connection with
complaints concerning sanitary conditions there based on her keeping of up to
nineteen dogs on the premises when the property was not fenced in, and was
viewable by the public, as she had no reasonable expectation of privacy in the
yard under those circumstances. Esmont v. City of New York, No. CV025560, 371
F. Supp. 2d 202 (E.D.N.Y. 2005). [N/R]
Officers were not entitled to summary judgment in
lawsuit for unlawful entry into home when that entry and the seizure of a
resident were not supported by a warrant, consent, or exigent circumstances.
Cummings v. City of Akron, No. 03-3259, 2005 U.S. App. Lexis 14950 (6th Cir.).
[2005 LR Sep]
Officers had exigent circumstances justifying
their warrantless entry into an apartment when they observed an occupant within
through an open doorway jump up from a table and run to the back of the
residence with a clear plastic bag containing a white powder substance. The
officers reasonably believed that the occupant was attempting to destroy
contraband. Harris v. Lee, #04-30027, 127 Fed. Appx. 710 (5th Cir. 2005). [N/R]
City code enforcement officers were not liable
for federal civil rights violations for evicting two elderly residents from
their home without a pre-eviction hearing. The officers had the legal authority
to issue emergency vacate orders, and had grounds to do so in light of the
residents keeping 33 dogs and four birds in the two bedroom house, which was
allegedly in an unsanitary condition. Sell v. City of Columbus, No. 03-4654,
127 Fed. Appx. 754 (6th Cir. 2005). [N/R]
Federal appeals court overturns jury verdict of
over $2 million, finding that exigent circumstances justified police officers'
no-knock entry in home pursuant to search warrant. Doran v. Eckold, No.
03-1810, 409 F.3d 958 (8th Cir. 2005). [2005 LR Aug]
Officers' warrantless entry into home was
justified by exigent circumstances when they were told that a minor might be
consuming alcohol at home, no one responded to their knock on the front door,
and they could observe, through a back window, minors who did not respond to
yelling or knocking on patio door. Officers could, under the circumstances,
reasonably fear for the safety of the minors based on possible alcohol
poisoning. Galindo v. Town of Silver City, No. 03-2134, 127 Fed. Appx. 459
(10th Cir. 2005). [N/R]
Even if there were falsehoods in the anonymous
tip received by a state trooper which was, in part, the basis for the issuance
of a search warrant for the home, the warrant was lawfully obtained and any
falsehoods were moot. The trooper obtained probable cause for the issuance of a
warrant when he observed marijuana plants on the doorsteps of the home and
boards over the windows. Edens v. Kennedy, No. 03-2108, 112 Fed. Appx. 870 (4th
Cir. 2004). [N/R]
Arrestee whose murder conviction was upheld on
appeal was barred from pursuing his federal civil rights lawsuit over the
warrantless search of his apartment and storage locker when he had a "full
and fair" opportunity to litigate the Fourth Amendment issues involved in
those searches in his criminal trial, and it was determined that those searches
were lawful. Simpson v. Rowan, No. 04-1897, 125 Fed. Appx. 720 (7th Cir. 2005).
[N/R]
Police chief should have known that the
warrantless seizure of 70 "derelict" vehicles from salvage yard
property was unlawful and that ordinance providing for such seizures without
pre- or post-deprivations hearings violated due process. His supposed reliance
on the ordinance and consultation with a city attorney did not excuse him from
knowing the applicable law. Lawrence v. Reed, No. 04-8030, 406 F.3d 1224 (10th
Cir. 2005). [2005 LR Jul]
Police officer's alleged pat-down search of
protest organization's office manager during execution of a search warrant was
unreasonable when carried out without any individualized reasonable suspicion
that he was involved in criminal activity or possessed weapons. In light of the
fact that the warrant was not for weapons or contraband, but rather for protest
documents and photographs, it did not justify generalized detention and
pat-down of all those present in the absence of such reasonable suspicion.
Denver Justice Comm. v. City of Golden, No. 03-1470, 405 F.3d 923 (10th Cir.
2005). [2005 LR Jul]
The question of whether police officers were
entitled to qualified immunity on their warrantless entry into home, during
which they gave breath tests to all minors present depended on a disputed
factual issue of whether they were seeking to achieve law enforcement
objectives or else merely to ensure the welfare of the children present.
Accordingly the appeals court could not resolve the issue of qualified immunity
on appeal. Strutz v. Hall, No. 04-1451, 124 Fed. Appx. 939 (6th Cir. 2005).
[N/R]
Officers were not entitled to qualified immunity
on their alleged use of excessive force while executing a search warrant on the
home of a dentist and his wife based on suspicion of growing marijuana, when
there was no belief that the home's occupants were armed or would resist or
flee. Appeals court finds that, if alleged lies by deputy were removed from
affidavit for warrant, there would be nothing left justifying its the issuance.
Baldwin v. Placer County, 2005 U.S. App. Lexis 6626 (9th Cir.). [2005 LR Jun]
Police officers and sheriff's deputy were not
entitled to qualified immunity for allegedly seizing "truckloads" of
personal property while executing search warrant at residence for the sole
purpose of supporting sentencing enhancement in a pending case by proving that
the Hells Angels Motorcycle Club was a gang, or for shooting two dogs at the
residence. San Jose Charter of the Hells Angels Motorcycle Club v. City of San
Jose, No. 02-16329, 402 F.3d 962 (9th Cir. 2005). [2005 LR Jun]
Federal appeals court overturns summary judgment
in favor of town constable in civil rights lawsuit claiming that he broke into
man's apartment unlawfully and left eviction papers on the kitchen floor.
Plaintiff presented sufficient evidence supporting his claim that he was not
home at the time the constable claimed to have personally served him with the
papers to survive a motion for summary judgment. Coon v. Town of Springfield,
No. 02-7518, 2005 U.S. App. Lexis 6160 (2d Cir.). [2005 LR Jun]
Officers were not justified in entering a home
without a search warrant to purportedly search for persons who might be in need
of assistance after they were informed that a number of gunshots had allegedly
come from the home's backyard, since they had no specific facts which would
give a reasonable officer a basis to believe that someone inside had been
wounded. Causey v. City of Bay City, No. 02-CV-10318, 353 F. Supp. 2d 864 (E.D.
Mich. 2005). [N/R]
Subjecting a homeowner, following a search of his
home and his arrest for dealing in harmful materials to a minor and a drug
offense, to a "perp walk" resulting in him being photographed as he
was led from his home to a police vehicle did not violate his Fourth Amendment
rights. The media representatives did not enter the homeowner's property, and
the officers' actions were reasonable, since the residence may have been used
to victimize young women and expose them to sex and drugs. Publication of the
photos of the arrestee's face could help alert other possible victims and encourage
them to provide information to aid the investigation. Gibbons v. Lambert, No.
2:02 CV 01244, 358 F. Supp. 2d 1048 (D. Utah 2005). [N/R]
Officers could not have reasonably believed that
supervising officers were not violating arrestee's civil rights during
execution of no-knock search warrant on home in allegedly conducting invasive
body cavity searches of two women in front of male officers and visual body
cavity searches of three men, or by allegedly physically assaulting persons
present during the search without provocation. Defendants were not, therefore,
entitled to qualified immunity. Officer who allegedly misled the magistrate
into issuing the warrant by omitting material facts was also not entitled to
qualified immunity. Bolden v. Village of Monticello, No. 04 CIV.1372, 344 F.
Supp. 2d 407 (S.D.N.Y. 2004). [N/R]
U.S. Supreme Court: Police officers did not act
unreasonably in detaining an occupant of a home in handcuffs during the
execution of a search warrant, and they also did not violate her rights by
questioning her, during the detention, concerning her immigration status.
Muehler v. Mena, #03-1423, 125 S. Ct. 1465 (2005). [2005 LR May]
Officers did not act unreasonably by entering an
apartment without knocking, searching the premises, and attempting to awaken a
naked man found on a bed inside when there were signs of what appeared to be a
possible burglary, including a broken window. Leaf v. Shelnutt, No. 04-1318,
400 F.3d 1070 (7th Cir. 2005). [2005 LR May]
Search warrant used to search warehouse for
machine guns was defective in failing to specify items to be searched for and
seized, so federal agents were not entitled to qualified immunity on civil
rights lawsuit by operator of warehouse and owner of stored firearms. Warrant's
reference to sealed affidavit in court file which contained those details and
did not accompany warrant during search was insufficient to correct defect.
Federal appeals court allows civil rights lawsuit to go forward despite upheld
criminal conviction of importer of machine guns. Baranski v. Unknown ATF
Agents, No. 03-5582, 401 F.3d 419 (6th Cir. 2005). [2005 LR May]
Incidental damage to a house resulting from
deputies' entry to execute a search warrant, and accidental injuries suffered
by a resident at the moment of entry were not violations of the Fourth
Amendment. Appeals court also rules that the alleged actions of the deputies in
detaining the residents in a living room for a period of time between two and
three hours was not unreasonable, nor did it become unreasonable because the
deputies allegedly, at some point during that time period, refused to allow
access to the bathroom and/or denied one resident's request to take medicine.
Steele v. County of Los Angeles, No. 01-57183, 117 Fed. Appx. 507 (9th Cir.
2004). [N/R]
Police could reasonably believe that they had
exigent circumstances sufficient to support a warrantless entry into a home
based on their knowledge that there were minors drinking liquor in a home and
their observation, through a window, that an individual inside was not
responding to a bright light shined onto his face, a ringing phone, or knocking
on the door and window. Court also finds that a deck attached to the home was
not part of the home's curtilage, so that the officers' warrantless entry onto
it did not violate the homeowners' rights. Further, even if it did, the
officers were still entitled to qualified immunity, as their entry onto the
deck did not violate clearly established law. Hardesty v. Hamburg Township, No.
CIV.03-72054, 352 F. Supp. 2d 823 (E.D. Mich. 2005). [N/R]
State environmental agents did not violate a
property owner's Fourth Amendment rights by entering his land without
permission or a warrant to try to perform a regulatory inspection, in response
to his own application for a permit to carry out construction on state
regulated tidal wetlands. Palmieri v. Lynch, No. 03-9038, 392 F.3d 73(2d Cir.
2004). [2005 LR Apr]
Federal food safety inspectors from the USDA were
not subject to federal civil rights lawsuits in connection with their actions
concerning a meat packing company's facilities. Nebraska Beef v. Greening, No.
04-1918, 2005 U.S. App. Lexis 3368 (8th Cir.). [2005 LR Apr]
While the officers' alleged conduct in staying in
a home searched under a warrant for 7-1/4 hours, while keeping all residents in
handcuffs for several hours in their underwear appeared to be unreasonable
under a prior appeals court decision, Leveto v. Lapina, 258 F.3d 165 (3rd Cir.
2000), the search in question took place over two years before the Leveto
decision, so that the officers did not violate clearly established law and were
entitled to qualified immunity. Kerusenko v. New Jersey, #03-3556, 115 Fed.
Appx. 583 (3rd Cir. 2004). Editor's Note: In Leveto, the court ruled
that an 8-hour search carried out as part of an investigation for tax evasion
where the plaintiff was detained at his place of business, restricted in his
communication with others during the search, and interrogated during a period
of six hours, was unreasonable and amounted to a violation of Fourth Amendment
rights. [N/R]
Officers had sufficient exigent circumstances to
justify a warrantless entry into an apartment based on neighbors' reports of
hearing a woman's scream and "sounds of a struggle." Foutz v. The
City of West Valley City, No. 2:03 CV 1116, 345 F. Supp. 2d 1272 (D. Utah
2004). [N/R]
Officers who entered a home without a warrant and
then shot a suspect inside as he descended from a hiding place holding a
machete had exigent circumstances justifying their actions. The suspect had
allegedly already assaulted several people with the machete and had threatened
to chop up his cousin's small dog. Additionally, he fled from officers to his
house, and refused to obey orders to drop the machete. Cuffy v. Van Horn, No.
03-3517, 112 Fed. Appx. 438 (6th Cir. 2004). [N/R]
Deputy sheriff's failure to include 13-month-old
and 17-month-old reports of prior investigations in affidavit for search
warrant for farm on probable cause of animal mistreatment did not show
intentional or reckless misleading of the magistrate. The old reports, on which
no charges had been issued, were "stale" and not altogether
exculpatory. Further, the old reports did not negate a finding of current
probable cause based on the sworn statements of five separate complainants, and
the deputy's own investigation. Officers who executed the warrant were entitled
to qualified immunity on seizing farmer's daughter after she attempted to lock
herself in the farmhouse bathroom, since they had a security reason--the
presence of weapons--for gathering all occupants outside the house as soon as
possible. The house would not be secure until she was removed. Spafford v.
Romanowsky, No. 02 Civ. 6348, 348 F. Supp. 2d 40 (S.D.N.Y. 2004). [N/R]
Police officers who searched home of suspects
pursuant to search warrant after purchasing VHS videotapes and Nintendo games
suspected to be stolen from them in an on-line auction did not violate the
Fourth Amendment. Seizure of DVDs, non-Nintendo videogames, and other related
materials not specified in the warrant was proper under the plain view
doctrine. Russell v. Harms, No. 04-2065 2005 U.S. App. Lexis 1636 (7th Cir.
