WIDI v. MCNEIL et al

Filing 236

ORDER granting 214 Motion for Summary Judgment by Defendants Clark and Lyon. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DAVID J. WIDI, JR.
Plaintiff,
v.
PAUL MCNEIL, et al.,
Defendants.

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2:12-cv-00188-JAW

ORDER GRANTING THE RENEWED MOTION FOR SUMMARY
JUDGMENT BY DEFENDANTS CLARK AND LYON
In Count XIII of his Amended Complaint, David J. Widi, Jr. alleges that
Denis R. Clark and Michael Lyon searched his residence in November 2005 in
violation of the Fourth Amendment of the United States Constitution.

Messrs.

Clark and Lyon (Defendants) move the Court for summary judgment, asserting that
they received the consent of a person with apparent authority to give it when
entering the residence, that Mr. Widi had consented to the search as a condition of
his probation, and that Mr. Widi has suffered no constitutional deprivation. The
Court grants the Defendants’ motion for summary judgment because Mr. Widi
consented to a search of his residence as a condition of his probation.
I.

LEGAL STANDARD
A court may grant summary judgment under Federal Rule of Civil Procedure

56 if the record demonstrates that there is no genuine dispute as to any material
fact and the moving party is entitled to judgment as a matter of law. “Material”

means that the fact has the potential to change the outcome of the litigation;
“genuine” means that a reasonable jury could resolve the matter in favor of the nonmoving party. Navarro v. Pfizer Corp., 261 F.3d 90, 93-94 (1st Cir. 2001) (quoting
McCarthy v. Nw. Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995)). The Court must
examine the record evidence “in the light most favorable to, and drawing all
reasonable inferences in favor of, the nonmoving party.” Feliciano de la Cruz v. El
Conquistador Resort & Country Club, 218 F.3d 1, 5 (1st Cir. 2000).
II.

FACTS
A.

Procedural Posture

On September 24, 2013, the Court dismissed without prejudice an earlier
motion for summary judgment by these same Defendants based on the limitations
period for actions under 42 U.S.C. § 1983. Order Denying Motion for Summary
Judgment by Defendants Clark and Lyon (ECF No. 169) (First Order). After their
first attempt to file a second motion for summary judgment foundered on difficulties
communicating with Mr. Widi as he was transferred from prison to prison, Order on
Plaintiff’s Motion to Vacate (ECF No. 212), the Defendants re-filed their Second
Motion for Summary Judgment on February 19, 2014. Second Mot. of Defs. Denis
Clark and Michael Lyon for Summ. J. (ECF No. 214) (Def.’s Mot.). They included a
Statement of Material Facts, Statement of Material Facts (ECF No. 215) (DSMF),
and an Affidavit of Michael Lyon. DSMF Attach. 5 Aff. of Michael Lyon (ECF No.
215) (Lyon Aff.).

2

Following a short stay granted by the Court, Mr. Widi replied in opposition to
the motion for summary judgment on April 7, 2014. Opp’n to Second Mot. of Defs.
Clark and Lyon for Summ. J. With Accompanying Mots. for Disc. and Appointment
of Counsel (ECF No. 228) (Pl.’s Opp’n). The Court recently addressed the collateral
motions for discovery and appointment of counsel in Mr. Widi’s opposition. Order
on Mot. to Appoint Counsel and Mot. for Disc. (ECF No. 232).

Mr. Widi also

included a reply to the Defendants’ statement of material facts and his own
statement of additional material facts.

Reply Statement of Material Facts and

Opposing Statement of Material Facts (ECF No. 230) (PRDSMF) (PSAMF). Mr.
Widi filed a Declaration in support of his opposition. Second Decl. of David J. Widi
Jr. Regarding Count XIII (ECF No. 231) (Widi Second Decl.). In his reply to the
Defendants’ statement of material facts, Mr. Widi also refers to affidavits from the
earlier motion for summary judgment. Decl. of David J. Widi Jr. Regarding Count
XIII (ECF No. 65) (Widi First Decl.); Reply of Defs. Denis Clark and Michael Lyon to
Additional Statement of Material Facts Attach. 2 Second Aff. of Denis R. Clark (ECF
No. 71) (Clark Second Aff.).
The Defendants filed a reply to Mr. Widi’s opposition on April 17, 2014.
Reply of Defs. Denis Clark and Michael Lyon to Pl.’s Opp’n to Summ. J. Mot. (ECF
No. 235) (Def.’s Reply). They also filed a reply to Mr. Widi’s statement of additional
material facts. Reply Statement of Material Facts of Defs. Denis Clark and Michael
Lyon (ECF No. 234) (DRPSAMF).

