Nathan Webb v. Lynne Brawn
Filing
UNPUBLISHED PER CURIAM OPINION filed.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. [999659200]. Mailed to: Nathan Webb. [15-6332]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6332
NATHAN WEBB, a/k/a Nathaniel R. Webb,
Plaintiff - Appellant,
v.
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)
Submitted:
August 27, 2015
Decided:
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Nathan Webb appeals the district court’s judgment granting
summary judgment to the Defendants on the basis of qualified
immunity
and
dismissing
Webb’s
civil
rights
pursuant to 42 U.S.C. § 1983 (2012).
Defendants
violated
his
Fourth
complaint
filed
Webb claimed that the
Amendment
protection
against
unreasonable search and seizure during a warrantless search of
his home.
We affirm.
We review the grant of summary judgment de novo.
Pender v.
Bank of Am. Corp., 788 F.3d 354, 361 (4th Cir. 2015).
All facts
and
reasonable
inferences
are
viewed
favorable to the non-moving party.”
“in
the
light
most
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
of law.”
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).
Qualified
performing
conduct
immunity
discretionary
does
not
protects
functions
violate
clearly
“government
.
officials
.
as
.
insofar
established
their
statutory
or
constitutional rights of which a reasonable person would have
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known.”
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Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
To be
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
rests
on
the
official
asserting
that
defense.”
Meyers
v.
Baltimore Cty., 713 F.3d 723, 731 (4th Cir. 2013).
The Fourth Amendment prohibits warrantless home searches in
most instances.
(1973).
Schneckloth v. Bustamonte, 412 U.S. 218, 219
Voluntary consent to a search is an exception to the
warrant requirement.
Id.
A warrantless search of a home may be
proper if law enforcement receives voluntary consent from “an
occupant
who
shares,
or
is
reasonably
believed
to
share,
authority over the area in common with a co-occupant who later
objects.”
Georgia
v.
Randolph,
547
U.S.
103,
106
(2006)
(holding that a present co-occupant’s refusal to consent to a
search
prevails
search).
over
a
present
co-occupant’s
consent
to
the
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.
As
the
Fourth
Amendment
guards
against
unreasonable
searches, there is no violation if an officer could reasonably
have
believed
consent.
that
the
consenting
party
had
authority
to
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
exists.”
United States v. Buckner, 473 F.3d 551, 555 (4th Cir.
2007) (internal quotation marks and alterations omitted).
Upon
our
review
of
the
record,
we
conclude
that
Webb’s
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.
Upchurch
Upchurch kept
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
abusive incident.
See United States v. Backus, 349 F.3d 1298,
1304 (11th Cir. 2003) (holding wife had authority to consent to
search
after
husband’s
criminal
acts
against
wife
and
child
forced them to leave); see also United States v. Brannan, 898
F.2d
107,
108
(9th
Cir.
1990)
(holding
co-owner
of
house
retained actual authority to consent to search even though she
moved out due to husband’s abuse and husband had changed locks).
Thus,
Upchurch’s
consent
to
search
the
home
prevailed
over
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
requests
from
law
enforcement
that
he
come
to
the
house.
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
search.
Therefore, the district court did not err in ruling
that
Defendants
the
were
entitled
to
qualified
immunity
and
Accordingly, we affirm the district court’s judgment.
We
granting summary judgment on that basis.
deny Webb’s motion for appointment of counsel.
We dispense with
oral
contentions
argument
because
the
facts
5
and
legal
are
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adequately
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presented
in
the
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materials
before
this
court
and
argument would not aid the decisional process.
AFFIRMED
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