February 02, 2005). [2005 LR Mar]
EPA inspectors who, exceeding the scope of
consent given, took wastewater samples from manhole located on privately owned
road near manufacturing mill did not violate the rights of the business. There
was no reasonable expectation of privacy in such wastewater when it was flowing
towards the public sewer system in a manner making it similar to abandoned
trash put out for collection. Riverdale Mills Corp. v. Pimpare, No. 04-1626,
392 F.3d 55 (1st Cir. 2004). [2005 LR Mar]
Genuine issues of material fact as to whether man
fleeing into house following confrontation with officers appeared to make a
threatening gesture precluded summary judgment for officers in lawsuit claiming
that they made an unlawful warrantless entry into the house. If the officers
could reasonably believe that he made a "gun gesture" with his hand
and reached toward his waistband, and that this was a threat to the officers
and the crowd there in general, they could justify the warrantless entry on the
basis of "hot pursuit." Webster v. City of New York, No. 03 CIV.
0524, 333 F. Supp. 2d 184 (S.D.N.Y. 2004). [N/R]
Building inspector was not entitled to qualified
immunity for his nonconsensual warrantless entry into business premises not
open to the public after business hours, or on claims that he did so in retaliation
for the business owners' association with a member of the Village council in
violation of their First Amendment rights. Mimics, Inc. v. Village of Angel
Fire, No. 03-2214, 2005 U.S. App. Lexis 15 (10th Cir. 2005). [2005 LR Feb]
Officer who swore out affidavit for search
warrant for apartment was entitled to qualified immunity when woman's
statements that she had observed illegal prescription drug sales there were
included. The mere fact that she was intoxicated, and had been involved in a domestic
dispute with the resident did not alter the result. Hale v. Kart, No. 03-1793,
2005 U.S. App. Lexis 599 (6th Cir. 2005). [2005 LR Feb]
Prosecutors who approved allegedly facially
invalid post-indictment search warrant of indictee's property were not entitled
to absolute immunity from liability to the extent that the warrant sought to
obtain evidence of crimes not charged in the indictment, but were entitled to
qualified immunity to the extent the warrant was aimed at obtaining evidence to
prosecute the pending charges. District attorney was entitled to qualified
immunity, however, on approval of allegedly overbroad search warrant, because
it was not so lacking in indications of probable cause as to make a belief in
probable cause unreasonable. KRL v. Moore, No. 02-15296, 384 F.3d 1106 (9th
Cir. 2004). [N/R]
Oklahoma state law enforcement officers and state
could not be held liable for search of business under warrant seeking evidence
of drug trafficking. Probable cause for the warrant existed when search warrant
affidavit stated that law enforcement agent personally purchased a product
containing a controlled substance at the business premises. Employee of
business who was allegedly misidentified as the business owner in statements to
the press by a law enforcement agent could not recover damages for defamation
when the statement was made on the basis of state tax records and any
misrepresentation was unintentional. Tanique, Inc. v. Oklahoma Bureau of
Narcotics, No. 99,091, 99 P.3d 1209 (Okla. Civ. App. Div. 2 2004). [N/R]
Search warrant issued on the basis of an
affidavit which did not establish a link between criminal activity and the
residence to be searched or even that the address was the residence of the
suspect was so lacking in probable cause as to make reliance on it objectively
unreasonable. Mills v. City of Barbourville, No. 02-6404, 2004 U.S. App. Lexis
23753 (6th Cir. 2004). [2005 LR Jan]
Prior dismissal of a lawsuit under the Federal
Tort Claims Act for the alleged intentional destruction of computer equipment
and data seized during the execution of a search warrant did not bar a
subsequent civil rights lawsuit against the federal agents involved in the
search. Hallock v. Bonner, No. 03-6221, 387 F.3d 147 (2nd Cir. 2004). [2005
LR Jan]
Officers were entitled to qualified immunity on
claims that they unlawfully seized residents of apartment downstairs from
residence of suspect when they surrounded and entered the common areas of a
duplex building looking for the suspect. Defendants allegedly pointed their
weapons at downstairs residents when they did not obey commands to go back
inside or stay in their apartment. It is well established, federal trial court
notes, that it is reasonable for an officer to temporarily display force or
restrain a person "until that person's relationship to the suspect and
possible reaction to the situation can be ascertained." In this case, the
officers were attempting to locate and arrest a potentially armed suspect
believed to be in the same building as the plaintiffs, so that their conduct
did not rise to the level of a Fourth Amendment violation. Reeves v. Churchich,
No. 2:02 CV 0551 DAK, 331 F. Supp. 2d 1347 (D. Utah 2004). [N/R]
Homeowner could pursue her federal civil rights
claim that officers unlawfully entered her home to attempt to execute an arrest
warrant for a non-resident suspected of being present there. Federal appeals
court finds that there were genuine issues of fact as to whether the officers
deliberately entered the home without consent, a search warrant, or exigent
circumstances, in violation of the Fourth Amendment. Genuine issues also found
concerning whether officers were or were not trained to attempt to get consent
before entering into third-party residences to carry out arrests pursuant to
arrest warrants. Maddux v. Officer One, No. 01-20881, 90 Fed. Appx. 754 (5th
Cir. 2004). [N/R]
Business owner failed to show that officers
alleged violation of his reasonable expectation of privacy in making a
warrantless entry into garage on the premises in search of an allegedly stolen
vehicle was based on the police department's policy or custom, so that the
municipality could not be held liable. Binder v. Redforce Township Police
Department, No. 02-2184, 93 Fed. Appx. 701 (6th Cir. 2004). [N/R]
Officer was entitled to qualified immunity for
his search of a mobile home he was sent to secure when he had been told that
minor found dead there may have been a victim of sexual abuse and also that a
search warrant for the premises had been signed. Myers v. Medical Center of
Delaware, Inc., No. 03-2373, 105 Fed. Appx. 404 (3rd Cir. 2004). [N/R]
Manager of medical office had a right to deny
entry to probation officer and police officer at a time when the office was
closed to the public. Arrest warrant they had for probationer who occasionally
did odd jobs for office did not authorize entry for a search, in the absence of
a search warrant for the office or exigent circumstances. Probation officer was
not entitled to qualified immunity for entry. O'Rourke v. Hayes, No. 03-10795,
378 F.3d 1201 (11th Cir. 2004). [2004 LR Dec]
Federal appeals court overturns summary judgment
for city and county in lawsuit by homeless persons claiming that they have an
unconstitutional policy or custom of seizing and destroying their property
without proper notice and hearing. Cash v. Hamilton County Dept. of Adult
Prob., No. 03-3916 2004 U.S. App. Lexis 23756 (6th Cir. 2004). [2004
LR Dec]
Property owner could not pursue unlawful search
and seizure claim against sheriff on the basis of his entry into his pasture,
since he had no reasonable expectation of privacy in the pasture where he kept
his cattle. Schroeder v. Kochanowski, No. 03-4108-JAR, 311 F. Supp. 2d 1241 (D.
Kan. 2004). [N/R]
Jury in federal civil rights lawsuit by Arabic
owners of New York delicatessens could properly find, from the evidence
presented, that a special task force did not single their business out for
enforcement efforts on the basis of their national origin. The enforcement
efforts concerned outdated food, trash buildup, loitering, overpricing of
goods, and improper sales of drug paraphernalia and single cigarettes. The list
of delis to be targeted by the task force was based on those with the greatest
number of complaints. On an unlawful search and seizure claim, the jury could
find, from the evidence, that the business owners consented to the search of
the premises. While the jury verdict came three days after the September 11,
2001 terrorist attack on the World Trade Center attributed to persons of Arabic
ethnicity, the plaintiffs were not entitled to a new trial on the basis of
possible bias by the jury, when they failed to seek either a delay of the trial
or a mistrial after the attacks occurred. Saleh v. City of Buffalo, #01-9298,
80 Fed. Appx. 119 (2nd Cir. 2003). [N/R]
Officers who allegedly compelled warrantless
entry into a woman's home by threatening to arrest her and put her baby in
foster care were not entitled to qualified immunity. Warrantless entry was not
justified by the fact that a parolee, the subject of the search, had previously
lived there, when he was in jail at the time, and the search was based on
"stale" information. Additionally, no reasonable officer could have
believed that pointing a gun at the five week-old baby during a search of his
room was reasonable under the circumstances. Motley v. Parks, No. 02-56648 2004
U.S. App. Lexis 19581 (9th Cir.). [2004 LR Nov]
Search warrant for a residence which authorized a
search of "all persons" present for drugs was not adequately
supported by detailed information to support probable cause to believe that all
occupants of the premises were involved in criminal activity. Officers who
carried out the search pursuant to the warrant, and who strip-searched or
pat-searched four adults and two minors in the home, were entitled to qualified
immunity because the law on the issue was not clearly established at the time
of the search. Owens Ex Rel. Owens v. Lott, No. 03-1194, 372 F.3d 267 (4th Cir.
2004). [2004 LR Nov]
The factual question of whether officers
reasonably believed that their warrantless entry into a home was necessary for
the safety of the residents in light of the behavior of a man with "mental
problems" inside was for the jury to decide, so that a trial court
properly denied the plaintiffs summary judgment on their federal civil rights
lawsuit against the officers. The officers contended that their warrantless
entry was justified by the man's extreme agitation at the door to the
residence, his statement that he would "like to kill" the police, and
the presence of his elderly parents inside, as well as their apparent inability
to calm their son down. Deloreto v. Karengekis, No. 03-7709, 104 Fed. Appx. 765
(2nd Cir. 2004). [N/R]
In a lawsuit claiming that federal agents had
violated the Fourth Amendment in the course of retrieving documents from a
medical office responsive to a subpoena in a regulatory enforcement action, the
agents' supervisors could not be held liable for damages when they had no
personal involvement in the incidents in question. Van Eck v. Cimahosky, 329 F.
Supp. 2d 265 (D. Conn. 2004). [N/R]
Officers who had reason to believe that juveniles
were drinking alcohol at a party inside a home could have believed that they
had exigent circumstances sufficient to justify a warrantless entry into the
residence, based on the threat to public safety if the juveniles subsequently
left the home in cars under the influence of alcohol. They were therefore
entitled to qualified immunity. Radloff v. Oelwein, No. 03-3493, 2004 U.S. App.
Lexis 17016 (8th Cir. 2004). [2004 LR Oct]
Parole officers had no right to make a
warrantless search of a woman's house to look for a parole violator who did not
actually live there. Because they reasonably believed, however, on the basis of
mistaken information furnished to them, that the house was the parolee's
residence, they were entitled to qualified immunity from liability, since they
had the right to search a parolee's home without probable cause or a warrant,
and they left as soon as they determined that this was not the parolee's home.
Moore v. Vega, #02-9209, 371 F.3d 110 (2nd Cir. 2004). [2004 LR Oct]
Dancers at sexually-oriented dance club had a
reasonable expectation of privacy in their dressing room, so that officers who
came to the club to see if it was complying with a city ordinance regulating
such businesses violated the Fourth Amendment by making a warrantless search of
the dressing room. Federal court also rejects argument that the warrantless
search of the dressing room was a valid warrantless "administrative
search." The police officers who conducted the search were also not
entitled to qualified immunity because there was clearly established law that
officers may not, without a warrant, enter any area in which there is a
reasonable expectation of privacy, in the absence of a specific exception to
that principle. Bevan v. Smartt, 316 F. Supp. 2d 1153 (D. Utah. 2004). [N/R]
Search warrant for a journalist's home, obtained
in order to find videos and three still photographs concerning the terrorist
bombing nine years earlier of the Oklahoma City Federal Building, was overbroad
in violation of the Fourth Amendment, since it authorized the seizure of
"virtually every" piece of computer equipment, every computer file or
document, and other things in the home which could not contain the photographs
or videos sought, including letters. Additionally, the warrant was not
supported by probable cause because the information on which it was based was
"stale," consisting of statements by a third party who told law
enforcement officers that he had seen the photos and video six years before,
and at a location other than the journalist's home. The journalist was not
accused of any crime and had stated, before the warrant issued, that the
material in question had been turned over by him to Congress. Journalist was
entitled to summary judgment on his Fourth Amendment claim that the officers
lacked probable cause to search his home, and the officers who obtained the
warrant were not entitled to qualified immunity. Arkansas Chronicle v. Easley,
321 F. Supp. 2d 776 (E.D. Va. 2004). [N/R]
Officers who allegedly failed to immediately
terminate their search of a residence when they learned that they were in the
wrong house were not entitled to qualified immunity from liability. Simmons v.
City of Paris, Texas, No. 03-41291, 2004 U.S. App. Lexis 14946 (5th Cir.).
[2004 LR Sep]
County was entitled to summary judgment in
lawsuit by elderly woman claiming that members of multi-agency task force
improperly entered and searched her home looking for suspect who no longer
lived there, when no county policy or custom caused the actions. Individual
deputies involved in obtaining the address to go to or who accompanied team
members on the search, were entitled to qualified immunity, as their actions
did not violate plaintiff's rights. Johnson v. Deep East Texas Regional
Narcotics Trafficking Task Force, No. 03-40394, 2004 U.S. App. Lexis 15493 (5th
Cir.). [2004 LR Sep]
Students whose homes were searched and who were
arrested for allegedly plotting an armed attack on their school failed to show
that information allegedly intentionally omitted from affidavit in support of
search warrant, had it been included, would have negated the existence of
probable cause for the searches. The information which was allegedly omitted
was not material. Additionally, the fact that an informant whose statements
were relied on had prior juvenile convictions and had used drugs while with the
five high school students who allegedly plotted the armed attack did not render
the information he provided unreliable. Smith v. Barber, 316 F. Supp. 2d 992
(D. Kan. 2004). [N/R]
Arab-American man who became involved in domestic
dispute with his ex-wife did not show that officers violated his rights by
accompanying her into the home to retrieve her belongings or that they engaged
in gender or national origin discrimination in failing to pursue an
investigation into her conduct when he claimed that she had "broken
in" and stolen his property. Officers reasonably believed that ex-wife had
the right to consent to their entry into the home and there was no showing that
the man was treated any differently than similarly situated women or
non-Arab-Americans. Harajli v. Huron Tp., 02-2169, 365 F.3d 501 (6th Cir.
