Barrera v. Krosky
Filing
45
MEMORANDUM AND ORDER granting 36 Motion for Summary Judgment; denying 38 Motion for Summary Judgment. Signed by District Judge Carlos Murguia on 6/17/2013.Mailed to pro se party 12-1376 by regular mail. (mm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
VERA BARRERA,
)
)
Plaintiff,
)
)
v.
)
)
GREGORY KROSKEY,
)
)
Defendant.
)
__________________________________________)
Case No. 12-1376-CM-GLR
MEMORANDUM AND ORDER
Plaintiff alleges that defendant, acting under color of state law, violated her Fourth Amendment
right to be free from unreasonable searches when defendant searched her apartment without a warrant.
Defendant moves for summary judgment, arguing that a constitutional violation did not occur because
plaintiff’s daughter consented to the search (Doc. 36). Plaintiff filed a cross-motion for summary
judgment (Doc. 40). For the following reasons, the court grants defendant’s motion for summary
judgment and denies plaintiff’s motion.
I.
Factual Background1
On June 2, 2012, defendant was investigating the theft of some tools. He was advised that
plaintiff’s adult daughter, Ana Ledesma, had been working in the area from which the tools were
missing. Defendant was taken to an apartment and told that it was Ms. Ledesma’s residence.
Ms. Ledesma came out of the apartment and spoke with defendant. Defendant explained why
he was contacting her, and Ms. Ledesma told him that she did not have the tools. Defendant asked
1
This factual background is based on the submitted facts that are properly supported and not disputed. Plaintiff failed
to properly controvert any of defendant’s statement of facts, so defendant’s facts are deemed admitted. See Fed. R.
Civ. P. 56(c), (e) (providing procedure for controverting facts and consequences for failing to properly support or
address a fact). The court is mindful of plaintiff’s pro se status and, therefore, liberally construes her pleadings. Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But this generous review stops short of excusing procedural flaws
or generating arguments on her behalf.
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whether she lived in the apartment, and she said she did. Defendant then asked whether he could look
around the apartment, and Ms. Ledesma told him to go on in. Defendant did not threaten Ms.
Ledesma, and she agrees that he was professional and appropriate in his conduct towards her.
Defendant did not have a warrant to search the apartment.
Ms. Ledesma followed defendant into the apartment. While in the apartment, defendant just
looked around and did not move or rearrange any of the belongings inside the apartment. As he
approached the back part of the apartment, defendant encountered plaintiff. Plaintiff told him to leave,
and he did.
Although Ms. Ledesma is not on the lease, she considered the apartment her home. She had
lived in the living room portion of the apartment for two or three months before defendant entered the
apartment in June 2012. Ms. Ledesma had a dresser and closet for her clothing and her personal
belongings in the apartment. She had a key to the apartment, received mail at the apartment, and was
paying some form of rent. Plaintiff never told Ms. Ledesma that she could not access any part of the
apartment. And plaintiff and Ms. Ledesma filed a federal complaint in another lawsuit in August 2012
alleging that plaintiff’s apartment was Ms. Ledesma’s residential address.
II.
Analysis
Plaintiff brings a claim under 42 U.S.C. § 1983, alleging that defendant, while acting under
color of law, violated her Fourth Amendment rights when he searched her apartment without a
warrant. Defendant moves for summary judgment, arguing that no reasonable jury could find a
constitutional violation because plaintiff’s daughter consented to the search. See Fed. R. Civ. P. 56(a)
(outlining the summary judgment standard); see West v. Atkins, 487 U.S. 42, 48 (1988) (explaining
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that a plaintiff asserting a claim under 42 U.S.C. § 1983 must establish a constitutional violation by a
person acting under color of state law).2
The Fourth Amendment prohibits unreasonable searches of a person’s home. A warrantless
search of an individual’s home is unreasonable unless the search falls within an exception. United
States v. Cos, 498 F.3d 1115, 1123 (10th Cir. 2007). One exception to the warrant requirement is a
consensual search. Id. at 1124.
Valid consent to search has two elements. United States v. Sanchez, 608 F.3d 685, 689 (10th
Cir. 2010). First, the consent must be obtained from the owner of the property or, in certain
circumstances, from a third party that possesses actual or apparent authority to consent to the search.
Id. Second, the consent must be “freely and voluntarily given.” Id.
Defendant argues that, based on the record evidence, no reasonable jury could find that Ms.
Ledesma lacked actual authority to consent to the search of the apartment. The court agrees. A third
party has actual authority to consent to the search of property when the third party has “mutual use of
the property by virtue of joint access.” United States v. Rith, 164 F.3d 1323, 1329 (10th Cir. 1999).