3

B.

Summary Judgment Facts

Denis R. Clark is employed by the Maine Department of Corrections (MDOC)
as an adult probation officer, a position he has held for eight years. DSMF ¶ 1;
PRDSMF ¶ 1. P.O. Clark supervised the probation of Mr. Widi from February 2005
to February 2006.

DSMF ¶ 2; PRDSMF ¶ 2.

Mr. Widi was convicted in the

Rockingham County, New Hampshire Superior Court of reckless conduct. DSMF ¶
3; PRDSMF ¶ 3.1 He was sentenced to twelve months in prison, all suspended, and
two years of probation. DSMF ¶ 3; PRDSMF ¶ 3. Upon application of the New
Hampshire Department of Corrections, Mr. Widi’s probation was transferred to
Maine, and P.O. Clark was assigned to supervise him. DSMF ¶ 4; PRDSMF ¶ 4.
The transfer was officially accepted on March 10, 2005. DSMF ¶ 4; PRDSMF ¶ 4.
Mr. Widi was arrested on December 8, 2005 for several probation violations. DSMF
¶ 5; PRDSMF ¶ 5.

Defendants claim that Mr. Widi was convicted of “felony” reckless conduct, DSMF ¶ 3, while
Mr. Widi contends that he was convicted of a misdemeanor. PRDSMF ¶ 3. Viewing the record
evidence in the light most favorable to Mr. Widi, his assertion is supported by his own sworn
declaration. Widi Decl. at ¶¶ 1-3. The Court therefore accepts Mr. Widi’s version solely for the
purpose of summary judgment on Count XIII pursuant to District of Maine Local Rule 56(f), (g).
However, as the Court previously remarked, “[w]hether the crime for which Mr. Widi was
convicted in New Hampshire was a felony or misdemeanor should be an ascertainable fact based on
New Hampshire court records. His sentence of twelve months incarceration, all suspended, does not
resolve the issue.” First Order at 7 n.11. New Hampshire defines a felony as either class A or B and
a class B felony is defined as “any crime . . . for which the maximum penalty . . . is imprisonment in
excess of one year but not in excess of 7 years.” N.H. REV. STAT. §§ 625:9(III)(a)(2), 631:3. New
Hampshire defines a class A misdemeanor as “any crime . . . for which the maximum penalty . . . is
imprisonment not in excess of one year.” Id. § 625:9(IV)(a). Section 631:3 of New Hampshire law
provides: “Reckless conduct is a class B felony if the person uses a deadly weapon . . . All other
reckless conduct is a misdemeanor.” Id. § 631:3(II).
It would seem that there should be a definitive answer to this question. As the Court earlier
wrote, “[d]ueling personal knowledge affidavits in lieu of court records are distinctly unhelpful.”
First Order at 7 n.11.
1

4

In November 2008, Mr. Widi found himself in trouble again. This time, a
special agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives issued
a criminal complaint against Mr. Widi, alleging that on November 28, 2008, having
previously been convicted of a felony, he possessed a firearm, a violation of 18
U.S.C. § 922(g)(1).2 Criminal Compl. (ECF No. 1), United States v. Widi, No. 2:08mj-142-JHR (D. Me.). At a detention hearing in the U.S. District Court for the
District of Maine on December 3, 2008, Detective Kevin Curran of the Eliot, Maine
police department testified that he entered David Widi’s residence in November,
2005 with P.O. Clark at a time when Mr. Widi was not at home.