2004). [2004 LR Aug]
Former special agent in charge of DEA office who
made an allegedly false statement to a federal investigator which was
incorporated into an affidavit for a search warrant for the home and office of
one of his former subordinate agents could not be held liable for a Fourth
Amendment violation on that basis. There is no protection under the Fourth
Amendment, the court rules, against a person lying about his personal memories
of the past to investigators who subsequently use it as the basis of a search
and seizure. The defendant lacked personal involvement in the investigation and
search. Mueller v. Gallina, 311 F. Supp. 2d 606 (E.D. Mich. 2004). [N/R]
Business owner who obtained suppression of
evidence in federal criminal proceeding on the basis of alleged omissions of
material facts from affidavit for search warrant was not entitled, in
subsequent civil rights lawsuit in state court, to judicial notice of factual
findings made in federal judge's order, or to collateral estoppel as to their
truth, since the defendants in the subsequent lawsuit were not parties to the
federal proceeding, and therefore had no opportunity to dispute those facts. Kilroy
v. State of California, No. C044877, 2004 Cal. App. Lexis 839 (Cal. 3d App.
Dist 2004). [2004 LR Jul]
Police officers who allegedly continued to
search apartment even after they had verified that the parties sought were not
there were not entitled to qualified immunity, as their claimed actions, if
true, would violate the Fourth Amendment. Peterson v. Jensen, No. 02-4243, 2004
U.S. App. Lexis 11242 (10th Cir.). [2004 LR Jul]
U.S. Supreme Court grants review on case
involving the scope of permissible detention and questioning of persons, not
suspected of crime, found inside a residence during the execution of a search
warrant. Mena v. Simi Valley, Calif., 332 F.3d 1255 (9th Cir. 2003), cert.
granted, Muehler v. Mena, No. 03-1423, 2004 U.S. Lexis 4190 (June 14, 2004).
[2004 LR Jul]
Fourth Amendment does not required that police
officers have any reasonable suspicion of criminal activity before knocking on
a residence door to conduct an inquiry, so that use of "knock and
talk" procedure, which resulted in the obtaining of incriminating
evidence, did not violate arrestee's rights. People v. Jenkins, #G032626, 2004
Cal. App. Lexis 887 (Cal. 4th App. Dist.. 2004). [N/R]
Officers' warrantless search of home was
legitimate on the basis of permission to enter given to them by persons in the
home. It was also justified by exigent circumstances because they observed a
potentially dangerous fugitive approach the residence in a "furtive
manner," and then enter. Couden v. Duffey, 305 F. Supp. 2d 379 (D. Del.
2004). [N/R]
Officers were not entitled to qualified immunity for
going beyond the scope of a search warrant by searching a mother and her
ten-year-old daughter while executing a warrant for narcotics at their home.
Doe v. Groody, #02-4532, 361 F.3d 232 (3d Cir. 2004). [2004 LR Jun]
"Consent" to enter a home, procured by
an officer's false statement that police had a warrant, did not constitute
"consent" at all. Arrest of suspect inside home without consent or a
warrant following such an entry would be improper. Hadley v. Williams,
#03-1530, 2004 U.S. App. Lexis 9446 (7th Cir.). [2004 LR Jun]
Search and Seizure: Person
Officers were not entitled to qualified immunity
for going beyond the scope of a search warrant by searching a mother and her
ten-year-old daughter while executing a warrant for narcotics at their home.
Doe v. Groody, #02-4532, 361 F.3d 232 (3d Cir. 2004). [2004 LR Jun]
Police officers were justified in making a
warrantless entry into a home when they believed that there could be a woman
inside who was "in trouble," and when two occupants of home, although
they knew that a uniformed officer outside was seeking to speak with them,
decided not to answer the door. Officers acted for the purpose of protecting
the woman they believed was inside. Martin v. City of Oceanside, No. 02-56177,
360 F.3d 1078 (9th Cir. 2004). [2004 LR May]
No exigent circumstances existed sufficient to
justify no-knock "dynamic entry" into home. Federal appeals court
upholds $2 million jury verdict against officer on unlawful entry claim, as
well as against sergeant and Board of Police Commissions on inadequate training
claims. Doran v. Eckold, No. 03-1810, 2004 U.S. App. Lexis 6479 (8th Cir.
2004). [2004 LR May]
U.S. Supreme Court finds that a search warrant
which failed to describe the items to be seized during the search of a Montana
ranch was "presumptively invalid," and that a federal agent who
applied for the warrant and then led the raid executing it was not entitled to
qualified immunity from liability, as the requirement in the Fourth Amendment
that a warrant describe with particularity the "persons or things to be
seized" is clearly stated. Groh v. Ramirez, #02-811, 124 S. Ct. 1284
(2004). [2004 LR May]
Police officers did not act in an unreasonable
manner by continuing to search apartment after they allegedly realized that the
apartment's inclusion in the search warrant might have been in error and that
the suspect who was the target of the search possibly did not live there.
Officers could reasonably believe that the warrant still gave them authority to
conduct the search, since it was issued based on a belief that the targeted
suspect controlled the apartment. Duarte v. Robards, No. 02-56563, 86 Fed.
Appx. 270 (9th Cir. 2003). [N/R]
Factual issues concerning whether officer's
search of man's residence, yard, and barn in an effort to locate a woman
purportedly involved in a domestic dispute with him was justified by exigent
circumstances or the plaintiff's consent barred summary judgment on the basis
of qualified immunity in the man's civil rights lawsuit. Colao v. Mills, 770
N.Y.S.2d 474 (A.D. 3d Dept. 2004). [N/R]
Motorcycle club whose documents and records were
lawfully seized by state law enforcement from their clubhouse had no reasonable
expectation of privacy in those materials following the seizure, federal
appeals court rules, upholding dismissal of civil rights claim against federal
agent to whom those materials were subsequently turned over pursuant to an administrative
subpoena. Motorcycle club, therefore, had no constitutional right to notice and
an opportunity to contest the subpoena. Hell's Angels Motorcycle Corporation,
No. 02-15215, 354 F.3d 1000 (9th Cir. 2004). [N/R]
Strip searches of patrons during execution of
search warrant for drug transactions at nightclub were unlawful when carried
out without individualized reasonable suspicion of possession of drugs or
probable cause, and sheriff was not entitled to qualified immunity for
conducting the searches. Federal appeals court upholds award of $100 in nominal
damages and $15,000 in punitive damages for each plaintiff. Williams v. Kaufman
County, No. 02-10500, 352 F.3d 994 (5th Cir. 2003). [2004 LR Mar]
Homeowner failed to prove her claims that officers
executing a search warrant at her residence caused unreasonable property damage
or planted evidence of drugs there. Heft v. Moore, No. 02-4110, 351 F. 3d 278
(7th Cir. 2003). [2004 LR Mar]
FBI agent was not required to obtain a search
warrant for a residence in addition to an arrest warrant for a suspect
reasonably believed to be an occupant in order to enter a dwelling. Tyson v.
Willauer, 289 F. Supp. 2d 190 (D. Conn. 2003). [N/R]
Even if officers did forcibly enter a home
without a warrant, this was not a Fourth Amendment violation when the entry was
explicitly authorized by the conservator of the homeowner's estate after the
homeowner was found incompetent and removed by a state agency. Officers, in
entering and responding to resident daughter's objection to the removal of her
father's property and documents, also did not act in a manner justifying an
award of damages for emotional distress under Connecticut state law. Ehrlich v.
Town of Glastonbury, No. 02-7839, 348 F.3d 48 (2nd Cir. 2003). [2004 LR Feb]
Officers acted unlawfully in seizing a man at a
gas station when they were on the way to executing a search warrant at his
residence and transporting him to the site of the search, without probable
cause to arrest him. Arrestee awarded $4,000 in actual damages and punitive
damages of $20,000 by jury. Pappas v. New Haven Police Department, 278 F. Supp.
2d 296 (D. Conn. 2003). [2004 LR Feb]
Municipal building inspector was not entitled to
qualified immunity in lawsuit objecting to his numerous warrantless entries in
lessees' offices when there was evidence that his actions were motivated by an
intent to harass or unfairly target them because of their political association
with the mayor. Mimics, Inc. v. The Village of Angel Fire, 277 F. Supp. 2d 1131
(D.N.M. 2003). [N/R]
Police officers were entitled to summary judgment
on unlawful search claims when they entered an apartment while executing a
valid search warrant. Confidential informant's error in mistakenly identifying
plaintiff's apartment number rather than the correct apartment number next door
did not alter the result. Hellmann v. Gugliotti, 279 F. Supp. 2d 150 (D. Conn.
2003). [N/R]
Nightclub patrons strip-searched and detained for
three hours because they were present during execution of search warrant on
premises for evidence of crack cocaine transactions were properly awarded $100
in actual damages and $15,000 in punitive damages each. Sheriff was not
entitled to qualified immunity for conducting searches without particularized
reasonable suspicion or probable cause. Williams v. Kaufman County, No.
02-10500, 343 F.3d 689 (5th Cir. 2003). [2004 LR Jan]
Homeowner did not have any reasonable
expectation of privacy in a basement apartment he rented out to tenants, who
allegedly grew marijuana there. Shamaeizadeh v. Cunigan, No. 01-6326, 338 F.3d
535 (6th Cir. 2003). [2004 LR Jan]
Warrants for the search of a residence were not
supported by probable cause when the affidavit provided no basis to support the
belief that evidence of crime would be found there and broadly sought
"every conceivable kind of document" relating to the residents'
personal and business financial activities. Affidavit submitted was used to
obtain warrants for a total of 16 locations, with only the particular location
or person to be searched altered in the last section. Officers were not
entitled to qualified immunity for conducting search, as no reasonable officer
would have believed that the affidavit provided probable cause. Officers who were
not involved in the search, however, but were present, were entitled to
qualified immunity in detaining a resident during the execution of the warrant,
since they could have reasonably believed that their actions were lawful.
Williams v. County of Santa Barbara, 272 F. Supp. 2d 995 (C.D.Cal. 2003). [N/R]
Seizure of old truck from residential property
without a warrant or any exigent circumstances under the authority of an
abandoned property ordinance, if true, would violate landowner's clearly established
Fourth Amendment rights, so defendant city officials were not entitled to
qualified immunity. Gould v. Symons, 275 F. Supp. 2d 843 (E.D. Mich. 2003).
[N/R]
Officers did not violate the Fourth Amendment
rights of a woman with Down Syndrome or subject her to disability
discrimination by making a warrantless entry into her apartment in response to
her 911 call, seizing her, and involuntarily taking her to be hospitalized in a
psychiatric unit. Anthony v. City of New York, #01-7987(L), 339 F.3d 129 (2nd
Cir. 2003). [2003 LR Nov]
Warrantless arrest of resident during execution
of valid search warrant for her home did not violate her rights, based on
evidence found, which officers believed, at the time, was crack cocaine.
Officers earlier violated federal criminal statute by pretending to be census
workers, but such conduct cannot be the basis for a federal civil rights claim.
Frison v. Zebro, No. 02-2226, 339 F.3d 994 (8th Cir. 2003). [2003 LR Nov]
Police officers had exigent circumstances justifying
a warrantless entry into the home of a 911 caller and her fiance when the
dispatcher labeled the call as involving a "cutting or stabbing," and
the fiance answered the door with blood on his legs and boxer shorts, and the
caller was not then visible. Alleged handcuffing of caller for one minute while
officers inspected her bruises was not proven, and plaintiff could not identify
which officer purportedly did so. Probable cause existed for arrest of fiance
for domestic violence based on bruises on woman caller. Thacker v. City of
Columbus, No. 01-4097, 328 F.3d 244 (6th Cir. 2003). [2003 LR Oct]
Police officers could reasonably have believed
that their search of a residence was proper based on a co-tenant supplying them
with a key to the premises as well as signing a consent form, even if she did
not accompany them to the home. The officers were therefore entitled to
qualified immunity from claims for unreasonable search and seizure asserted by
the other tenant, who they subsequently arrested. Crim v. King, No. 01-57106,
65 Fed. Appx. 591 (9th Cir. 2003). [N/R]
Owner of food distribution business failed to
present allegations sufficient to establish a claim that an allegedly unlawful
warrantless search of the business was caused by a police department policy or
custom, as required for municipal liability, when the complaint failed to point
to anything other than the search at issue. Chin v. City of Baltimore, 241 F.
Supp. 2d 546 (D. Md. 2003). [N/R]
Washington state homeowner was not entitled,
under state constitutional provisions concerning the taking of property and
eminent domain, to compensation for alleged damage to her residence as a result
of the execution of a search warrant there by police. Eggleston v. Pierce
County, No. 71296-4, 64 P.3d 618 (Wash. 2003). [N/R]
Two police officers were each properly assessed
$10,000 in compensatory and $20,000 in punitive damages, appeals court rules,
for unreasonable and "unnecessarily degrading" and prolonged
detention of female resident of home who was not a subject of their
investigation during the execution of a search warrant. Plaintiff was allegedly
kept in handcuffs for several hours, marched barefoot through the rain, and
unnecessarily questioned about her citizenship status. Mena v. City of Simi
Valley, #01-56673, 332 F.3d 1255 (9th Cir. 2003). [2003 LR Sep]
While the "knock and announce" rule is
clearly established law, a violation of which, without cause, could support a
federal civil rights claim, in this instance the officers had exigent
circumstances justifying their unannounced entry into the home to serve the
search warrant. At the time of the search, there were three armed suspects
"on the loose," with a "good chance" that they were hiding
in the house being entered. Battiste v. Rojeski, 257 F. Supp. 2d 957 (E.D.
