Nathan Webb v. Lynne Brawn
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to appoint counsel [999572401-2] Originating case number: 5:12-ct-03042-BO. Copies to all parties and the district court/agency. . Mailed to: Nathan Webb. [15-6332]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NATHAN WEBB, a/k/a Nathaniel R. Webb,
Plaintiff - Appellant,
LYNNE BRAWN; JAMES F. SMITH; MARK VAN HOUTEN,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Terrence W. Boyle,
District Judge. (5:12-ct-03042-BO)
August 27, 2015
September 14, 2015
Before MOTZ, KING, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Nathan Webb, Appellant Pro Se.
John Thomas Crook, BAILEY &
DIXON, Raleigh, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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Nathan Webb appeals the district court’s judgment granting
summary judgment to the Defendants on the basis of qualified
pursuant to 42 U.S.C. § 1983 (2012).
Webb claimed that the
unreasonable search and seizure during a warrantless search of
We review the grant of summary judgment de novo.
Bank of Am. Corp., 788 F.3d 354, 361 (4th Cir. 2015).
favorable to the non-moving party.”
Dulaney v. Packaging Corp.
of Am., 673 F.3d 323, 330 (4th Cir. 2012).
Summary judgment is
only appropriate when “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
Fed. R. Civ. P. 56(a).
“[T]he nonmoving party must
rely on more than conclusory allegations, mere speculation, the
building of one inference upon another, or the mere existence of
a scintilla of evidence.”
Dash v. Mayweather, 731 F.3d 303, 311
(4th Cir. 2013).
constitutional rights of which a reasonable person would have
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Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
entitled to qualified immunity, a defendant must show either
that his conduct did not violate the plaintiff’s constitutional
rights, or that even if there was a constitutional violation,
the right in question was not clearly established at the time
that the defendant acted.
Henry v. Purnell, 652 F.3d 524, 531
(4th Cir. 2011) (en banc); Ridpath v. Bd. of Governors Marshall
Univ., 447 F.3d 292, 306 (4th Cir. 2006).
“The burden of proof
and persuasion with respect to a defense of qualified immunity
Baltimore Cty., 713 F.3d 723, 731 (4th Cir. 2013).
The Fourth Amendment prohibits warrantless home searches in
Schneckloth v. Bustamonte, 412 U.S. 218, 219
Voluntary consent to a search is an exception to the
A warrantless search of a home may be
proper if law enforcement receives voluntary consent from “an
authority over the area in common with a co-occupant who later
(holding that a present co-occupant’s refusal to consent to a
Moreover, if consent to the search is given by a
person who is present and possesses common authority over the
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premises, it is valid against the absent, objecting occupant.
Fernandez v. California, 134 S. Ct. 1126, 1134-35 (2014).
Common authority rests on:
mutual use of the property by persons generally having
joint access or control for most purposes, so that it
is reasonable to recognize that any of the coinhabitants has the right to permit the inspection in
his own right and that the others have assumed the
risk that one of their number might permit the common
area to be searched.
U.S. v. Matlock, 415 U.S. 164, 171 n.7.
searches, there is no violation if an officer could reasonably
Illinois v. Rodriguez, 497 U.S. 177, 188-89 (1990).
“As long as the facts available to the officer at the moment
warrant a person of reasonable caution in the belief that the
consenting party had authority, apparent authority to consent
United States v. Buckner, 473 F.3d 551, 555 (4th Cir.
2007) (internal quotation marks and alterations omitted).
girlfriend, Heather Upchurch, had actual and apparent authority
to consent to the search of the house.
She and their infant
daughter lived in the house with Webb for six months.
had as much interest in the house as did Webb.
all of her belongings there.
The fact that she believed Webb
abused their daughter, as later proven at a criminal trial, and
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she could no longer stay at the house with Webb, did not result
in the surrender of her authority over the house days after an
See United States v. Backus, 349 F.3d 1298,
1304 (11th Cir. 2003) (holding wife had authority to consent to
forced them to leave); see also United States v. Brannan, 898
retained actual authority to consent to search even though she
moved out due to husband’s abuse and husband had changed locks).
Webb’s objections to the search, in light of the fact that she
was present at the house and Webb elected to be absent despite
Fernandez, 134 S. Ct. at 1135-36.
Even if Upchurch lacked actual authority to consent to the
search, she had apparent authority.
Under the totality of the
circumstances, we conclude, it was reasonable for the Defendants
to believe that Upchurch retained authority to consent to the
Therefore, the district court did not err in ruling
Accordingly, we affirm the district court’s judgment.
granting summary judgment on that basis.
deny Webb’s motion for appointment of counsel.
We dispense with
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argument would not aid the decisional process.
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