Bonner v. Anderson , 81 F.3d 472 ( 1996 )

Dismissed by published opinion. Senior Judge BUTZNER wrote the majority opinion, in which Judge HALL joined. Chief Judge WILKINSON wrote a dissenting opinion.

OPINION

BUTZNER, Senior Circuit Judge:

Claiming qualified immunity, D.R. Anderson, a deputy sheriff in Caroline County, Virginia, appeals the district court’s interlocutory order that denied his motion for summary judgment. Because the pretrial record discloses a genuine issue of material fact, Anderson may not appeal. See Johnson v. Jones, — U.S. -, -, 115 S.Ct. 2151, 2159, 132 L.Ed.2d 238 (1995).

I

Anderson obtained a warrant to search Helen Meale/s residence for “Drugs, U.S. Currency or Drug Paraphernalia.” Anderson noted as the probable cause for the search: “A confidential reliable informa[n]t was in the residence and saw crack cocaine and a large amount of money in the past 72 hours.” Healey’s residence had a reputation as a “crack house.” Prior police raids revealed a setting in which drug trading was common and guns were sometimes present. Anderson had been there five or six times with search warrants. Although the deputies had never been attacked, a man had been shot on the premises some time in the past. The sheriffs department had received calls about shootings and reports of drive-by shootings at the house. Also, the police were informed that a gang that allegedly frequented the house had threatened the police.

Soon after midnight, three or four police cars, carrying six officers, stopped in front of Healey’s house. Anderson testified that as the officers were getting out of their cars, he saw the front door open approximately one foot and then “shut back real quick.”

The officers ran across the yard, with Anderson leading the way. Anderson testified that he yelled: “Police, search warrant” as he jumped onto the porch, and another officer testified that the entire raid team yelled: “Police, search warrant.” Anderson hit the front door, pushing it open with his shoulder. Just before forcing the door, he saw a face through a window in the door. Anderson testified that he did not have time to stop. The door hit Joyce Bonner, a visitor, who suffered facial injuries.

The officers searched the residence. They found mostly drug paraphernalia, such as pipes and razor blades, and one plastic bag that may have contained drugs. They did not find any guns or other weapons, but they arrested an unarmed man who was outside the house.

Members of the Caroline County Police Department, upon arriving at a premises to be searched, strictly followed a “knock and announce” policy. As Anderson stated: “[W]e always knocked, and we always announced, ‘Police, search warrant.’ That’s standard procedure.” Anderson was corroborated by Deputy Frank Cecil: “Normal procedure is to knock and announce,” and Captain Stanley Beger, Jr.: “The policy at the Sheriffs Office ... is that you knock and you announce_” Although the Caroline County Sheriffs Department had searched the Mealey residence on prior occasions, this search was the only one not preceded by a knock and announcement. Anderson testified about the exigency that to him justified entry without pausing to knock. His testimony was explicit:

Q Why did no one knock at the door?

A Because when we pulled up and got out of the vehicles, the front door came open, and it opened about that far (indicating with hands) and it shut back real quick.

Other officers corroborated him. Anderson testified that after he saw the door open and shut, he believed that the occupants had become aware of the raid. This alerted him to the possibility of danger to the officers or of concealment of evidence, for he knew that on previous occasions officers had found guns and drugs on the premises, and he was familiar with the occupants’ reputation for violence. He also knew that on one raid the occupants had attempted to destroy the evidence of drugs.

Bonner contradicted Anderson. She claimed that nobody opened the door. Her testimony was also explicit:

Q Did you open the door?

A No.

Q Did you ever open the door?

A No.

Q Did anybody else who was there with you open the door?

A No.

She also testified that she did not hear the officers shout “Police, search warrant.”

The district court denied Anderson’s motion for summary judgment, saying the issue of qualified immunity “will resolve at trial.”

II

Anderson contends that Bonner lacks standing to sue under 42 U.S.C. § 1988. This statute permits suit by a citizen who has been deprived of a right secured by the Constitution by a person acting under color of state law. Bonner seeks to vindicate her Fourth Amendment right to be free from searches conducted without knock and announcement.

The knock and announcement requirement is an element of the Fourth Amendment reasonableness inquiry. Wilson v. Arkansas, — U.S. -, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995). “The requirement of prior notice of authority and purpose before forcing entry into a home is deeply rooted in our heritage and should not be given grudging application.” Miller v. United States, 357 U.S. 301, 313, 78 S.Ct. 1190, 1198, 2 L.Ed.2d 1332 (1958). The rule is designed to satisfy three purposes: (1) protecting the safety of occupants of a dwelling and the police by reducing violence; (2) preventing the destruction of property; and (3) protecting the privacy of occupants. See, e.g., United States v. Zermeno, 66 F.3d 1058, 1062 (9th Cir.1995) (discussing federal knock and announce statute, 18 U.S.C. § 3109); Hall v. Lopez, 823 F.Supp. 857, 864 (D.Colo.1993). The first and third of these goals pertain to Bonner’s claim.