Mich. 2003). [N/R]
In case where elderly couple challenged the
validity of search warrant for their home, defendants could be required to
either produce a confidential informant for an "in chambers" deposition,
to reveal his identity, or to convince the court that, for reasons of safety,
his identity need not be revealed. In the alternative, the defendants could be
barred from presenting any evidence at trial based on the alleged existence of
the informant. Smith v. City of Detroit, No. 01-70740, 212 F.R.D. 507 (E.D.
Mich. 2003). [2003 LR Aug]
Search warrant for search of home was valid, even
if it did not have the magistrate's signature on it. The Fourth Amendment also
did not require that the warrant name the person from whom the things sought
would be seized, when it did name the place to be searched and what was being
searched for. Sadlowski v. Benoit, No. 02-1365, 62 Fed. Appx. 3 (1st Cir.
2003). [N/R]
Federal agents did not violate the Fourth Amendment
by conducting a search of a warehouse for machineguns under a warrant in which
the description of the guns to be found and seized was contained in an
affidavit which the court had ordered sealed. Agents left the warehouse owner a
copy of the warrant, but not the affidavit, but did furnish a list of the guns
seized, and the guns seized did not go beyond the scope of the description in
the affidavit. Additionally, even if this action were found to violate the
Fourth Amendment, the agents were entitled to qualified immunity under the
circumstances because they could reasonably believe that the warrant, issued by
the magistrate who ordered the affidavit sealed, was valid. Baranski v. Fifteen
Unknown Agents of ATF, No. 3:01CV-398-H, 252 F. Supp. 2d 401 (W.D. Ky. 2003).
[N/R]
Fire chief was entitled to qualified immunity
that he issued a citation against the owner of rental properties for refusal to
consent to a warrantless inspection of tenants' apartments. The alleged right
of the owner, under the Fourth Amendment, to refuse to consent to the
warrantless inspection intended to protect the tenants' safety, was not clearly
established, so that a reasonable building or fire code enforcement official
could have believed that the landlord had no right to refuse entry, so that he
could be cited for obstructing access. Grimm v. Sweeney, #01-431, 249 F. Supp.
2d 571 (E.D. Pa. 2003). [N/R]
Officer was not required to express his concern
to a judge issuing a search warrant for the search of a home in a drug activity
investigation when there was no evidence that any doubts he had about the
informant's information were serious. Failure to acknowledge, in affidavit for
the warrant, that the informant had given different numbers regarding the
amount of cocaine he allegedly distributed for the suspect did not eliminate
probable cause for the warrant. Molina Ex Rel. Molina v. Cooper, #02-1995, 325
F.3d 963 (7th Cir. 2003). [2003 LR Jul]
Federal appeals court overturns jury award of
damages to three bystanders detained by police during search of commercial
building by police under search warrant and of damages to building owner for
property damage during search. City could not be liable to bystanders, as there
was no showing that there was a municipal policy or custom of detaining
innocent bystanders to searches for an unreasonably long period of time. Damage
done to building during search, which amounted to less than $500, did not
amount to a "taking" for purposes of the Fifth Amendment, and
building owner had no reasonable expectation that the building would remain
free of legal searches. Two-hour deprivation of access to the building could
not be the basis for a claim for damages either. Jones v. Philadelphia Police
Department, No. 01-4202, 57 Fed. Appx. 939 (3rd Cir. 2003). [N/R]
Sheriff and SWAT team members were not entitled
to qualified immunity for death of man shot and killed in his home after he
resisted being taken into custody for a psychiatric evaluation. If plaintiff's
factual allegations were true, and decedent was in the process of surrendering
when he was shot and killed, use of deadly force against him was clearly
excessive. Warrantless entry into the home when the man had "not
committed" any crimes and there was no immediate need to subdue him was
"reckless" and an excessive use of force. Federman v. County of Kern,
No. 01-16691, 2003 U.S. App. Lexis 7180 (9th Cir.). [2003 LR Jun]
Officers could detain employees of business while
executing a search warrant on the premises to find evidence of alleged
fraudulent practices, but they could not require them to submit to custodial
interrogation as a condition of release. Ganwich v. Knapp, No. 01-35677, 319
F.3d 1115 (9th Cir. 2003). [2003 LR Jun]
Officers could properly enter an apartment in
order to complete an investigatory stop of an individual who fled inside, and
did not use excessive force in stopping his relatives from preventing them from
removing him from the apartment to complete his questioning. Rivera v.
Washington, No. 01-1595, 57 Fed. Appx. 558 (4th Cir. 2003). [2003 LR Jun]
There were genuine issues of fact as to whether a
parent's alleged consent to a police officer and social workers to enter their
home to investigate suspicion of child neglect without a warrant was coerced,
so that officers and social workers were not entitled to summary judgment on
parent's claim that they violated the Fourth Amendment and Ohio state
constitution in entering the premises. Walsh v. Erie County Dept. of Job and
Family Services, 240 F. Supp. 2d 731 (N.D. Ohio 2003). [N/R]
State and federal agents who detained and
handcuffed employees for three and a half hours in 1996 while executing a
search warrant for unlawful drugs on a workplace were entitled to qualified
immunity. Such a search warrant carries with it limited authority to detain the
occupants of the premises while a proper search is conducted, and it was not
shown either that the length of the detention was unreasonable under the
circumstances or that the agents were unreasonable in their belief that they
were not violating clearly established law when they displayed drawn guns, and
pushed one of the employees to the ground when he failed to obey an order to
"get down." Pikel v. Garrett, #01-3850, 55 Fed. Appx. 29 (3rd Cir.
2002). [N/R]
Homeowners who contend that the search warrant
used to enter their home described a distinctly different residence could
pursue their claim for municipal liability. Their allegations that three of the
officers involved in the search had previously been named as defendants in
other civil suits as a result of raiding the wrong house and that they were
then given no additional training, if true, was sufficient to allow an
inference that the city was deliberately indifferent to such incidents. Smith v.
City of Detroit, 238 F. Supp. 2d 896 (E.D. Mich. 2003). [N/R]
Presence of officers during a court-sanctioned
entry into a man's residence by his wife in connection with divorce proceedings
to retrieve some of her possessions did not constitute an illegal search and
seizure in violation of federal and state constitutional provisions. The
plaintiff's federal civil rights claims against the city and officers were
frivolous and the defendants were therefore entitled to an award of attorneys'
fees. Todd v. City of Natchitoches, 238 F. Supp. 2d 793 (W.D. La. 2002). [N/R]
Officers were not entitled to qualified immunity
on a claim that they kept two apartment occupants handcuffed for two hours
while their apartment was being searched under a warrant. The complaint alleged
that they were kept handcuffed long after the officers had reason to believe
that they were not connected with persons sought in connection with a shooting.
Seaman v. Karr, #27935-5-II, 59 P.3d 701 (Wash. App. 2002). [N/R]
Officer was not entitled to qualified immunity on
a claim concerning the arrest of a social visitor to an apartment after a
search warrant had been executed there. The need for probable cause to seize
the visitor was "clearly established." Gregory v. Oliver, 226 F.
Supp. 2d 943 (N.D. Ill. 2002). [N/R]
Trial court properly dismissed arrestee's claims
concerning supposedly false statements in search warrants for her home and
business when the officer preparing the affidavit for the warrants clearly
indicated that the statements in question came from a confidential informant
previously shown to be reliable, and the officer had no reason to believe that
these statements were false. Dahl v. Holley, #01-15089, 312 F.3d 1228 (11th
Cir. 2002). [2003 LR May]
Following execution of search warrant on home,
officers acted properly in obtaining a second search warrant to seize video
camera and answering machine in residence which may have contained evidence of
the evening's events, which subsequently gave rise to a federal civil rights
lawsuit over the execution of the first search warrant. Estate of Smith v.
Marosco, 227 F. Supp. 2d 322 (E.D. Pa. 2002). [N/R]
California officers' initial stop and
investigation of vehicle without license plates was reasonable, but there was a
jury question as to whether they acted improperly in engaging in a prolonged
two hour detention of the driver and her passenger, and whether they improperly
engaged in a warrantless search of the two occupants' home during that time
when all that was consented to may have been an officer accompanying the driver
into the home to retrieve the passenger's California identification card.
Intermediate appeals court reinstates lawsuit by vehicle occupants.. Venegas v.
County of Los Angeles, #B148398, 128 Cal. Rptr. 2d 627 (Cal. App. 2 Dist.
2002). [2003 LR Apr]
Officers' actions in entering a home without a
warrant with their guns drawn was justified by the emergency aid exception to
the Fourth Amendment's warrant requirement, and the officers were therefore
entitled to qualified immunity, when they had been told that a woman might be
in danger and they reasonably believed that she was inside the house. Martin v.
City of Oceanside, 205 F. Supp. 2d 1142 (S.D. Cal. 2002). [N/R]
Arrestee's wife was not falsely imprisoned under
Kansas state law or for purposes of a federal civil rights claim when officers
prevented her, for two hours, from reentering her house without an escort while
they waited to obtain a search warrant for the home following a valid arrest of
her husband for firing a revolver in an alleged aggravated assault. Price v.
Cochran, 205 F. Supp. 2d 1241 (D. Kan. 2002). [N/R]
State social worker violated Fourth Amendment
rights in conducting a visual body cavity search of a female minor based on
accusations of sexual abuse without demonstrating probable cause and obtaining
a court order, getting parental consent, or showing emergency circumstances,
but she was entitled to qualified immunity because the violation was not
clearly established in July of 1999. Mother of child did consent to
investigative home visit and therefore had no individual claim for Fourth
Amendment violations. Roe v. Texas Department of Protective and Regulatory
Services, #01-50711, 299 F.3d 395 (5th Cir. 2002). [N/R]
City ordinances regulating pawn shops, under
which officers made seizures of jewelry from plaintiff's shop on several
different occasions, did not violate his Fourth Amendment or due process
rights. The ordinances require either a warrant or consent from the store owner
for the seizure of property and provide a mechanism under which a pawn broker
may obtain a hearing regarding the seized property. Plaintiff consented to two
of the seizures, and a third seizure took place under a valid warrant. Larson
v. City of Denver, #01-1301, 41 Fed. Appx. 355 (10th Cir. 2002). [N/R]
Exigent circumstances justifying an officer's
warrantless entry into a home were present when she was informed by a second
officer, who she believed to be truthful and reliable, that an armed suspect
had run inside, but appeals court orders further proceedings on whether officer
was entitled to qualified immunity on her purported failure to comply with the
Fourth Amendment's "knock and announce" requirement before entering.
Smith v. Stone, #00-4574, 40 Fed. Appx. 197 (6th Cir. 2002). [2002 LR Dec]
Search warrant for home which did not contain any
description of the evidence sought failed to comply with the Fourth Amendment's
requirement of particularity. An officer's alleged verbal description to the
homeowners of the items to be searched for was not sufficient to overcome this
defect, and the warrant did not refer to or incorporate the application or
affidavit used to obtain it. Rank and file officers on the search team were
entitled to qualified immunity, but the leader of the search team was not.
Ramirez v. Butte-Silver Bow County, #99-36138, 00-35955, 298 F.3d 1022 (9th
Cir. 2002). [2002 LR Dec]
Tenant of apartment failed to show that search
warrant issued for her apartment to seek a murder weapon suspected to be there
was improperly issued. The tenant did not point to any evidence that the
information submitted in support of the warrant was unreliable and stale.
Hamilton v. City of New Haven, 213 F. Supp. 2d 125 (D. Conn. 2002). [N/R]
Police officers could reasonably believe that
homeowner's nephew, who stated that he was in control of the house for the
weekend, had authority to consent to a warrantless search of the premises after
he reported to police that minors present in the house were having a drinking
party with alcoholic beverages. Carter v. Rosenbeck, 214 F. Supp. 2d 889 (C.D.
Ill. 2002). [N/R]
Police officers' alleged actions of obtaining a
search warrant for a residence "attached" to a restaurant, but then
also searching the restaurant under the same warrant violated clearly
established law so that they were not entitled to qualified immunity from
liability. Ruby v. Horner, #01-4003, 39 Fed. Appx. 284 (6th Cir. 2002). [2002
LR Nov]
Officer did not act improperly in obtaining a
search warrant for a residence, based on informant's identification of a
resident as being involved in a counterfeiting operation, despite the fact that
the informant's identification subsequently turned out to be mistaken. Other
officers participating in the search reasonably relied on the facial validity
of the search warrant. Ferguson v. City of Louisville, 199 F. Supp. 2d 625
(W.D.Ky. 2002).[2002 LR Sep]
City could not be held liable for shooting and
killing of apartment occupant following allegedly unconstitutional warrantless
entry. Evidence of eleven prior incidents of warrantless searches of residences
by a gang task force was insufficient to establish the existence of a municipal
custom of warrantless searches of residences in violation of the Fourth
Amendment. Appeals court also rejects claim for liability based on inadequate
training theory. Pineda v. City of Houston, #01-20189, 291 F.3d 325 (5th Cir.