2
The briefing before the court does not address whether plaintiff or defendant has the burden of proving an exception to
the warrant requirement. The court’s own research indicates that the Tenth Circuit has not squarely addressed this
issue at the summary judgment stage outside of the qualified immunity context. Specifically, in Armijo ex rel. Armijo
Sanchez v. Peterson, 601 F.3d 1065 (10th Cir. 2010), the Tenth Circuit considered a summary judgment motion based
on qualified immunity. In that case, the court stated that the “officers bear the burden of establishing that the threats
posed exigent circumstances justifying the warrantless entry.” Id. at 1070. To support this statement, the court cited a
criminal case and provided little discussion of the issue.
In cases having a different procedural posture, the Tenth Circuit has suggested that the plaintiff has the burden of
showing that an exception does not apply. See, e.g., Reid v. Hamby, No. 95-7142, 1997 WL 537909, at *2 (10th Cir.
Sept. 2, 1997) (considering a challenge to the district court’s jury instruction and noting that a “warrantless search of a
residence gives rise to a presumption of unreasonableness” but “in a § 1983 civil rights suit where, as here, the
defendant has come forward with evidence that the plaintiff consented to the search, the burden falls upon the plaintiff
to prove that no consent was given, or that the consent given was involuntary”); see also Copar Pumice Co. v. Morris,
No. 07-0079, 2009 WL 2431981 (D.N.M. July 8, 2009) (discussing objection to jury instruction outlining the burden
of proof). This latter view is more consistent with the majority of other circuits. See, e.g., Der v. Connolly, 666 F.3d
1120, 1127–28 (8th Cir. 2012) (discussing issue in context of a jury instruction and how other circuits have resolved
the burden of proof). Regardless of the allocation of burden in this case, no reasonable jury could find for plaintiff on
the record evidence.
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Mutual use of the property by virtue of joint access is a fact-intensive inquiry. Id.; see also Cos, 498
F.3d at 1119 (outlining facts that suggest actual authority).
Here, the record establishes that Ms. Ledesma: (1) had a key to the apartment, (2) admitted she
lived there, (3) considered the apartment her home, (4) listed the apartment as her residential address
in a federal complaint filed in August 2012, (5) received mail at the apartment, (5) kept clothing and
personal belongings at the apartment, (6) paid rent of some form, and (7) was never told that she could
not access any part of the apartment. The only evidence identified by plaintiff that suggests that Ms.
Ledesma lacked actual authority is the lease agreement, which does not list Ms. Ledesma. Although
this lone fact is relevant, it is not controlling. See United States v. Matlock, 415 U.S. 164, 171 n.7
(1974) (explaining that “common authority” is not based on property law). The court concludes that,
in light of all the record evidence, no reasonable jury could find that Ms. Ledesma lacked actual
authority.
Defendant also argues that no reasonable jury could find that Ms. Ledesma’s consent was
involuntary. Again, the court agrees. Consent is voluntary when there is clear and positive evidence
that consent was “unequivocal and specific and freely and intelligently given” and the officers did not
use any “implied or express duress or coercion.” Sanchez, 608 F.3d at 690.
The undisputed facts in this case indicate that defendant asked Ms. Ledesma if he could look
around the apartment, and she agreed. Defendant did not threaten Ms. Ledesma, and he was
professional and appropriate in his conduct towards her. Plaintiff identifies no evidence suggesting
that Ms. Ledesma did not understand defendant’s request, that Ms. Ledesma lacked education or
intelligence to comprehend his request and the associated consequences, or that Ms. Ledesma was
pressured, badgered, or forced into giving consent. Rather, plaintiff generally argues that defendant
“coerced” Ms. Ledesma. But, at this point in the case, “unsupported conclusory allegations . . . do not
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create an issue of fact” and are insufficient to defeat summary judgment. McKenzie v. City & Cnty. of
Denver, 414 F.3d 1266, 1273 (10th Cir. 2005).
After reviewing the entire record and drawing all reasonable inferences in plaintiff’s favor, the
court finds that no reasonable jury could conclude that Ms. Ledesma lacked actual authority or that her
consent was involuntary. Defendant is entitled to summary judgment on plaintiff’s claim. The court
grants defendant’s motion for summary judgment and, for the same reasons, denies plaintiff’s motion
for summary judgment.
IT IS THEREFORE ORDERED that defendant’s Motion For Summary Judgment (Doc. 36)
is granted.
IT IS FURTHER ORDERED that Plaintiff’s Motion For Summary Judgment With
Suggestions In Support And In Opposition To Defendant’s Motion For Summary Judgment (Doc. 40)
is denied.
Dated 17th day of June, 2013, at Kansas City, Kansas.
s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge
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