Flynn v. James , 513 F. App'x 37 ( 2013 )

12-663-cv
Flynn v. James
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
"SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
the 28th day of February, two thousand thirteen.
PRESENT: DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges,
JANE A. RESTANI,
Judge.*
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BRUCE FLYNN,
Plaintiff-Appellant,
-v.- 12-663-cv
DEBRA A. JAMES, GEORGE DYER,
Investigator, New York State Police
Department, MICHAEL MADORE, Investigator,
New York State Police Department, JOSHUA
FOWLER, New York State Trooper, MCCARTY,
New York State Trooper,
Defendants-Appellees.
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FOR PLAINTIFF-APPELLANT: Bruce Flynn, pro se, Marcy, New
York.
FOR DEFENDANTS-APPELLEES Kate H. Nepveu, Denise A. Hartman,
GEORGE DYER, MICHAEL MADORE, Assistant Solicitors General for
JOSHUA FOWLER, AND MCCARTY: Barbara D. Underwood, Solicitor
General, and Eric T. Schneiderman,
Attorney General of the State of
New York, Albany, New York.
*
The Honorable Jane A. Restani, of the United States
Court of International Trade, sitting by designation.
Appeal from the United States District Court for the
Northern District of New York (McAvoy, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-appellant Bruce Flynn, proceeding pro se,
appeals from the district court's judgment entered January 24,
2012 dismissing his complaint in accordance with its Decision and
Order entered the same day. Flynn asserted a claim under 42
U.S.C. § 1983 against defendants-appellees Debra A. James, George
Dyer, Michael Madore, Joshua Fowler, and McCarty for purportedly
violating his rights under the Fourth, Fifth, and Fourteenth
Amendments. Compl. at 1, Flynn v. James, No. 8:11 Civ. 1036
(N.D.N.Y. Aug. 31, 2011), ECF No. 1. This civil action was filed
below after Flynn pled guilty in state court to burglary in the
second degree, in violation of N.Y. Penal Law § 140.25(1)(d), and
criminal use of a firearm in the second degree, in violation of
N.Y. Penal Law § 265.08(2), for which crimes Flynn was sentenced
principally to two concurrent terms of ten years' imprisonment.
On appeal, Flynn principally argues that Dyer and
Madore, investigators with the New York State Police Department
(the "Investigators"), illegally searched his home and seized his
property after Madore obtained an invalid consent to search from
Flynn.1 We assume the parties' familiarity with the underlying
1
Flynn had also argued below that Fowler and McCarty
executed an unlawful warrantless arrest in violation of his
rights under the Fourth Amendment. The district court dismissed,
finding that the arresting officers had probable cause. Flynn
does not challenge this ruling on appeal.
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facts, the procedural history of the case, and the issues on
appeal.
We review de novo a district court's grant of a motion
to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure, accepting all factual allegations as true, and
drawing all reasonable inferences in the plaintiff's favor. See
Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d
Cir. 2010). While pro se complaints must contain sufficient
factual allegations to meet the plausibility standard, this Court
construes them to raise the "strongest [claims] that they
suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
474-75 (2d Cir. 2006) (per curiam) (internal quotation marks and
citation omitted).
To state a claim under § 1983, Flynn was required to
plausibly allege that "(1) the challenged conduct was
attributable at least in part to a person who was acting under
color of state law and (2) the conduct deprived the plaintiff of
a right guaranteed under the Constitution of the United States."
Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999).
Under the Fourth and Fourteenth Amendments, a
warrantless search of a home is unreasonable unless an exception
applies, such as a search conducted pursuant to consent. See
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); United
States v. Garcia, 56 F.3d 418, 422 (2d Cir. 1995). The consent
must be voluntary, and voluntariness is determined by the
totality of the circumstances. See United States v. Snype, 441
F.3d 119, 131 (2d Cir. 2006). "'The standard for measuring the
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scope of a suspect's consent under the Fourth Amendment is that
of 'objective' reasonableness . . . .'" Garcia, 56 F.3d at 423(quoting Florida v. Jimeno, 500 U.S. 248, 251 (1991)).
Although Flynn consented to a search of his home, he
challenges the validity of the consent on the basis that it was
executed after he invoked his right to counsel. Flynn's
invocation of his right to counsel, however, has no bearing on
the validity of his consent because a request for consent to
search is not an interrogation within the meaning of Miranda v.
Arizona, 384 U.S. 436 (1966). See United States v. Faruolo, 506
F.2d 490, 495 (2d Cir. 1974). A defendant's "consent to search
is not 'evidence of a testimonial or communicative nature'" and
therefore it does not implicate the right to counsel. Id.(quoting Schmerber v. California, 384 U.S. 757, 761 (1966)).
Flynn next contends that his Fifth Amendment right
against self incrimination was violated because the cassette tape
obtained during the search of his home contained incriminating
statements. That argument must be rejected, as the Fifth
Amendment only proscribes "extract[ing] from the person's own
lips an admission of guilt, which would thus take the place of
other evidence." United States v. Patane, 542 U.S. 630, 637
(2004) (internal quotation marks, citation, and emphasis in
original omitted). Here, the cassette had been voluntarily
prepared by Flynn before the involvement of any police officers,
and thus it "could not 'be said to contain compelled testimonial
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evidence.'" United States v. Greer, 631 F.3d 608, 613 (2d Cir.
2011) (quoting Fisher v. United States, 425 U.S. 391, 409-10
(1976)).
Flynn also argues that the Investigators exceeded the
scope of his consent, i.e., that they searched his entire home
when he gave consent only as to his "[d]iabetic medication and
test kit and black long rifle . . . ." The consent Flynn
executed, however, provides: "I grant permission for the State
Police to search the entire premises, including the contents of
any containers or boxes found thereon." Because we employ an
objective standard for measuring the scope of a defendant's
consent, we conclude that the Investigators did not exceed the
scope of Flynn's consent in searching his entire home.
Flynn argues for the first time on appeal that his
consent was coerced and that he consented only because the
Investigators agreed to retrieve his diabetic medicine from his
home while conducting the search. Flynn did not make this
allegation in his complaint, nor did he argue this issue in the
proceedings below. See generally Pl.'s Opp'n to Defs.' Mot. to
Dismiss, Flynn v. James, No. 8:11 Civ. 1036 (N.D.N.Y. Nov. 16,
2011), ECF No. 12. Arguments raised for the first time on appeal
are deemed waived. See Baker v. Dorfman, 239 F.3d 415, 423 (2d
Cir. 2000). Accordingly, we decline to consider Flynn's belated
argument that his consent was coerced.
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Flynn similarly argues for the first time on appeal
that the district court erred in dismissing his complaint without
granting him leave to amend. Flynn did not seek leave to amend
below. Thus, we decline to consider Flynn's argument in this
regard.
We have considered all of Flynn's remaining arguments
and conclude they are without merit. Accordingly, the judgment
of the district court is AFFIRMED.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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