2002). [2002 LR Sep]
Police officers acted in a reasonable manner for
purposes of qualified immunity in reading warrants of attachment for contempt
as allowing them to enter his motel room when they stated that they could be
served in the daytime in a public place when it was not clear under prior Idaho
law whether the restrictions were to be read "conjunctively or
disjunctively." Plaintiff was also barred under the doctrine of collateral
estoppel from relitigating the issue of whether the officers complied with the
"knock and announce" rule when it was determined at criminal trial
suppression hearing that they had. Hall v. Tudbury, #00-35831, 35 Fed. Appx.
428 (9th Cir. 2002). [N/R]
Disputed issues of material fact existed as to
whether the mother of a resident's child consented to police detectives opening
and damaging a locked safe in his home and whether a reasonable officer would
have considered her authorized to do so, precluding qualified immunity for the
detectives in the resident's federal civil rights lawsuit for the alleged
unlawful search of his house and locked safe. Smith v. Heimer, #02-1042, 35
Fed. Appx. 293 (8th Cir. 2002). [N/R]
Resident of a home who was not its owner had a
reasonable expectation of privacy, but his privacy was not violated by
noncompliance with the "knock-and-announce rule" when he was not
present during the execution of a search warrant. Further, as a non-owner, he
lacked standing to assert a claim for damage to the property, such as the
breaking of doors. Eiland v. Jackson, #01-3139, 34 Fed. Appx. 40 (3rd Cir.
2002). [2002 LR Aug]
Colorado Supreme Court holds that U.S. and
Colorado constitutions protect an individual's "fundamental right to
purchase books anonymously," and imposes a requirement under state law
that bookstores be given an opportunity for an adversarial hearing prior to the
execution of a search warrant seeking customer purchase records, to balance the
need for the search against the privacy interests of the customers. Tattered
Cover, Inc. v. City of Thornton, #01SA205, 44 P.3d 1044 (Colo. 2002).
[2002 LR Aug]
Police officers were not subject to liability for
the alleged improper destruction of property in a home during the execution of
a residential search warrant on a "group liability" theory. Officers
who remained outside of the home during the search could not be held liable for
officers' alleged actions inside on the basis that they were "integral
participants" in the allegedly unlawful conduct. Jones v. Williams,
#00-56929, 286 F.3d 1159 (9th Cir. 2002). [2002 LR Jul]
County sheriff did not violate the rights of
pawnbrokers by conducting administrative searches of their businesses to ensure
compliance with a Florida state record keeping statute, but statute did not
empower him to immediately seize property for which records could not be
produced. Quik Cash Pawn & Jewelry Inc. v. Sheriff of Broward County, 279
F.3d 1316 (11th Cir. 2002). [2002 LR Jul]
Officers were entitled to qualified immunity for
alleged improper search within hunter's deer hangpole located 25 yards from a
wooden structure on a 50 acre tract of recreational land. There were genuine
issues of material fact as to whether structure qualified as a "home"
and whether the deer hangpole was within the curtilage of the "home"
or in an open field. While it was clearly established that the Fourth Amendment
warrant requirement applies to the curtilage of a home, the officers could
reasonably have believed that the deer hangpole stood in open fields. Hart v.
Myers, 183 F. Supp. 2d 512 (D. Conn. 2002). [N/R]
Officers were entitled to absolute immunity for
entering a building owned by the plaintiff for the purpose of enforcing a
court-ordered home visit by social service workers conducting a home study of
the care of children who resided there. Entry did not constitute a
"search" and officers did not see or touch business or confidential
records or even open the closet where the records were stored. Monroe v. Pueblo
Police Department, No. 01-1112 30 Federal Appendix 778 (10th Cir. 2002). [2002
LR Jun]
Jury properly awarded woman $7,500 in
damages for forced warrantless entry into her home by two deputies who were
accompanying social workers on a "child welfare check" concerning why
the woman's son had not been in school. Homeowner informed officers that the
child was not present and there was nothing they observed which would justify
an "emergency" exception to the warrant requirement for entry. Chavez
v. Board of County Commissioners of Curry County, No. 21,066, 31 P.3d 1027
(N.M. App. 2001). [2002 LR Apr]
A genuine issue of material fact as to whether
police officers had knowledge concerning the actual location of a telephone
caller who reported that an intoxicated man was attempting to get into her
house precluded summary judgment for the officers in a lawsuit filed by a
homeowner after the officers mistakenly went to and entered his home, rather
than the home of the caller. Davenport v. Simmons, 192 F. Supp. 2d 812 (W.D.
Tenn. 2001). [N/R]
Police officer was in hot pursuit of suspect when
he entered a home without a warrant and his entry therefore did not violate the
occupants' Fourth Amendment rights. Officer had probable cause to believe that
the visitor to the home was an immediate threat to either the officer or the
public, when he had previously injured his sister and slashed his parent's
tires. Hickey v. Hayse, 188 F. Supp. 2d 722 (W.D. Ken. 2001). [N/R]
Search of man's residence under warrant was not
rendered unreasonable because it was conducted while his children waited for
the school bus outside the home, in the absence of any claim that the officers
harmed or threatened the children in any way. Handcuffing of man for two hours
while they searched his home under the warrant did not violate his Fourth
Amendment rights, particularly when they also arrived armed with an arrest
warrant. Martin v. Rodriguez, 154 F. Supp. 2d 306 (D. Conn. 2001). [N/R]
City could not be held liable for damages allegedly
caused by officers' warrantless search of apartment when there was no evidence
that the city's official policies or practices contributed to or caused the
alleged unconstitutional search. New trial required, however, on jury verdict
for officers, when jury instructions were confusing and might have led the jury
to believe that the officer's subjective intent to violate the plaintiff's
rights was required for liability, rather than a finding of objective
unreasonableness. Hudson v. New York City, #99-7256, 271 F.3d 62 (2nd Cir.
2001). [N/R]
Arrestee could pursue a claim for unreasonable
search of his property even if the evidence seized was introduced in the
criminal trial which resulted in his still-outstanding conviction. James v.
York County Police Dept., Civ. A. No. 1:CV-01-1015, 167 F. Supp. 2d 719 (M.D.
Pa. 2001). [N/R]
347:166 Officers' entry into home with arrest
warrant for man believed to be staying there, based on unverified anonymous tip
would be unlawful if they did not have a reasonable belief that he lived there,
as opposed to being a guest in the home; disputed facts required further
proceedings. Watts v. County of Sacramento, #00-15099, 256 F.3d 886 (9th Cir.
2001).
346:157 Officers were not entitled to qualified
immunity for arresting homeowner for obstructing justice for objecting verbally
to their proposed search of the curtilage of his home, where they did not have
probable cause or a warrant to do so; his holding of a beer bottle on his own
property also did not support an arrest for "public" intoxication.
Rogers v. Pendleton, No. 00-2130, 249 F.3d 279 (4th Cir. 2001).
344:126 City officials were not required to first
attempt to obtain building owner's consent to inspection of his building before
attempting to obtain an administrative search warrant based on officer's
affidavit that the building appeared to be "unsafe and dangerous."
Meloche v. City of West Branch, 134 F. Supp. 2d 859 (E.D. Mich. 2001).
343:108 Officers were entitled to qualified
immunity on claim that their search warrant for a residence was overbroad, when
they could reasonably have believed that the residence was a single family home
with multiple unrelated occupants; once they realized, however, that some rooms
were separate living units, the scope of the permissible search would narrow,
and further detention, at that point, of residents of other rooms might also
become unreasonable. Mena v. City of Simi Valley, No. 99-56720, 226 F.3d 1031
(9th Cir. 2000).
343:109 Entry into home was valid, based on
consent of 13-year-old daughter of couple, left to care for four minor
children; probable cause existed to make arrest for neglect. Gonzalez v. City
of Tampa, No. 99-1919, 776 So. 2d 290 (Fla. App. 2000).
341:77 Sheriff's department was not liable for
execution of "no knock" search warrant on the wrong residence when
city police officer who obtained the warrant stated the wrong address in the
application; city officer, however, was not entitled to immunity and will face
trial on whether his error rose to the level of incompetence; court finds that
no municipal policy or custom was shown, hence no municipal liability. Rossi v.
City of Amsterdam, 712 N.Y.S.2d 79 (A.D. 2000).
339:46 Elderly father arrested for resisting
unexplained warrantless entry into his home by police officers was entitled to
$12,500 award for false arrest; no exigent circumstances supported the
warrantless entry into the residence to arrest his intoxicated son. Carter v.
City of Natchitoches, No. 00-349, 772 So. 2d 186 (La. App. 2000).
338:30 New York court rules that arrestee whose
conviction was overturned on the basis of a defective affidavit for search
warrant was not entitled to pursue a state constitutional claim for
unreasonable search and seizure; exclusion of the evidence was an adequate
remedy when the arrestee was prosecuted, so no damage remedy was required.
Martinez v. City of Schenectady, 714 N.Y.S.2d 572 (A.D. 2000).
338:28 Broad generalizations that drug addicts
are "prone to steal," contained in affidavit for a search warrant,
were insufficient to provide probable cause for the search and seizure of
methadone clinic patient records during investigation of theft from nearby
jewelry store; no showing, however, that county policy or custom caused search.
Doe v. Broderick, Nos. 99-1893, 99-1894, 225 F.3d 440 (4th Cir. 2000).
337:12 Brief detention of residence occupants
during execution of proper search warrant was not unlawful; supervising officer
was entitled to official immunity under Georgia state law for discretionary
action in detaining occupants. White v. Traino, No. A00A0129, 535 S.E.2d 275
(Ga. App. 2000).
337:14 Strip search of minor female, not named in
search warrant, during search of trailer for marijuana, would not be reasonable
absence particularized suspicion that she was concealing drugs on her person;
deputy was not entitled to qualified immunity from liability. Sims v. Forehand,
112 F. Supp. 2d 1260 (M.D. Ala. 2000).
329:70 Miami reaches $2.5 million settlement in
death of 72-year-old man in his bedroom during SWAT team raid on his apartment
in which 122 shots were fired; officers asserted that decedent fired two shots
at them after they properly knocked and announced they were executing search
warrant; plaintiffs asserted that gun and drugs were "planted" by
officers to "coverup" misconduct, and that officers did not properly
announce their identity as police. Brown v. City of Miami, U.S. Dist. Ct.
Miami, Fla., reported in The National Law Journal, p. A10 (March 27, 2000).
331:109 Officers were not entitled to qualified
immunity when they obtained search warrant for couples' residence based on an
affidavit that merely stated that they were conducting a "death
investigation" of a five-year-old girl's death, without any facts
indicating that there was a suspicion of sexual abuse or any other crime. Myers
v. Medical Center of Delaware, Inc., 86 F.Supp. 2d 389 (D. Del. 2000).
332:125 Businessperson was not barred from
pursuing federal civil rights lawsuit over allegedly illegal seizure of items
from his business and storage locker because of his criminal conviction for
certain charges arising out of the operation of his business; a finding of
illegality of the seizure of certain items would not necessarily imply the
illegality of the conviction. Schwartz v. City of Phoenix, 83 F.Supp. 2d 1102
(D. Ariz. 2000).
333:140 Officers were entitled to qualified
immunity for making a warrantless search of a woman's residence based on
consent given by a non-resident part-time caretaker for the resident, but not
for entering and searching her bedroom. Kaspar v. City of Hobbs, 90 F.Supp. 2d
1313 (D.N.M. 2000).
333:139 Officers' warrantless entry into a home
where unsupervised underage drinking was going on was justified by exigent
circumstances of possible escape of intoxicated teenagers and destruction of
evidence while a search warrant was being obtained, along with the danger to
the public of intoxicated driving; officers were entitled to qualified
immunity. Howes v. Hitchcock, 66 F.Supp. 2d 203 (D. Mass 1999).
[N/R] Apartment tenants had standing to challenge
allegedly unconstitutional search of rented premises when landlord, who wanted
to evict tenants, did not have a valid order granting him exclusive possession
at the time deputy sheriffs allegedly engaged in search. Ryan v. Mary
Immaculate Queen Center, No. 98-3849, 188 F.3d 857 (7th Cir. 1999).
[N/R] Exigent circumstances justified officers'
warrantless entry into plaintiffs' home to pursue fleeing felony suspect, but
this did not provide officers with a general right to handcuff and detain at
gunpoint the occupants of the home. Ingram v. City of Columbus, No. 97-4303,
185 F.3d 579 (6th Cir. 1999).
330:94 Officers who entered an apartment with an
arrest warrant but no search warrant were entitled to qualified immunity from
apartment resident's lawsuit claiming illegal search when it turned out that
subject of arrest warrant did not reside there, since officers had an
objectively reasonable belief that he did. Clayton v. City of Kingston, 44
F.Supp. 2d 177 (N.D.N.Y. 1999).
327:45 Anonymous phone call saying that woman
heard a child within a house shout "No Daddy, no" and "no, no,
no" did not provide "exigent circumstances" justifying
warrantless entry into home by police officer and social worker fourteen days
later or requiring mother to pull down three-year-old's pants to inspect for
bruises. Calabretta v. Floyd, #97-15385, 189 F.3d 808 (9th Cir. 1999).
327:45 Two-hour administrative search of
nightclubs by forty officers and revenue agents, during which the identity of
400 patrons was checked to detect underage drinking was not unreasonable;
rather, it was a valid administrative search under state liquor laws. Crosby v.
Paulk, #97-8585, 187 F.3d 1339 (11th Cir. 1999).
328:60 Lawsuit claiming that sheriff directed
deputies to conduct warrantless entry into apartment to serve eviction notice
on tenant stated claim for violation of Fourth Amendment rights; appeals court
rejects argument that both a search and a seizure are required for a Fourth
Amendment violation; sheriff's personal direction was a sufficient basis for
supervisory liability. Ryan v. Mary Immaculate Queen Center, No. 98-3849, 188
F.3d 857 (7th Cir. 1999).