DSMF ¶ 6;

DRPSMF ¶ 6. P.O. Clark has no current recollection or record of entering Mr.
Widi’s residence at that time. DSMF at 2, ¶ 2; PRDSMF ¶ 7.3
During the same time, P.O. Lyon supervised a probationer named D.S., who
shared the apartment on Harold Dow Highway in Eliot with Mr. Widi in November,

In their filings, the parties did not mention this new criminal complaint, but the sequence of
events is unclear without the intervening federal criminal complaint. Without it, there would be no
explanation as to why the case jumped three years later from a state probation violation to federal
court. As the initiation of the criminal complaint is a matter of this Court’s docket, the Court has
taken judicial notice of this fact and has inserted it for context.
3
Again, this statement is ambiguous as to whether P.O. Clark recalled entering Mr. Widi’s
residence when he testified in 2008. To clarify, the parties do not contend that P.O. Clark had no
memory of the event when he testified about it in 2008, only that he has no current memory of it.
Oddly, the Defendants have numbered paragraphs in their Statement of Material Facts
running 1, 2, 3, 4, 5, 6, 2, 3, 4. DSMF at 1-2. The Court refers to paragraphs 2 through 4 of page 2
by reference to both page and paragraph. References to paragraphs 2 through 4 without a page
number indicate a paragraph occurring on page 1 of the Statement of Material Facts.
Mr. Widi interposes a qualified response to page 2, paragraph 2, citing evidence that
Probation Officer Clark did in fact enter Mr. Widi’s residence in November, 2005. PRDSMF ¶ 7
(citing Clark Second Aff. ¶¶ 3-4; Lyon Aff. ¶¶ 6-7; and DSMF Attach. 2 Transcr. of Proceedings at 4-5
(ECF No. 215) (Detention Hearing)). However, page 2, paragraph 2 does not make any assertion
about what Probation Officer Clark actually did; the assertion speaks to what he recalls. Mr. Widi’s
record citations do not controvert this assertion, so the Court deems page 2, paragraph 2 admitted
under Local Rule 56(f), (g).
2

5

2005.

DSMF at 2, ¶ 3; PRDSMF ¶ 8.4

On November 15, 2005, P.O. Lyon,

accompanied by an Eliot police officer and “probably” by P.O. Clark, conducted a
home visit of the residence shared by D.S. and Mr. Widi. DSMF at 2, ¶ 3; PRDSMF
¶ 8. D.S. was not at home, but his girlfriend was present and allowed the probation
officers to enter the apartment. DSMF at 2, ¶ 3; PRDSMF ¶ 8.5 They found no
contraband and left. DSMF at 2, ¶ 3; PRDSMF ¶ 8.
Sometime in November, 2005, Detective Curran entered Mr. Widi’s
apartment with P.O. Clark when Mr. Widi was not home. Detention Hr’g at 4:8-17,
5:12-17. This may or may not have been November 15, 2005, when P.O. Lyon, an

Mr. Widi denies page 2, paragraph 3 in its entirety, but his denial only addresses the third
sentence of that paragraph. The Court deems the first two sentences admitted under Local Rule
56(f), (g).
5
Mr. Widi denies this assertion. PRDMSF ¶ 8 (citing Widi Second Decl. ¶ 5 and DSMF
Attach. 6 (ECF No. 215) (CORIS Note)). He cites his Second Declaration, in which he swears to the
following facts:
4

3) [D.S.] requested of Defendant Lyon to be allowed to move into my apartment
around November 4, 2005, but did not stay with me until November 12, 2005.
4) [D.S.] and I shared the common areas of the apartment, but each maintained
private bedrooms.
5) Christine Donnelly was never left alone in the apartment.
Widi Second Aff. ¶¶ 3-5. The CORIS Note provided with P.O. Lyon’s Affidavit mentions that a
“C[redacted] D[Redacted]” was present at the apartment, and the Affidavit itself swears that D.S.’s
girlfriend “was present and allowed the officers to enter the apartment and look around.” Lyon Aff. ¶
3. Drawing all reasonable inferences in Mr. Widi’s favor, the Court concludes that “C.D.” was
Christine Donnelly.
However, Mr. Widi’s assertion that Ms. Donnelly “was never left alone in the apartment,”
Widi Second Aff. ¶ 5, does not controvert the assertion of page 2, paragraph 3. This is because Mr.
Widi can only establish facts by affidavit of which he has personal knowledge. FED. R. CIV. P.
56(c)(4). Mr. Widi can swear that he himself never left Ms. Donnelly alone in the apartment, but he
cannot swear that she “was never left alone.” The use of the passive voice indicates that D.S. never
left Ms. Donnelly alone when Mr. Widi was not present, and Mr. Widi has no way to know this
personally. The Court must view all record evidence in a light most favorable to Mr. Widi, but it
may not allow him to swear to facts of which he does not have personal knowledge. Because Mr.
Widi has not shown record evidence to controvert the assertion of page 2, paragraph 3, the Court
deems it admitted under Local Rule 56(f), (g).

