Montanez v. Sharoh , 444 F. App'x 484 ( 2011 )

10-1336-cv
Montanez v. Sharoh
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 9th day of November, two thousand eleven.
5
6 PRESENT: JOHN M. WALKER, JR.,
7 ROBERT A. KATZMANN,
8 RICHARD C. WESLEY,
9 Circuit Judges.
10
11
12
13 JOSEPH M. MONTANEZ,
14
15 Plaintiff-Appellee,
16
17 -v.- 10-1336-cv
18
19 DANIEL SHAROH, Police Officer,
20 MICHAEL MCCORMACK, Police Officer,
21
22 Defendants-Appellants,
23
24 CITY OF MILFORD, KEITH L. MELLO,
25 Police Chief, MACHARELLI, Police Officer,
26 KIELY, Police Officer,
27
28 Defendants.
29
30
31 FOR DEFENDANTS-APPELLANTS: JAMES N. TALLBERG (Kerry L.
32 Keeney Curtin, on the brief),
33 Karsten, Dorman & Tallberg, LLC,
34 Hartford, CT.
1 FOR PLAINTIFF-APPELLEE: DAVID F. ABERNETHY, Drinker
2 Biddle & Reath LLP,
3 Philadelphia, PA.
4
5 FOR AMICUS CURIAE AMERICAN
6 CIVIL LIBERTIES UNION OF
7 CONNECTICUT: SANDRA J. STAUB (David J.
8 McGuire, on the brief), American
9 Civil Liberties Union of
10 Connecticut, Hartford, CT.
11
12 Appeal from the United States District Court for the
13 District of Connecticut (Arterton, J.).
14
15 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
16 AND DECREED that the Memorandum and Order of the district
17 court be REVERSED and REMANDED to the district court to
18 enter judgment to the Appellants dismissing the complaint.
19 Defendants-Appellants, Officer Daniel Sharoh and
20 Officer Michael McCormack of the Milford, Connecticut Police
21 Department, appeal from an Order of the United States
22 District Court for the District of Connecticut (Arterton,
23 J.). The district court, inter alia, denied Appellants’
24 motion for summary judgment asserting a qualified immunity
25 defense and granted summary judgment sua sponte in favor of
26 Plaintiff-Appellee Joseph Montanez on the issue of
27 liability.
28 Montanez brings this lawsuit pursuant to 42 U.S.C.
29 § 1983 arising from Appellants’ warrantless entry and search
30 of his home during an attempted “child welfare check” by the
2
1 Connecticut Department of Children and Families (“DCF”). We
2 assume the parties’ familiarity with the underlying facts,
3 the procedural history, and the issues presented for review.
4 We have jurisdiction to review the district court’s
5 denial of qualified immunity to the extent that the appeal
6 “is based on either the undisputed facts or the version of
7 the facts presented by [Montanez].” Cowan ex rel. Estate of
8 Cooper v. Breen, 352 F.3d 756, 761 (2d Cir. 2003). We
9 review de novo a district court’s decision to deny summary
10 judgment on the basis of qualified immunity. Faghri v.
11 Univ. of Conn., 621 F.3d 92, 96 (2d Cir. 2010). “Summary
12 judgment is proper only when, construing the evidence in the
13 light most favorable to the non-movant, ‘there is no genuine
14 dispute as to any material fact and the movant is entitled
15 to judgment as a matter of law.’” Doninger v. Niehoff, 642
16 F.3d 334, 344 (2d Cir. 2011) (quoting Fed. R. Civ. P.
17 56(a)).
18 A qualified immunity determination involves a two-part
19 inquiry. See Amore v. Novarro, 624 F.3d 522, 530 (2d Cir.
20 2010). First, we ask whether “the facts, viewed in the
21 light most favorable to the plaintiff, show that the
22 officer’s conduct violated a constitutional right.” Walczyk
23 v. Rio, 496 F.3d 139, 154 (2d Cir. 2007). Second, we must
3
1 decide “whether the right at issue was ‘clearly established’
2 at the time of defendant’s alleged misconduct.” Pearson v.
3 Callahan, 555 U.S. 223, 232 (2009). “If the conduct did not
4 violate a clearly established constitutional right, or if it
5 was objectively reasonable for the officer to believe that
6 his conduct did not violate such a right, then the officer
7 is protected by qualified immunity.” Gilles v. Repicky, 511
8 F.3d 239, 244 (2d Cir. 2007). We may exercise our
9 discretion in deciding which inquiry should be addressed
10 first. Pearson, 555 U.S. at 236.
11 Appellants’ warrantless entry did not violate
12 Montanez’s Fourth Amendment rights. The Fourth Amendment
13 protects “[t]he right of the people to be secure in their
14 persons, houses, papers, and effects, against unreasonable
15 searches and seizures.” U.S. Const. amend. IV. The
16 “physical entry of the home is the chief evil against which
17 the wording of the Fourth Amendment is directed.” Payton v.
18 New York, 445 U.S. 573, 585 (1980) (internal quotation marks
19 omitted). Thus, “[i]t is a ‘basic principle of Fourth
20 Amendment law’ that searches and seizures inside a home
21 without a warrant are presumptively unreasonable.” Id. at
22 586.