323:174 Deputy liable for $8,500 to homeowner for
allowing private security officer to accompany him while he executed a search
warrant for unregistered guns, and allowing security officer to conduct his own
independent search for stolen property not mentioned in the warrant. Buonocore
v. Harris, #96-1847, 96-1984, 96-1986, 134 F.3d 245 (4th Cir. 1998).
{N/R} There was a genuine issue of fact as to
whether or not officer's warrantless entry to into a house to arrest a
resident's son was justified by exigent circumstances. Guite v. Wright, No.
97-3864, 147 F.3d 747 (8th Cir. 1998).
{N/R} Arrest within apartment would be unlawful
even with probable cause if made without either arrest warrant or exigent
circumstances. Rogers v. Carter, #96- 1916, 133 F.3d 1114 (8th Cir. 1998).
322:158 Officers properly made warrantless entry
into residence after they were told that "bad" domestic dispute had
just occurred inside and that screaming had been heard coming from the
building; search of residence was proper, since female resident's statement
that her boyfriend had left, to safeguard her and her children against the possibility
that he was actually still present and had intimidated her into making that
statement. Tierney v. Davidson, #97-7172, 133 F.3d 189 (2nd Cir. 1998).
322:157 Statement of alleged kidnap victim that
she had been held captive in a residence and raped there, and that she observed
guns and stolen videos in the home, was sufficient, with other information to
support the issuance of two search warrants for residence, as well as the
arrest of a resident based on her positive identification. Carson v. Lewis, 35
F.Supp. 2d 250 (E.D.N.Y. 1999).
321:142 Entry into woman's home without search
warrant was proper when officers possessed an arrest warrant for her son and
had a reasonable basis to believe that son both resided there and was likely to
be inside. Valdez v. McPheters, #97-4057, 172 F.3d 1220 (10th Cir. 1999).
319:99 U.S. Supreme Court unanimously holds that
allowing members of the news media to enter private residences along with law
enforcement officers during the execution of arrest or search warrants violates
the Fourth Amendment rights of the residents; individual defendant officers
were entitled to qualified immunity in two cases before the Court. Wilson v.
Layne, #98-83, 119 S.Ct. (1999); Hanlon v. Berger, No. 97-1927, 119 S.Ct. 1706
(1999).
318:94 New York City reaches $500,000 settlement
with Hells Angels members and their girlfriends for search of apartments over
motorcycle club headquarters that allegedly exceeded scope of search warrant
for ground level. Dowling v. City of New York, U.S. Dist. Ct. S.D.N.Y.,
reported in The New York Times, National Edition, p. A12 (April 3, 1999).
318:84 Determination, in state criminal appeal,
that affidavit for search warrant was inadequate did not bar officer who signed
affidavit from asserting, in subsequent federal civil rights lawsuit, that she
was entitled to qualified immunity for reasonably believing that affidavit was
adequate. Gentile v. Bauder, 718 So. 2d 781 (Fla. 1998).
316:54 Man convicted of two counts of criminal
sexual conduct with minors was not entitled to damages from police officers who
immediately removed his infant daughter from his home without a warrant when
his niece had stated that she and another minor had been sexually abused there.
Falkiewicz v. City of Westland, 25 F.Supp. 2d 783 (E.D. Mich. 1998).
315:40 Officers not entitled to qualified
immunity for placing man in handcuffs for four hours during search of his
residence for evidence of crimes allegedly committed by co-resident; man
detained was not suspected of any criminal activity and indeed initially exited
home to assist officers when asked to do so. Heitschmidt v. City of Houston,
#97- 20316, 161 F.3d 834 (5th Cir. 1998).
315:35 U.S. Supreme Court reverses appeals court
decision requiring officers seizing property pursuant to search warrant to give
property owners detailed notices explaining state law procedures for asking
court to return seized property. City of West Covina v. Perkins, #97-1230, 119
S.Ct. 678 (1999).
313:14 Police officers did not act unreasonably
in entering backyard of home in response to phone call complaining of alleged
underage drinking party; sign in front of home indicated party was "in
back" and they could reasonably expect party host or homeowner to be
there. Alvarez v. Montgomery County, #97-1648, 147 F.3d 354 (4th Cir. 1998).
313:13 Backyard and unattached garage behind home
were places where homeowner had a reasonable expectation of privacy; officers
violated his constitutional rights by conducting warrantless search of garage
for stolen goods; officers were entitled, however, to qualified immunity, since
law on this issue was not previously clearly established. Daughenbaugh v. City
of Tiffin, #97-3200, 150 F.3d 594 (6th Cir. 1998).
301:13 Police officers entitled to qualified
immunity for seizing, pursuant to valid warrant, computer used to transmit
obscene materials, even if it also contained non-obscene electronic mail
belonging to users of on-line computer bulletin board; good faith reliance on search
warrant gave officers complete statutory defense to claim under federal statute
barring unauthorized interception of electronic communications. Davis v.
Gracey, 111 F.3d 1472 (10th Cir. 1997).
301:14 Officers entitled to qualified immunity
for entering couple's home without a search warrant to arrest non- resident son
pursuant to an arrest warrant after son answered door; no clearly established
law prohibited entry under such circumstances and municipality could not be
held liable for failure to teach officers that such conduct was
unconstitutional when it was not clear that it was. Joyce v. Town of Tewksbury,
Mass., 112 F.3d 19 (1st Cir. 1997).
302:30 Plaintiffs entitled to in-chambers
examination of information regarding confidential informant relied on in
affidavit for search warrant when description of residence in affidavit was
incorrect and no drugs were found in residence search. Holland v. O'Bryant, 958
F.Supp. 10 (D.D.C. 1997).
303:43 Sergeant directing entry, with warrant,
into home of narcotics suspect with violent record, could reasonably conclude
that forced entry immediately after announcement of police presence was needed
to avoid armed response; federal appeals court overturns $92,500 jury award to
home occupants, one of whom was shot, against sergeant, who was entitled to
qualified immunity. Thompson v. Mahre, 110 F.3d 716 (9th Cir. 1997).
303:44 Overturning of apartment resident's drug
conviction by New York high court on state constitutional grounds, together
with allegations that officers withheld some facts from judge issuing search
warrant for apartment, did not support federal civil rights liability when
"totality of circumstances" showed that they had objective reason to
believe that facts provided probable cause for search warrant; officers
entitled to qualified immunity. Martinez v. City of Schenectady, 115 F.3d 111
(2nd Cir. 1997).
309:141 Protective sweep inside home following
arrest of suspects immediately outside of home was not properly supported by articulable
belief that others who could endanger those on the arrest scene were inside;
officers who conducted search were entitled to qualified immunity, however, in
absence of controlling prior case law on the subject. Sharrar v. Felsing, 128
F.3d 810 (3rd Cir. 1997).
309:142 Detective was entitled to qualified
immunity for obtaining search warrant for doctor's office to look for evidence
of drug trafficking, unlicensed practice of medicine by doctor's son, and
Medicare rules violations; search warrant is based on probable cause that
evidence of crime will be found on premises, not that owner of premises is
guilty of any offense. Mays v. City of Dayton, 134 F.3d 809 (6th Cir. 1998).
An officer’s failure to disclose in a
search warrant application the presence of “For Sale” and “Sold” signs on the
target property constituted a material omission. Although the signs on their
own may not have established dispositively that the house belonged to new
owners, they would have “put a reasonable magistrate on notice that a change in
occupancy would be occurring in the near future.” Liston v. County of
Riverside, 120 F.3d 965. (9th Cir. 1997).
{N/R} Homeowners whose
home was search pursuant to warrant for murder suspect raised genuine issue as
to whether officers acted reasonably in dispensing with knock and announce
requirement; officers were not entitled to qualified immunity. Kornegay v.
Cottingham, 120 F.3d 392 (3rd Cir. 1997).
{N/R} Deputy sheriff's brief, invited entry into
tenants' residence to assist landlord's agent in showing premises to potential
new tenant, even if it constituted a search, was reasonable, based on deputy's
"community caretaking" function; deputy acted with motive to keep the
peace in dispute between tenant and landlord. Kalmas v. Wagner, 943 P.2d 1369
(Wash. 1997).
{N/R} Even if search warrant officer had was
invalid for search of motel room, officer could still legally enter based on
arrest warrants he also had; police chief's alleged awareness that an officer
twice executed warrant to search motel room could not be a basis to impose
liability on
chief or municipality, since chief also knew, on
the second occasion, that the officer also had valid arrest warrants. Simms v.
Village of Albio, N.Y. 115 F.3d 1098 (2nd Cir. 1997).
{N/R} Male officer was not required to bring
female officers along while executing search warrant on home where he knew
female residents would be present and dressed for bed; requiring presence of
female officers in all such circumstances would hinder police in efficient
performance of their duties. Laise v. City of Utica, 970 F.Supp. 605 (E.D.
Mich. 1997).
289:13 Officer's learning that the residential
house manager of a facility for parolees and drug addicts allegedly lied on his
firearms permit application, and presence of guns in manager's private
apartment in the facility did not create exigent circumstances allowing
warrantless entry and seizure of the weapons, Massachusetts high court rules;
state statutory scheme for gun ownership gave holder of permit right to appeal
any permit revocation and to possess weapons pending any such appeal Pasqualone
v. Gately, 422 Mass 398, 662 N.E.2d 1034 (1996).
289:14 Warrantless entry into home to seize dog
sought for violating city "leash" ordinance was not justified by
"exigent circumstances" Conway v. Pasadena Humane Society, 52
Cal.Rptr.2d 777 (Cal App. 1996).
290:21 Officers were entitled to qualified
immunity for allowing television news crew to accompany them while executing a
search warrant on a residence; federal appeals court rules that it was not
"clearly established" at the time of the search that such conduct
violated the Fourth Amendment Parker v. Boyer, 93 F.3d 445 (8th Cir. 1996).
290:30 Detention of naked female resident of home
in bathroom during execution of search warrant on residence was not
unreasonable and refusal to allow her to leave bathroom during security sweep
to get dressed did not violate her privacy rights; officers' actions were
"prudent" under circumstances during execution of search warrant for
drugs and guns, and female officer was summoned to take charge of female
resident Crosby v. Hare, 932 F.Supp. 490 (WDNY 1996).
291:42 City could not be liable for alleged
excessive use of force while search warrant for residence was being executed,
in the absence of any evidence of a municipal custom or policy of encouraging
or tolerating the use of excessive force while executing search warrants or the
execution of illegal search warrants Jenkins v. Wood, 81 F.3d 988 (10th Cir.
1996).
291:46 Frequent visitor to residence, who went
there to aid an elderly woman who previously was her neighbor, had a legitimate
expectation of privacy in the residence and could sue on allegation that
officers entered without knocking and announcing when they executed search
warrant; factual issues about whether officers did knock and announce and
whether front door opened and quickly shut prevented federal appeals court from
addressing legal issues surrounding denial of officer's motion for qualified
immunity Bonner v. DR Anderson, 81 F.3d 472 (4th Cir. 1996).
291:47 California federal court jury awards
$200,000 in damages to commercial nude social club where patrons may
"disrobe, socialize and dance in the nude and/or engage in sexual
acts" on claim that city harassed the business Poppell v. City of San
Diego, U.S. Dist. Ct., San Diego Ca, reported in The Chicago Daily Law
Bulletin, p. 1 (November 18, 1996).
293:78 Even if law enforcement officers knowingly
misrepresented certain facts to a court to obtain a search warrant for an auto
salvage business, there was no Fourth Amendment violation because a warrantless
search of such a business was authorized under state law based on the nature of
the business; further, unchallenged portions of application for warrant
provided basis for probable cause for a search, even with challenged material
struck Schwartz v. Pridy, 94 F.3d 453 (8th Cir. 1996).
293:79 Arrestee who was convicted of an offense
and whose conviction was upheld on appeal, could not sue police officers for
conducting an illegal search of his motel room when he had already litigated
the issue of the legality of the search during the criminal proceedings, and
the legality of the search had been upheld Lato v. Sieverman, 919 F.Supp. 336
(CD Cal 1996). Editor's Note: " See also Wallace v. Roche, 921 F.Supp. 946
(E.D.N.Y. 1996), which similarly dismissed a federal civil rights lawsuit
against officers based on the fact that the issues presented before the state
court in the criminal proceeding during a hearing on a motion to suppress
evidence were identical to those in the federal civil rights proceeding
295:111 Deputies and state employees were
entitled to qualified immunity in suit brought by operator of animal shelter
searched pursuant to warrant; presence of television camera crew did not
violate plaintiff's rights as search warrant explicitly authorized videotaping
and photographing during search Stack v. Killian, 96 F.3d 159 (6th Cir. 1996).
299:174 Warrantless search of apartment with
weapons drawn was justified by exigent circumstances when officers were in
active pursuit of violent murder suspect. Bunch v. City of Elizabeth City, 945
F.Supp. 899 (E.D.N.C. 1996).
299:174 Police officers who obtained and executed
search warrant for the search of "all persons" present in two
residences were not entitled to qualified immunity; affidavit for warrant did
not establish probable cause that all persons present were participants in
crime; judicial approval of warrant did not alter result Marks v. Clarke, 102
F.3d 1012 (9th Cir. 1996).
{N/R} Officers who had a reasonable belief that
there was someone inside house in immediate peril of bodily harm entitled them
to qualified immunity from federal civil rights claim based on failure to knock
and announce before entering Dickerson v. McClellan, 101 F.3d 1151 (6th Cir.