6

unidentified Eliot police officer, and possibly P.O. Clark searched Mr. Widi’s entire
apartment. PSAMF ¶ 10; DRPSAMF ¶ 10.6
D.S. lived with Mr. Widi for about a week, and never paid rent. PSAMF ¶ 15;
DRPSAMF ¶ 15.7
December 14, 2005.

D.S. did not stay with Mr. Widi in the apartment through
PSAMF ¶ 16; DRPSAMF ¶ 16.8

Mr. Widi and D.S. both

maintained private areas in the apartment. PSAMF ¶ 11; DRPSAMF ¶ 11. The
information that there might have been a weapon in the apartment related only to

In paragraph 10, Mr. Widi asserts that “Defendant Curran, Clark, and Lyon searched Mr.
Widi’s entire apartment on November 15, 2005. The Defendants interpose a qualified response to
this paragraph, pointing out that the CORIS Note does not record the extent of the November 15
search. They further observe that P.O. Lyon swears in his affidavit that he “look[ed] around.” Lyon
Aff. ¶ 8. However, drawing all reasonable inferences in Mr. Widi’s favor, the Court concludes that
whoever was in the apartment on November 15, 2005, including P.O. Lyon, did search the entire
apartment.
The Court cannot credit paragraph 10 as Mr. Widi drafted it, however. Viewing the record
evidence in a light most favorable to Mr. Widi and drawing all reasonable inferences, the Court
cannot conclude with certainty that the episode Detective Curran mentioned in the Detention
Hearing is the same as the episode of November 15, 2005. P.O. Lyon does not recall the name of the
Eliot police officer who accompanied him on November 15; it might or might not have been Officer
Curran. Lyon Aff. ¶ 6. P.O. Lyon is also not certain that P.O. Clark accompanied him on the
November 15 visit. Id. ¶ 7. Officer Clark has “no recollection of entering [Mr.] Widi’s residence in
November, 2005, with Kevin Curran or any other police officer.” Clark Second Aff. ¶¶ 3. In fact,
P.O. Clark’s own regularly-kept records contain no indication of such a visit. Id. ¶ 4. Under the
applicable summary judgment standard, this record cannot support the conclusion that Detective
Curran, Officer Lyon, and Officer Clark together visited and searched Mr. Widi’s apartment on
November 15, 2005. The Court has adjusted the assertion to reflect what the record supports, and
deems the modified assertion admitted under Local Rule 56(f), (g).
The Court deems paragraph 10 admitted under Local Rule 56(f), (g).
7
The Defendants deny this statement, citing P.O. Lyon’s affidavit. DRPSAMF ¶ 15 (citing
Lyon Aff. ¶ 3). However, the Court must resolve all factual disputes in Mr. Widi’s favor in evaluating
this motion for summary judgment. The Court deems paragraph 15 admitted under Local Rule 56(f),
(g).
8
The Defendants deny this statement, citing P.O. Lyon’s affidavit. DRPSAMF ¶ 16 (citing
Lyon Aff. ¶ 3). However, the Court must resolve all factual disputes in Mr. Widi’s favor in evaluating
this motion for summary judgment. The Court has removed Mr. Widi’s statement that D.S. was “in
York County Jail,” because this statement is supported only by Mr. Widi’s sworn declaration; Mr.
Widi does not appear to have personal knowledge of D.S.’s whereabouts after he left the apartment.
See PSAMF ¶ 16 (citing Widi Second Decl. ¶ 8). The Court otherwise deems paragraph 16 admitted
under Local Rule 56(f), (g).
6

7

D.S. PSAMF ¶ 12; DRPSAMF ¶ 12.9 Detective Curran and Probation Officers
Clark and Lyon never asked Mr. Widi for permission to search his apartment.
PSAMF ¶ 13; DRPSAMF ¶ 13.10
Mr. Widi’s conditions of probation in 2005 included:
I will submit to reasonable searches of my person, property and
possessions as requested by the Probation/Parole Officer and permit
the Probation/Parole Officer to visit my residence at reasonable times
for the purpose of examination and inspection for the enforcement of
the conditions of probation and parole.
DSMF at 2, ¶ 4; PRDSMF ¶ 9.

