Joseph Pilchesky v. Maggie Barone, et al

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: SHWARTZ, KRAUSE and FISHER, Circuit Judges. Total Pages: 6.

Case: 17-2916

Document: 003112901372

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Date Filed: 04/12/2018

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-2916
___________
JOSEPH W. PILCHESKY,
Appellant
v.
MAGGIE BARONE, Deputy U.S. Marshal;
JOSEPH BROZOWSKI, Deputy U.S. Marshal;
ROBERT LENAHAN, Deputy U.S. Marshal
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 3-14-cv-00381)
District Judge: Honorable Malachy E. Mannion
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 27, 2018
Before: SHWARTZ, KRAUSE and FISHER, Circuit Judges
(Opinion filed: April 12, 2018)
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OPINION *
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PER CURIAM
Pro se appellant Joseph W. Pilchesky appeals from the District Court’s order
granting summary judgment in favor of the defendants, a group of Deputy United States

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not

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Marshals (“Deputy Marshals”), who allegedly violated his Fourth Amendment right to be
free from unlawful search and seizure when they attempted to execute an arrest warrant at
his home. For the reasons discussed below, we will affirm.
On December 19, 2013, the Lackawanna County Court of Common Pleas issued
an arrest warrant to the Pennsylvania Office of Attorney General for the arrest of
Stephanie Tarapchak (“Dr. Tarapchak”), a doctor charged with several criminal offenses,
including drug delivery resulting in death. On December 30, 2013, the Pennsylvania
Office of Attorney General sought and received the assistance of the United States
Marshal’s Service in the Middle District of Pennsylvania in locating and apprehending
Dr. Tarapchak.
That same day, the Deputy Marshals assigned to execute the arrest warrant
discovered, through information received from the Pennsylvania Office of Attorney
General, as well as from Alex Tarapchak (“Mr. Tarapchak”), the ex-husband of Dr.
Tarapchak, that Dr. Tarapchak was involved in a relationship with Pilchesky and that she
resided with him at his home on Sunset Street in Scranton, PA (the “Sunset Street
Residence”) at least fifty percent of the time. Mr. Tarapchak also indicated that he had
recently spoken to his and Dr. Tarapchak’s older daughter and that she told him that she
and her mother would be at the Sunset Street Residence that day. In addition, neighbors
told the Deputy Marshals that Dr. Tarapchak and her daughter had arrived together at the
Sunset Street Residence early that morning.

constitute binding precedent.

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The Deputy Marshals then arrived at the Sunset Street Residence to execute the
warrant for the arrest of Dr. Tarapchak. Although they received no response when they
knocked on the door, they observed that the lights were on and heard movement inside
the house. The Tarapchaks’ older daughter eventually opened the rear door, but she did
not let the Deputy Marshals in the house. The Deputy Marshals returned to the front of
the house, where they encountered the Tarapchaks’ younger daughter and her father, Mr.
Tarapchak, who had arrived at the house after the Deputy Marshals. The younger
daughter told the Deputy Marshals that her sister “would not give [their mother] up.” But
the older sister, after she spoke with her father and the Deputy Marshals, opened the rear
door and allowed the Deputy Marshals into the home to execute the warrant. The Deputy
Marshals then searched the home for twenty minutes and left without finding or arresting
Dr. Tarapchak.
In March 2015, Pilchesky filed his initial complaint in the District Court. He
brought, as relevant here, a claim under Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging that the Deputy Marshals
violated his Fourth Amendment right to be free from unreasonable search and seizure
when they entered his home without a search warrant. 1 The parties filed cross-motions
for summary judgment. The District Court denied Pilchesky’s motion and granted the

1

Pilchesky raised an equal protection claim that the District Court dismissed in an order
dated March 22, 2016. He has not challenged this order on appeal, and we therefore will
not review it. See United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005).
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Deputy Marshals’, concluding, inter alia, that they had lawfully entered the Sunset Street
Residence.
We have jurisdiction under 28 U.S.C. § 1291. We exercise a plenary standard of
review, and apply the same standard as the District Court to determine whether summary
judgment was appropriate. State Auto Prop. & Cas. Ins. Co. v. Pro Design, P.C., 566
F.3d 86, 89 (3d Cir. 2009).
It is well-settled that “an arrest warrant founded on probable cause implicitly
carries with it the limited authority to enter a dwelling in which the suspect lives when
there is reason to believe the suspect is within.” Payton v. New York, 445 U.S. 573, 603
(1980). In order to “assess the constitutionality of an officer’s entry into a home to
execute an arrest warrant,” we employ “a two-prong test that extends to residency: the
officer must have a ‘reasonable belief’ that (1) the arrestee resides at the dwelling, and (2)
the arrestee is present at the time of the entry.” United States v. Vasquez-Algarin, 821
F.3d 467, 473 (3d Cir. 2016) (quoting United States v. Veal, 453 F.3d 164, 167 (3d Cir.
2006)). We recently “defined the reasonable belief standard as equivalent to probable
cause.” Id. at 480. In order “to make a probable cause determination, we must consider
the ‘totality of the circumstances,’ which, in the context of second-hand information,
encompasses considerations such as the basis and reliability of the information and the
receiving officer’s ability to corroborate its content.” Id. (citations omitted).
Based on the totality of the circumstances, the defendants had probable cause to
believe that on December 30, 2013, Dr. Tarapchak both resided with Pilchesky at the
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Sunset Street Residence and was actually in the home when they attempted to apprehend
her pursuant to the arrest warrant. As to the issue of residence, the Deputy Marshals –
like the law enforcement agent in Vasquez-Algarin, who lacked probable cause to believe
that the subject of the arrest warrant resided in the house that he entered – also relied
upon unspecified information from a different law enforcement agency. But unlike the
law enforcement officer in Vasquez-Algarin – who additionally relied upon non-specific
information from unnamed confidential informants – the Deputy Marshals here relied on
information from Mr. Tarapchak who, as Dr. Tarapchak’s former husband and the father
of her minor children, would have reason to know where she lived. Accordingly, under
the circumstances present here, we conclude that the Deputy Marshals had probable
cause to believe that Dr. Tarapchak resided at the Sunset Street Residence.
The Deputy Marshals also had probable cause to believe that Dr. Tarapchak was
present at the Sunset Street Residence when they entered it. Relevant here, Mr.
Tarapchak indicated that he had recently spoken to his and Dr. Tarapchak’s older
daughter and that she told him that she and her mother would be at the Sunset Street
Residence that day. Moreover, neighbors told the Deputy Marshals that the Tarapchaks’
older daughter and Dr. Tarapchak had arrived at the Sunset Street residence early that
morning. And when the Deputy Marshals arrived at the Sunset Street Residence, there
were noises coming from inside the house, and the younger daughter subsequently told
them that the older daughter “would not give [their mother] up.”

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We therefore conclude that the information available to the defendants provided
probable cause to believe that Dr. Tarapchak resided in the home and was located inside
the residence on the day of the search. As the search of the Sunset Street Residence was
valid under the Fourth Amendment, we will affirm the District Court’s judgment.

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