1996).
283:100 Plain clothes officers were entitled to
qualified immunity because there was no "clearly established"
requirement that they announce their identity and purpose while executing
search warrant on business premises; officer reasonably believed that suspect
was reaching for a weapon when he shot and paralyzed him; municipalities could
not be held liable in the absence of evidence of a municipal policy, custom, or
usage St Hilaire v. City of Laconia, 71 F.3d 20 (1st Cir. 1995).
283:99 Police officer was entitled to qualified
immunity for warrantless entry into apartment when landlord told him that water
was leaking into premises below, interfering with provision of heat and hot
water for whole building Osipova v. Dinkins, 907 F.Supp. 94 (S.D.N.Y. 1995).
277:5 Federal appeals court rules that qualified
immunity protects individual civil rights defendants from liability for costs
and attorneys' fees even in actions for injunctive and declaratory relief
D'Aguanno v. Gallagher, 50 F.3d 877 (11th Cir. 1995).
277:14 Phone call reporting possible burglary,
together with open door, lights on, television on, and failure of anyone inside
house to respond to police shouts provided exigent circumstances justifying
warrantless entry into home and brief pat down search of man inside who refused
to identify himself. Murdock v. Stout, 54 F.3d 1437 (9th Cir. 1995).
277:14 Officers were not entitled to qualified
immunity for breaking into wrong home while executing valid search warrant for
drug raid; federal appeals court rules that jury must determine whether
mistaken entry into wrong house one block from target premises was reasonable
Dawkins v. Graham, 50 F.3d 532 (8th Cir. 1995). [Cross-reference: Defenses:
Qualified (Good-Faith). Immunity]
278:29 Federal appeals court upholds jury verdict
that police sergeant did not act unreasonably in inviting private security
officer to accompany police executing search warrant on private residence,
despite fact that search warrant named stolen property other than the property
security officer was concerned with as the object of the search Bills v.
Aseltine, 52 F.3d 596 (6th Cir. 1995).
282:93 Warrantless search of home seeking for
child was unreasonable, but plaintiff was not entitled to an award of
attorneys' fees after only nominal damages were awarded; plaintiff waived issue
of punitive damages by failing to raise it after verdict on liability was
announced but before jury had been dismissed Caruso v. Forslund, 47 F.3d 27
(2nd Cir. 1995). [Cross-references: Attorneys' Fees: For Plaintiff; Damages:
Punitive]
282:94 Deputy who had obtained search warrant for
residence was not entitled to qualified immunity when he subsequently led other
officers to search a nearby residence with a different address Hartsfield v.
Lemacks, 50 F.3d 950 (11th Cir. 1995).
284:125 Officers were entitled to qualified
immunity for initial mistake in entering wrong level of building while
executing search warrant, but appeals court finds factual issues as to at what
point they realized they were in the wrong place, requiring denial of qualified
immunity on reasonableness of subsequent searches and seizures and use of force
Pray v. City of Sandusky, 49 F.3d 1154 (6th Cir. 1995). [Cross-reference:
Defenses: Qualified (Good-Faith). Immunity]
284:126 City of Boston reaches $1 million
settlement with family of African-American minister who died of heart attack
after mistaken raid on his apartment Williams v. Boston, U.S. Dist. Ct. Boston,
Mass, reported in The New York Times, National Edition, pA10 (April 25, 1996).
285:142 Jury instructions which allowed
imposition of liability on an individual officer involved in search of
residence on the basis of the results of the "team effort" of the 60
officers present rather than on the basis of his own conduct were erroneous,
requiring a new trial in suit brought by residence occupants Chuman v. Wright,
76 F.3d 292 (9th Cir. 1996).
286:157 Trial court improperly ruled that
unannounced entry into residence was necessarily unlawful; court order gave
state troopers right to enter to enforce child visitation, and circumstances
could be interpreted as providing a basis to believe that the occupant inside
was preparing to use "physical violence" to avoid compliance with
court order; even if entry was illegal, this did not automatically make any use
of force to arrest plaintiff excessive Bodine v. Warwick, 72 F.3d 393 (3rd Cir.
1995). [Cross-reference: Assault and Battery: Physical]
286:158 Second warrantless search of home was not
justified by exigent circumstances when officers had already determined, during
first search, that missing child was not on the premises, and no new
information was presented in the ensuing eighteen hours Parkhurst v. Trapp, 77
F.3d 707 (3rd Cir. 1996).
{N/R} Temporary detention of persons present
during drug raid on apartment for approximately 15 minutes was not unreasonable
Baker v. Monroe Township, 50 F.3d 1186 (3rd Cir. 1995).
{N/R} Felony suspect had no reasonable privacy
interest in either public street or yard of residence where he was staying
Fontenot v. Cormier, 56 F.3d 669 (5th Cir. 1995).
{N/R} Child's consent to entry into residence was
sufficient to allow search by guardian ad litem and grandparents of child did
not have a legitimate privacy interest in closet in child's bedroom Lenz v.
Winburn, 51 F.3d 1540 (11th Cir. 1995).
{N/R} Evidence presented created a factual issue
for a jury to decide as to whether or not officers acted reasonably in making
initial warrantless raid on bar or in subsequent raid during which everyone
present was allegedly detained for two to three hours Freeman v. City of Santa
Ana, 68 F.3d 1180 (9th Cir. 1995).
268:61 Search warrant authorizing search of
"birthing clinic" for evidence of practicing medicine without a
license did not justify seizure of family and their newborn baby on the
premises, search of mother's overnight bag, and seizure of their personal
videotape of afterbirth experience; federal appeals court holds that no
objectively reasonable officer would have thought the search was reasonable
under the Fourth Amendment Hummel-Jones v. Strope, 25 F.3d 647 (8th Cir. 1994).
269:77 Officers acted unreasonably, during home
search, when they carried disabled man with multiple sclerosis from his sick
bed to living room couch without providing him something to cover his genitals
and left him there handcuffed and sitting up for two hours rather than
returning him to his bed after his bedroom had been searched Franklin v.
Foxworth, 31 F.3d 873 (9th Cir. 1994).
269:78 Police officers acted reasonably in
seeking and executing search warrant for residence based on confidential
informant's tip and their own verification of his information; fact that
narcotics suspect did not actually live at home, as they thought, but rather
frequently visited there, did not alter result George v. City of St Louis, 26
F.3d 55 (8th Cir. 1994).
270:93 Warrantless search of banquet hall in
which Gypsy meeting was taking place results in $100,000 settlement in suit
claiming that officers detained 70 persons for up to three hours and made
"ethnic slurs" when detainees objected Johns v. DeLeonardis, No
92C2547, U.S. Dist. Ct. N.D. Ill. Dec 2, 1994, reported in The Natl. Law Jour.,
p. A10 (Dec 19, 1994).
271:108 Police chief and officer were entitled to
qualified immunity for warrantless probes into home of armed man barricaded in
his house for six hours; appeals court rules, however, that warrantless probes
were not justified by exigent circumstances when man inside had not pointed gun
at anyone or threatened to use it; city was liable for policy of routinely
failing to obtain warrants in "critical incidents" regardless of
circumstances O'Brien v. City of Grand Rapids, 23 F.3d 990 (6th Cir. 1994).
271:110 Affidavits for search warrants stating
that officers detected odors associated with drug manufacturing coming from
residences were sufficient to provide probable cause, federal appeals court
rules Leatherman v. Tarrant County Narcotics Intelligence & Coordination
Unit, 28 F.3d 1388 (5th Cir. 1994).
{N/R} Sweep searches of low-income housing aimed
at reducing crime did not violate equal protection or substantive due process,
when stated purpose was enforcement of city housing and fire codes; targeting
high crime areas for housing code enforcement sweeps to reduce crime was
rational Armendariz v. Penman, 31 F.3d 860 (9th Cir. 1994).
{N/R} Officers were entitled to qualified
immunity from liability for mistaken search of house based on warrant
containing description which fit both of two adjacent houses Richardson v.
Oldham, 12 F.3d 1373 (5th Cir. 1994).
New York Mental Hygiene Law and information
officers had that man was throwing things within apartment and was allegedly
disturbed justified their warrantless entry into man's apartment Thornton v.
City of Albany, 831 F.Supp. 970 (NDNY 1993).
Plain view seizure of stolen camera from pawn
shop was permissible, but there were factual questions as to whether officer
violated state statute in seizing it to return it to person reporting it
stolen, rather than following statutory procedure G & G Jewelry, Inc v.
City of Oakland, 989 F.2d 1093 (1993).
Federal appeals court upholds dismissal of civil
rights lawsuit against individual federal agent for allegedly supplying
misleading information in search warrant affidavit; court rules that
"heightened pleading standard" requiring allegation of specific facts
showing that agent knew or had reason to know his statements were false was
required and was not met Branch v. Tunnell, 14 F.3d 449 (9th Cir), cert denied,
114 S.Ct. 731 (1994), rehearing denied, 114 S.Ct. 1342 (1994).
Warrantless seizure and disposition of stolen
ring from pawnshop violated pawnshop owner's Fourth Amendment and due process
rights; officer should have obtained search warrant Winters v. Board of County
Commissioners, 4 F.3d 848 (10th Cir. 1993).
$98 million settlement in civil rights lawsuit
over six-site search of businesses and residences owned by business people and
seizure of 100 boxes of business and personal financial records; suit claimed
search warrants were obtained by misrepresentation and searches were intended
to damage plaintiffs' businesses and cause emotional distress Wall v. Gwinnett
County, No 90-CV-1345-JEC, U.S. Dist. Ct. N.D. Ga August 6, 1993
Occupants of home searched without a warrant,
consent, or reason to believe that suspect sought was present there awarded
$13,500 in damages Guy v. ABC Insurance Co, 629 So.2d 1350 (La App. 1993).
Jury properly found that officers' warrantless
search of woman's residence, seeking another woman's child, was unreasonable;
plaintiff who failed to prove actual damages, however, was only entitled to an
award of $1 in damages, and no attorneys' fees Caruso v. Forslund, 842 F.Supp.
1497 (D.Conn 1994).
Arrestee's wife could not bring lawsuit for loss
of consortium resulting from her husband's lawful incarceration after he pled
guilty to criminal offense, despite her claim that a search warrant for their
residence which uncovered evidence that led to his arrest was based on false
statements by confidential informant Tate v. Derifield, 510 N.W.2d 885 (Iowa,
1994).
Parole officers making an arrest with a warrant
of a parolee at his home were entitled to qualified immunity for making a
search between a box spring and mattress to look for weapons when they had a
reasonable belief that another individual, thought to be potentially dangerous,
might also be on the premises Crooker v. Metallo, 5 F.2d 583 (1st Cir. 1993).
Officer was entitled to qualified immunity for
making a warrantless non-consensual entry into a third party's home to make an
arrest of a fleeing misdemeanant he was in hot pursuit of for a misdemeanor
committed in his presence Goines v. James, 433 S.E.2d 572 (W.Va. 1993).
Search of "former ex-felon's" residence
based on his admitted possession of firearms was not a violation of his rights,
despite his discharge from probation, when he had failed to apply to state to
have his civil rights, including the right to possess firearms, restored Baker
v. Elko County, 828 F.Supp. 798 (D.Nev 1993).
Officers who made an unannounced entry at the
rear door of an apartment after other officers had already entered through the
front door did not violate apartment occupants' rights; male officer's brief
frisk of nightgown clad female occupant was reasonable, and a requirement that
such frisks be carried out only by female officers would be unduly burdensome
Collier v. Locicero, 820 F.Supp. 673 (D.Conn 1993).
City liable for $165 million to homeowners whose
residence was mistakenly searched because it was next to a house named in a
search warrant Kegler v. City of Dearborn Heights, Mich, Wayne County Cir. Ct,
No 91-116095 No, June 11, 1993, reported in 36 ATLA Law Rptr. 327 (Nov 1993).
Officer who mistakenly entered the house next
door to the one for which he was executing a search warrant did not violate the
occupants' civil rights when he entered only for enough time to ascertain that
the correct house was next door Linely v. DeMoss, 83 Ohio App. 3d 594, 615
N.E.2d 631 (1992).
Warrant less search of bar following execution of
arrest warrants on female dancers for lewd conduct was justified as an
"administrative inspection" under Michigan's liquor laws, and did not
constitute a violation of constitutional rights Hamilton v. Lokuta, 803 F.Supp.
82 (E.D. Mich 1992).
Criminal defendant's guilty plea in prosecution
based on evidence seized during search of his apartment did not bar him from
bringing a federal civil rights lawsuit against officers challenging the
constitutionality of the search when he abandoned a motion to suppress the
evidence in the criminal case, so that the issue was not "actually
litigated" Linnen v. Armainis, 991 F.2d 1102 (3d Cir. 1993).
Officer's alleged theft of one can of soda pop
while executing search warrant on business was sufficient to state a federal
civil rights claim Hessel v. O'Hearn, 977 F.2d 299 (7th Cir. 1992).
Determination, in prior criminal proceeding, that
search of apartment pursuant to search warrant did not violate the Fourth
Amendment barred the apartment resident's later federal civil rights claim that
his Fourth Amendment privacy rights were violated by the search Munz v. Parr,
972 F.2d 971 (8th Cir. 1992).
Sheriff's search of residence, supported by
warrant based on reliable confidential information concerning drug sales in
home, was objectively reasonable Drum v. Fountain, 788 F.Supp. 487 (D.Kan
1992).
Update: U.S. Marshal's' "dragnet" style
raid on homeless shelter, initially based on the search for a single fugitive,
violated the residents' Fourth Amendment rights Community for Creative
Non-Violence v. Unknown Agents, 797 F.Supp. 7 (DDC 1992).