The Defendants interpose a qualified response that the CORIS Note does not indicate who
owned the weapon. DRPSAMF ¶ 12. However, the CORIS Note lists “staff” as “Lyon, Michael,” and
P.O. Lyon was D.S.’s probation officer, not Mr. Widi’s probation officer. Lyon Aff. ¶ 2; Statement of
Material Facts Attach. 1 Aff. of Denis R. Clark, ¶ 8 (ECF No. 49) (Clark Aff.). Drawing all reasonable
inferences in favor of Mr. Widi, the Court concludes that the information about a weapon related to
D.S., not to Mr. Widi. The Court deems the first sentence of paragraph 12 admitted under Local
Rule 56(f), (g).
In the second sentence of paragraph 12, Mr. Widi claims that “[P.O.] Clark supervised Mr.
Widi and has no record of him possessing a weapon at this time or a search being done for this
reason.” PSAMF ¶ 12 (citing Clark Second Aff. ¶ 3). Paragraph 3 of P.O. Clark’s second Affidavit
does not support this assertion, and the Court does not credit it.
10
In paragraph 13, Mr. Widi claims that “Defendants Curran, Clark, and Lyon never requested
to search Mr. Widi’s apartment.” PSAMF ¶ 13 (citing CORIS Note and Widi Second Decl. ¶ 2). The
CORIS Note provides no evidence to support or controvert this assertion; it simply notes that Ms.
Donnelly was present at the time of the search. CORIS Note. Mr. Widi swears that “Defendants
Clark and Lyon never requested to search my apartment when I wasn’t home,” Widi Second Decl. ¶
2, but this statement does not reflect Mr. Widi’s personal knowledge. If Mr. Widi was not at home,
he would have no way to know whether the probation officers did or did not make a request—to
someone, perhaps other than Mr. Widi—to search the apartment. See FED. R.CIV. P. 56(c)(4). The
Court has adjusted the assertion of paragraph 13 to reflect the most to which Mr. Widi can testify on
personal knowledge: that the probation officers never asked him personally for permission to search
the apartment. See Widi Second Decl. ¶ 2.
In paragraph 14, Mr. Widi claims that “[t]he Eliot/Kittery Police Department had a practice
of unlawfully entering Mr. Widi’s private property to conduct searches.” PSAMF ¶ 14. This is a
statement of legal argument, not a historical fact. The non-moving party may not “rest[] merely
upon conclusory allegations,” Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.
1990), and the Court is not required to credit bald legal argument to establish a factual dispute. The
Court does not credit paragraph 14.
9

8

III.

POSITION OF THE PARTIES
A.

The Defendants

The Defendants first argue that Mr. Widi cannot bear his burden of
production on the elements of the constitutional offense because Detective Curran’s
testimony at the Detention Hearing is hearsay and inadmissible. Def.’s Mot. at 4-5.
They next argue that the testimony, if admissible, does not show a constitutional
violation; this is so, in their view, because the unconsented entry to Mr. Widi’s home
complied with the terms of his probation conditions. Id. at 5-6. Next, they argue
that “the event probably referred to in Officer Curran’s testimony was actually a
visit by [P.O.] Lyon to a different probationer, D.S., who shared an apartment with
[Mr.] Widi in 2005 at the time of the alleged entry.” Id. at 6. They argue that Ms.
Donnelly gave apparent consent to their entry and search, and the probation
officers could not have violated Mr. Widi’s rights under the Fourth Amendment. Id.
Finally, the Defendants argue that Mr. Widi has no cognizable constitutional
injury because he only learned of the unconsented entry in 2008, three years after it
actually happened. Id. at 7. Since he suffered no injury as a result of the entry and
search, they contend that he is not entitled to compensatory damages. Id. Because
his injury is only “abstract,” they argue that “he is not entitled to the only relief
[money damages] he requests against these defendants.” Id.
B.