Fourth Amendment rights are personal. Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966-67, 22 L.Ed.2d 176 (1969). Consequently, Bonner cannot prevail on the basis of her host’s possessory rights in the Mealey residence. Drawing upon Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576 (1967), the Court has explained that the “capacity to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.” Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978). A subjective “expectation of privacy” is legitimate if “society is prepared to recognize [it] as ‘reasonable.’ ” Katz, 389 U.S. at 361, 88 S.Ct. at 516 (Harlan, J., concurring). It follows that “arcane distinctions developed in property and tort law between guests, licensees, invitees, and the like, ought not to control.” Rakas, 439 U.S. at 143, 99 S.Ct. at 430.

The Court applied these principles in Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990), in which it held that an overnight guest had a legitimate expectation of privacy in his host’s residence. While the guest’s extended visit was a factor in the Court’s decision, the overnight aspect of the visit was used to illustrate the legitimacy of the guest’s expectation of privacy that “was rooted in ‘understandings that are recognized and permitted by society.’” It was for this reason that the guest could “claim the protection of the Fourth Amendment.” Olson, 495 U.S. at 100, 110 S.Ct. at 1690 (citation omitted).

Bonner was not an overnight guest. Nevertheless, the principles that guided Olson are applicable to her. Bonner was a frequent visitor at the Mealey residence. Her half-sister had been raised there, and she previously lived in a neighboring building on the property. She often ran errands for Ms. Mealey, whom everyone called “Grandma,” and she was in the house for this purpose when she was injured. We believe that Bonner’s activities — visiting a neighbor and assisting the elderly — establish an expectation of privacy that is “recognized and permitted by society.” Olson, 495 U.S. at 100, 110 S.Ct. at 1690. Bonner’s situation differs from that of defendants, chronicled in the cases on which Anderson relies, who are unable to suppress evidence because they have no legitimate expectation of privacy in the place searched or any interest in the items seized.

For many actions involving governmental misconduct, a suit for damages “may offer the only realistic avenue for vindication of constitutional guarantees.” Harlow v. Fitzgerald, 457 U.S. 800, 814, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396 (1982). We conclude that Bonner should be afforded the opportunity to vindicate the constitutional guarantees of the Fourth Amendment.

Ill

Government officials who perform discretionary functions are entitled to qualified immunity from suit. They are shielded from civil liability to the extent that their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. Generally, courts of appeals have jurisdiction over interlocutory appeals from denials of summary judgment on the basis of qualified immunity. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817-18, 86 L.Ed.2d 411 (1985). Yet this jurisdiction extends only to legal, not factual, issues. Johnson v. Jones, — U.S. -, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). To the extent that an interlocutory summary judgment determines factual issues, such as whether a pretrial record discloses a genuine issue of fact for trial, the summary judgment is not appealable. Johnson, — U.S. at -, 115 S.Ct. at 2159.

Application of the qualified immunity defense requires a court to answer two questions: (1) whether the constitutional right allegedly violated was clearly established, and (2) whether genuine issues of material fact exist regarding the officer’s conduct. Johnson, — U.S. -, 115 S.Ct. 2151. The first inquiry presents a purely legal issue; the second calls for factual determinations. The constitutional right in question is to be defined narrowly, so that enforcement officials have advance notice as to what constitutes proper activity. See Anderson v. Creighton, 488 U.S. 635, 639-40, 107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523 (1987).

A Fourth Amendment reasonableness standard governs the lawfulness of an entry by state officers executing a search warrant. One element of this standard, the “knock and announce” rule, requires police, absent exigent circumstances, to knock and announce their presence before entering premises to be searched. Wilson v. Arkansas, — U.S. -, -, 115 S.Ct. 1914, 1919, 131 L.Ed.2d 976 (1995).

The knock and announce rule has a long heritage, dating back to the English common and statutory law of 1275. See Wilson, — U.S. at - n. 2, 115 S.Ct. at 1917 n. 2. The principle was “woven quickly into the fabric of early American law,” id. at -, 115 S.Ct. at 1917, and satisfies the test of being a clearly established right. Of particular relevance to this case, the Caroline County Sheriff’s Department uniformly followed a knock and announce policy. Anderson does not suggest that the “knock and announce” element of the reasonableness of a search is not clearly established. Instead, he relies on exigent circumstances. In the context of this case, this includes the opening of the door, which Anderson believed might increase the possibility of danger to the officers or of concealment of evidence.

The difficulty with Anderson’s position at this stage of the proceedings pertains to the second element of qualified immunity. The disputes centering on whether the police announced their presence and, more importantly, whether someone opened and quickly shut the door to the Mealey house are genuine issues of material fact. The contradictory testimony of the two principal participants raises the issues. From the sheriffs department’s uniform observance of the knock and announce standard and from Anderson’s testimony about the reason he did not knock, it is apparent that the issues are material. One is compelled to draw the reasonable inference that Anderson would not have forcefully entered the house without first complying with the knock and announce rule if the door had not been opened and shut before the entry. In accordance with the precept of Johnson, — U.S. at -, 115 S.Ct. at 2159, we dismiss Anderson’s appeal. The dismissal, of course, is without prejudice because — as the district court noted— Anderson can press his claim at trial. In that forum, the questions of credibility can be resolved and due consideration can be given to Anderson’s claim of exigent circumstances.

DISMISSED.