City, county, Sheriff and deputies were not
liable for breaking into citizen's apartment while pursuing a suspect on an
outstanding misdemeanor arrest warrant Coleman v. City of Dothan, 598 So.2d 873
(Ala 1992).
Deputy sheriffs' assistance to employees of a
private trailer camp in illegally evicting a trailer home without a court order
"implicated" the Fourth Amendment protection against unreasonable
seizures; Supreme Court holds that Fourth Amendment protects property even when
privacy or liberty is not interfered with Soldal v. Cook County, Illinois, 61
USLW 4019 (Dec 8, 1992).
Fourth Amendment applied to search of homeless
shelter; shelter operators, shelter director, and 500 occupants of shelter
could sue U.S. Marshals who woke sleeping homeless persons during raid to see
whether any matched photo of fugitive community for Creative Non-Violence v.
Unknown Agents, 791 F.Supp. 1 (DDC 1992).
Landlord whose property was damaged when police
lawfully executed a no-knock search warrant on a tenant was entitled to
compensation for a "physical taking" of his property Wallace v.
Atlantic City, 257 NJ Super 404, 608 A.2d 480 (NJ Super L 1992).
Mississippi deputies who obtained search warrant
but did not participate in search were entitled to qualified public official
immunity from liability for damages allegedly occurring during search; deputies
who executed warrant were not entitled to such immunity Barrett v. Miller, 599
So.2d 559 (Miss 1992).
Officers had "arguable" probable cause
to obtain search warrants for two houses based on three children's
"explicit" and "detailed" descriptions of alleged satanic
ritual sexual abuse occurring there; defendant officers were entitled to
qualified immunity Lowe v. Aldridge, 958 F.2d 1565 (11th Cir. 1992).
Police officers who invited private security
guard to accompany them during execution of search warrant were not entitled to
summary judgment in homeowner's civil rights suit over guard's search for items
not specified in search warrant Bills v. Aseltine, 958 F.2d 697 (6th Cir.
1992).
Individual officers not liable for entry with
"no knock" warrants into suspected crack house executed via breaking
through an exterior wall; city might be liable, under Minnesota state
constitution, for compensable "taking" of property if building owners
were innocent third parties with no involvement in the criminal activity in
their building McGovern v. City of Minneapolis, 480 N.W.2d 121 (Minn. App.
1992).
Couple whose house was mistakenly searched
pursuant to a search warrant for an adjoining house could sue officer who
obtained warrant based on informant's description of the "second house on
the right"; officer was not entitled to qualified immunity Navarro v.
Barthel, 952 F.2d 331 (9th Cir. 1991).
Oklahoma statute allowing police officers to
conduct warrant less inspections of pawnshops did not violate Fourth Amendment
rights of store owner in whose shop stolen items were seized S & S Pawn
Shop Incorporated v. City of Del City, 947 F.2d 432 (10th Cir. 1991).
Sheriff and deputy were not entitled to qualified
immunity for alleged warrant less digging up of pasture in search for murder
victim's body; "open fields" doctrine did not apply to search of land
below surface Husband v. Bryan, 946 F.2d 27 (5th Cir. 1991).
Movement of trailer home from trailer camp,
without an effort to search it, was not a "seizure" prohibited by the
Fourth Amendment; deputies who stood by to prevent owners from opposing
eviction not liable despite absence of a court eviction order Soldal v. County
of Cook, 942 F.2d 1073 (7th Cir. 1991).
Homeowners subjected to illegal warrant less
search of their house, but suffering no consequential damages were entitled to
an award of $1 plus attorneys' fees of $12,83334 Ruggiero v. Krzeminski, 928
F.2d 558 (2nd Cir. 1991).
Officer armed with arrest warrant for fugitive
could lawfully search the fugitive's parents' house, then occupied by a third
party, when they reasonably (but incorrectly). thought the fugitive was living
there; even if search did violate the Fourth Amendment, officer was entitled to
qualified immunity because he reasonably relied on advice of prosecutor and
judge that arrest warrant was sufficient Bratton v. Toboz, 764 F.Supp. 965
(M.D. Pa 1991).
Warrantless entry onto busy premises to search
for and abate nuisance violated fourth amendment Conner v. City of Santa Ana,
897 F.2d 1487 (9th Cir. 1990).
Search warrant for house was adequate even
without statements in affidavit as to reliability of confidential informant
when it indicated that informant had made a "controlled buy" of drugs
in the premises to be searched Polk v. Williams, 565 So.2d 1387 (Fla App.
1990).
Officers' use of flashing squad car lights when
coming to home to accompany third party who was removing her property from home
was not unreasonable seizure; homeowner could not recover from officers or city
for heart attack following incident Lenn v. Gentry, 762 F.Supp. 1342 (WS D Ind
1990).
Officer's use of SWAT team and searching
furniture and behind wall coverings while executing search warrant for business
records upon radio station was not unreasonable; plaintiff showed no
unconstitutional policy by city; prosecutor who participated in search was
absolutely immune Pachaly v. City of Lynchburg, 897 F.2d 723 (4th Cir. 1990).
Officers had no right to enter home to seize
child and deliver her to non custodial police officer father without court
order, absent emergency circumstances; denial of qualified immunity upheld
Hurlman v. Rice, 927 F.2d 74 (2nd Cir. 1991).
Homeowners failed to show that two no-knock
entries of their house by officers armed with search warrants for drugs were
unreasonable as not based on exigent circumstances; even if searches were
constitutionally unreasonable, no city policy or custom causing such violations
was shown Fenner v. Dawes, 748 F.Supp. 404 (E.D. Va 1990).
California statutes allow officers to seize
property from pawnbrokers identified as stolen, as well as to place a
"hold" on it Christians v. Chester, 267 Cal.Rptr. 124 (Cal Ap 1990).
Officers conducting search of house who removed
valuable silver for safekeeping and may have "tipped off" IRS, which
executed tax levy on silver, entitled to qualified immunity Russelll v. Hardin,
879 F.2d 417 (8th Cir. 1989).
Supervisory personnel were entitled to qualified
immunity for alleged illegal aerial and ground search of rural driveway
Williams v. Garrett, 722 F.Supp. 254 (WD Va 1989).
Officer who obtains search warrant for wrong
residence as "dope house" by making materially false statements
knowingly or recklessly may be liable for civil rights violation Hill v.
McIntyre, 884 F.2d 271 (6th Cir. 1989).
Employers and workers could sue immigration &
naturalization service for "pattern and practice" of unconstitutional
workplace raids targeting Hispanic persons for questioning and detention Pearl
Meadows Mushroom Farm, Inc v. Nelson, 723 F.Supp. 432 (N.D.Cal 1989).
Officer could seize furs not listed in search
warrant when he had probable cause to believe they were stolen; affidavit had
sufficient information for issuance of warrant Kaiser v. Lief, 874 F.2d 732
(10th Cir. 1989).
Up to 50 homosexual and bisexual men who
frequented gay bar to receive $5,000 each in damages for police raid Patrykus
v. Gomilla, U.S. Dist. Ct. N.D. Ill. reported in Chicago Sun Times, August 18,
1989
Exigent circumstances of alleged kidnapping
justified warrantless search of residence Harris v. City of Kansas City, 714
F.Supp. 1138 (D.Kan 1989).
Italian bar owner awarded $295,000 compensatory,
$10,500 punitive damages for frequent harassive searches of business, forcing
him to sell it at a loss Benigni v. City of Hemet, 868 F.2d 307 (9th Cir.
1989).
Federal court declines to create direct right of
action for violation of Colorado State Constitutional Provision prohibiting
unreasonable searches Specht v. Jensen, 863 F.2d 700 (10th Cir. 1988).
Drug raid on wrong house with search warrant
results in $850,000 jury award Golovich v. City of Vallejo, Vallejo Superior
Court, Calif, reported in Vallejo Times Herald, p. A1, October 8, 1988
Private club of gay men and lesbians denied
injunction against assaultive and insulting behavior in future raids because of
prior police conduct Travelers Social Club v. City of Pittsburgh, 685 F.Supp.
929 (WD Pa 1988).
City policy to enforcing "pawnbroker seizure
statute" allowing police to take property in pawnbroker possession upon
application of purported owner violated due process Florida Pawnbrokers v. City
of Fort Lauderdale, 699 F.Supp. 888 (S.D.Fla 1988).
No liability for police drug raid on wrong
premises Kolko v. City of Rochester, 461 N.Y.S.2d 650 (App. 1983).
City could be liable for failure to have policy
regarding seizure of property Odal Typographers, Inc v. City of New York, 560
F.Supp. 558 (S.D.NY 1983).
Police officers illegally seized child from unwed
father Dennison v. Vietch, 560 F.Supp. 435 (D. Minn. 1983).
No warrant needed to enter onto premises to
inform owners of citizen complaints; no liability for not removing media from
premises Avenson v. Zegart, 577 F.Supp. 958 (D. Minn. 1984).
Sheriff acted properly by not forcing entry into
house to execute writ for repossession of property Red House Furniture Co v.
Smith, 306 S.E.2d 130 (N.C. App. 1983). and 313 S.E.2d 569 (N.C. 1984).
Officer could be individually liable for entering
house without warrant Rollins By Agosta v. Farmer, 731 F.2d 533 (8th Cir.
1984).
Warrantless entry to seize doctor's drugs
available to children justified Mann v. Cannon, 731 F.2d 54 (1st Cir. 1984).
Police must return slot machines to owners Bale
v. San Jose Police Dept, 204 Cal.Rptr. 514 (App. 1984).
Sheriff not entitled to commission for levying on
wrong property Petition of Associated Food Stores, Inc, 477 N.Y.S.2d 80 (Nassau
County 1984).
Federal jurisdiction granted since claims
commission has no jurisdiction over counties and municipalities Bumbarner v.
Bloodworth, 738 F.2d, 966 (8th Cir. 1984).
City liable for policy of forced entry to arrest
traffic violators who sped home King v. City of Ft Wayne, Ind, 590 F.Supp. 414
(N.D.Ind 1984).
Car registration linked to address insufficient
reason to enter home without a warrant to search for robber Llaguno v. Mingey,
739 F.2d 1186 (7th Cir. 1984).
Eyewitness informant served as probable cause to
obtain warrant, despite that no contraband was found Turngren v. King County,
Dept of Pub Saf, 686 P.2d, 1110 (Wash App1984).
Search following informant's information upheld
by jury Carter v. Jacobsen, 748 F.2d 487 (8th Cir. 1984).
U.S. Supreme Court refuses to review case against
police for seizing stolen property at pawnshop; pawnshop has property interest
in stolen items Williams v. Wolfenbarger, 774 F.2d 358 (10th Cir. 1985).
Tannery v. Wolfenbarger, 774 F.2d 358 (10th Cir. 1985).
Just because a police manual didn't contain rules
on searches doesn't infer policy/custom of illegal activity Caiani v. Town of
Walpole, 624 F.Supp. 311 (D.Mass 1985).
City accused of using armored machines to ram
houses to gain access Langford v. Gates, 610 F.Supp. 120 (DC Cal 1985).
Search valid despite wrong address on warrant
Lyons v. Robinson, 783 F.2d 737 (8th Cir. 1985).
Failure to obtain correct address was
discretionary Schulte v. City of Dodge City, Kan, 630 F.Supp. 327 (D. Kan
1986).
Ten-hour siege subjects city, city council
members, and police chief to civil rights suit Sanders v. Kennedy, 794 F.2d 478
(9th Cir. 1986).
California Supreme Court rules on use of battery
rams and "flashbangs"; rams need magistrate approval, but "flash
bangs" do not Langford v. Superior Court (Gates), 233 Cal.Rptr. 387 (Cal
1987).
Police aren't required to know for certain which
items are stolen before seizing them pursuant to warrant Perlman v. City of
Chicago, 801 F.2d 262 (7th Cir. 1986).
Juror's arrest while deliberations were in recess
and his failure to disclose he had relatives on the force not grounds for new
trial Olson v. Bradrick, 645 F.Supp. (D. Conn 1986).
Entry into apartment, search and arrest of tenant
was not illegal when sub-tenant consented to police entry Charles v. Odum, 664
F.Supp. 747 (S.D.N.Y. 1987).
Officers did not have qualified immunity for
search of pawnshop without warrant or exigent circumstances Wolfenbarger v.
Williams, 826 F.2d 930 (10th Cir. 1987).
FBI agents could not be held liable for search by
other officers participating in same overall investigation Ghandi v. Police
Dept of City of Detroit, 823 F.2d 959 (6th Cir. 1987).
Failure of individual to appeal probable cause
determination authorizing administrative search did not preclude filing civil
rights lawsuit over search for unvaccinated dogs Cahill v. Montgomery County,
528 A.2d 527 (Md App. 1987).
$235,000 awarded for officers' search of home and
office using repossession order Sprecht v. Jensen, 832 F.2d 1516 (10th Cir.
1987).
Homeowner consented to warrantless search by
stepping aside and failing to object to entry. Johnson v. Smith County, Tex,
834 F.2d 479 (5th Cir. 1987).
Homosexual and bisexual men who frequented gay
bar can bring class action lawsuit over police raid Patrykus v. Gomilla, 121
F.R.D. 357 (N.D.Ill. 1988).
See also: Attorney's Fees:
For Defendants, Defenses: Collateral Estoppel, False Arrest/Imprisonment: Improper Detention, Governmental Liability: Sheriffs/Constables, Negligence: Property of Others, Privacy,
Search and Seizure: Person.