Mr. Widi

Mr. Widi first argues that this Court’s previous decision regarding the
admissibility of Detective Curran’s testimony, First Order at 12, should be law of
the case and control the admissibility of the same testimony in this summary
9

judgment motion. Pl.’s Opp’n at 4-5. He next disputes that the unconsented entry
and search was reasonable under the terms of his then-current probation
conditions. Id. at 6. In his view, his expectation of privacy was not so compromised
by the terms that it was reasonable for probation officers to enter his home at any
time without notice or permission. Id.
Next, Mr. Widi attacks as speculative the Defendants’ effort to connect the
incident to which Detective Curran testified at the Detention Hearing to the
November 15, 2005 incident to which Ms. Donnelly apparently consented. Id. at 7.
He further argues that Ms. Donnelly could not have given apparent consent to
search Mr. Widi’s bedroom, because the information about the weapon in the house
was related only to D.S., not to Mr. Widi. Id.
Finally, Mr. Widi argues that even if he is not entitled to compensatory
damages, he might be entitled to the punitive damages that he has requested in his
Amended Complaint. Id. at 8.
C.

The Defendants’ Reply

The Defendants make three points in reply.

First, they argue that the

probation conditions did anticipate an unconsented entry into his home.

Def.’s

Reply at 2. This is so, in their view, because the condition stated: “I will . . . permit
the Probation/Parole Officer to visit my residence at reasonable times for the
purpose of examination and inspection for the enforcement of the conditions of
probation and parole.”

Id.

They view the consent or lack of consent by Ms.

Donnelly as “not material” because the probation conditions “do[] not require

10

anyone to be present when the probation officer visits and inspects the premises.”
Id.
Second, the Defendants dispute that Mr. Widi has made an evidentiary
showing that would establish wrongful state of mind necessary for punitive
damages. Id.
Third, the Defendants argue that the burden is on Mr. Widi to prove facts
that would entitle him to withstand summary judgment, and deny that they bear
any burden of production. Id. at 2-3.
IV.

DISCUSSION
The Fourth Amendment to the U.S. Constitution prohibits, among other

things, unreasonable searches. U.S. CONST. amend IV. The Fourth Amendment
restrains state agents as well as federal agents.
(1949); Mapp v. Ohio, 367 U.S. 643 (1961).

Wolf v. Colorado, 338 U.S. 25

A search without a warrant is

presumptively unreasonable, Kyllo v. United States, 533 U.S. 27, 39 (2001), but that
presumption can be rebutted if the state can show that an exception to the warrant
requirement applies. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).

One

such exception is when the police obtain, without coercive tactics, the consent of one
with apparent authority to grant it. Id. at 246-48. The Supreme Court has also
upheld the warrantless search of a probationer based only on the reasonable
suspicion of police officers, United States v. Knights, 534 U.S. 112 (2001), and the
warrantless, suspicionless search of a parolee who had consented as a condition of
parole to search at any time without cause. Samson v. California, 547 U.S. 843,

11

846, 857 (2006). Most recently, the Supreme Court ruled that Maryland police did
not violate the expectation of privacy of a pre-trial detainee when they “searched”
him by collecting a DNA sample. Maryland v. King, 133 S. Ct. 1958, 1966, 1980
(2013).
A.

The Admissibility of Detective Curran’s Testimony

The Defendants claim Officer Curran’s testimony from the Detention Hearing
is hearsay and inadmissible to prove that defendants entered plaintiff’s residence.
Second Motion at 4-5. In its earlier order dismissing the first motion for summary
judgment, the Court considered Detective Curran’s testimony for the purpose of
summary judgment, First Motion at 12, and does so again here for the same
reasons.
B.