23 “Nevertheless, because the ultimate touchstone of the
4
1 Fourth Amendment is ‘reasonableness,’ the warrant
2 requirement is subject to certain exceptions.” Brigham City
3 v. Stuart, 547 U.S. 398, 403 (2006). One such exception is
4 that “[p]olice officers may enter a dwelling without a
5 warrant to render emergency aid and assistance to a person
6 whom they reasonably believe to be in distress and in need
7 of that assistance.” Tierney v. Davidson, 133 F.3d 189, 196
8 (2d Cir. 1998) (internal quotation marks and alteration
9 omitted). “Courts must apply an objective standard to
10 determine the reasonableness of the officer’s belief,” id.,11 taking into account “the circumstances then confronting the
12 officer, including the need for a prompt assessment of
13 sometimes ambiguous information concerning potentially
14 serious consequences,” id. at 197 (quoting 3 Wayne LaFave,
15 Search and Seizure § 6.6(a), at 391 (3d ed. 1996)).
16 Moreover, this Court uses six guides to aid in determining
17 whether exigent circumstances exist to justify a warrantless
18 entry:
19 (1) the gravity or violent nature of the offense
20 with which the suspect is to be charged; (2) whether
21 the suspect is reasonably believed to be armed; (3)
22 a clear showing of probable cause . . . to believe
23 that the suspect committed the crime; (4) strong
24 reason to believe that the suspect is in the
25 premises being entered; (5) a likelihood that the
26 suspect will escape if not swiftly apprehended; and
27 (6) the peaceful circumstances of the entry.
5
1 United States v. Fields, 113 F.3d 313, 323 (2d Cir. 1997)
2 (quoting United States v. MacDonald, 916 F.2d 766, 769-70
3 (2d Cir. 1990) (en banc)).
4 The objective circumstances at the time of Appellants’
5 entry could cause a reasonable officer to believe that there
6 were exigent circumstances requiring prompt entry. Although
7 the factors above do not squarely apply to the case at hand,
8 they are “intended not as an exhaustive canon, but as an
9 illustrative sampling of the kinds of facts to be taken into
10 account.” MacDonald, 916 F.2d at 770.
11 Prior to entering the house, Appellants were informed
12 that Montanez was armed and dangerous and a convicted felon
13 wanted for weapons and narcotics violations. They were also
14 warned to use “extreme caution” if they located Montanez.
15 The district court dismissed the possibility that guns
16 or drugs remained a risk to Montanez’s children because the
17 police had already seized an Uzi firearm and drugs from the
18 home less than 24 hours earlier. This was error. In
19 addition to the Uzi 9mm firearm, the police had seized an
20 empty holster and boxes of .22 and .38 caliber ammunition,
21 but the police did not find a weapon that could fit the
22 holster or that could fire the ammunition. Indeed, the
23 officers were explicitly warned by an All-Points Bulletin
6
1 that Montanez was believed to be armed and dangerous.
2 Moreover, Officer Sharoh knew there was a documented
3 history of DCF involvement with Montanez’s seven-year-old
4 step-daughter, which included substantiated complaints.1
5 Officer Sharoh also knew that based on the earlier search,
6 which resulted in the seizure of guns and drugs that were
7 easily accessible to children, DCF wanted to remove the
8 child due to concerns about her health, welfare, and safety.
9 Montanez argues that the record shows that Appellants
10 had no reason to believe that there was any person inside
11 the home. We disagree. At the time of entry, Montanez
12 remained a fugitive despite his promise to the police that
13 he would return to his home. Moreover, the fact that the
14 lights were on at 1:00 a.m., that a side door was unlocked,
15 and that no one responded to knocks at the door or a phone
16 call does not rule out the reasonable possibility that
17 someone was inside the home. Although the seven-year-old
1
Montanez argues that the substantiated complaints
were not connected to either Montanez or the girl’s mother,
but rather other relatives who did not reside in the house.
That is irrelevant because we look to the circumstances
confronting the officers at the time they entered the home
in determining whether their entry was justified by exigent
circumstances. At the time of entry, Officer Sharoh knew
“that there had been a history of DCF involvement with the
occupants of that residence, including Mr. Montanez.” App.
at 163.
7
1 was reported to be at her grandmother’s house when the
2 police executed the search warrant, there is no evidence
3 that Appellants had any reason to believe that the girl
4 would still be at her grandmother’s house when they entered
5 the home approximately eight hours later. It was
6 objectively reasonable for Appellants to believe that
7 Montanez may have been at the residence and that he posed a
8 threat to not only the child, but also to the DCF worker
9 attempting to conduct a welfare check.
10 Finally, the officers entered through an unlocked door,
11 did not cause any property damage or seize anything, and
12 left after five to seven minutes once they confirmed that no
13 one was present. The undisputed facts here clearly indicate
14 that Appellants’ entry was justified by exigent
15 circumstances. Because Appellants did not violate
16 Montanez’s Fourth Amendment rights, the second part of the
17 qualified immunity inquiry is unnecessary. Appellants are
18 entitled to qualified immunity.
19 Because we have concluded that exigent circumstances
20 justified Appellants’ entry, it follows that the district
21 court erred in granting summary judgment sua sponte in favor
22 of Montanez on the issue of liability for his warrantless
23 entry claim. For the foregoing reasons, we REVERSE the
8
1 Memorandum and Order of the district court to the extent
2 that it denied Appellants’ motion for summary judgment and
3 granted summary judgment in favor of Montanez on the issue
4 of liability and REMAND to the district court to enter
5 judgment in favor of Appellants dismissing Montanez’s
6 complaint.
7
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
10
11
9