The Theory of Actual Consent by Ms. Donnelly

Defendants argue that Detective Curran’s testimony must have referred to
the November 15, 2005 home visit by Officers Lyon, maybe Officer Clark, and an
unnamed Eliot police officer. In their view, the girlfriend of Mr. Widi’s roommate
gave consent for the entry and search, and had apparent authority to do so.
“Consent searches are part of the standard investigatory techniques of law
enforcement agencies” and are “a constitutionally permissible and wholly legitimate
aspect of effective police activity.” Schneckloth, 412 U.S. at 228, 231-32. If the
search took place as the Defendants have surmised—namely, the girlfriend of a
lodger consenting to the search—the facts are similar to Fernandez v. California,
134 S. Ct. 1126 (2014), where the defendant’s girlfriend consented to a search of
their jointly occupied apartment. In Fernandez, the Supreme Court reiterated the
12

rule that “consent by one resident of jointly occupied premises is generally sufficient
to justify a warrantless search.” Id. at 1133. The Supreme Court explained that “a
person who shares a residence with others assumes the risk that ‘any one of them
may admit visitors, with the consequence that a guest obnoxious to one may
nevertheless be admitted in his absence by another.’”

Id. (quoting Georgia v.

Randolph, 547 U.S. 103, 111 (2006)).
Unlike Randolph, there is no suggestion here that Mr. Widi, D.S., or anyone
else objected to the search. See Fernandez, 134 S. Ct. at 1133 (“The Court’s opinion
went to great lengths to make clear that its holding was limited to situations in
which the objecting occupant is present. Again and again, the opinion of the Court
stressed this controlling factor”).

Whenever this search took place, there is no

evidence at all that Mr. Widi was present to object. In fact, the reason Mr. Widi is
now objecting is that he was not present to object during the search. In the face of
consent to search by a person with apparent authority to consent, the police do not
need to assume that an absent resident would have objected had he been there. Id.
at 1135 (“[T]he calculus of this hypothetical caller would likely be quite different if
the objecting tenant was not standing at the door”). Thus, if the search took place
when the Defendants say it did and with the consent of the girlfriend of a tenant,
Mr. Widi has no valid constitutional gripe.
The problem is that in the context of a motion for summary judgment, the
facts in the dueling filings are simply too fuzzy to find, over Mr. Widi’s objection,
that the search took place when the Defendants say it did. The Defendants have

13

not established anything more than a speculative connection between the November
15, 2005 home visit and the entry and search of which Detective Curran testified at
the detention hearing.

It is understandable that the officers’ memories are

decidedly hazy about a search that supposedly took place over eight years ago and
revealed nothing. Detective Curran’s testimony does not reveal the date of his visit
with Officer Clark; the Defendants can only claim that “the event probably referred
to in Detective Curran’s testimony was actually a visit by [Officer] Lyon to a
different probationer, D.S., who shared an apartment with Widi at the time of the
alleged entry.”

Def.’s Mot. at 6.

Moreover, the record is silent as to what, if

anything, D.S.’s girlfriend, Christine Donnelly recalls about this incident. As the
non-movant, Mr. Widi is entitled to the benefit of all reasonable inferences in his
favor.11 One such reasonable inference is that Detective Curran was not, in fact,
referring to the November 15, 2005 home visit to which Ms. Donnelly gave apparent
consent. This alone is sufficient to generate a genuine dispute of material fact and
deny Defendants judgment as a matter of law on the apparent consent theory.
C.

Consent by Mr. Widi as a Condition of Probation

The United States Supreme Court has long held that, although probationers
may enjoy some Fourth Amendment protections, it is also true that “[i]nherent in
the very nature of probation is that probationers ‘do not enjoy “the absolute liberty
to which every citizen is entitled.’”” Knights, 534 U.S. at 119 (quoting Morrissey v.
The Defendants are correct that Mr. Widi has the burden of production as to the general
elements of a constitutional violation, Def.’s Mot. at 4, but the Defendants bear the burden of
production as to the defense of consent. See United States v. Luciano, 329 F.3d 1, 8 (1st Cir. 2003)
(citing Bumper v. North Carolina, 391 U.S. 543, 548 (1968)).
11

14

Brewer, 408 U.S. 471, 480 (1972)). In other words, “[j]ust as other punishments for
criminal convictions curtail an offender’s freedoms, a court granting probation may
impose reasonable conditions that deprive the offender of some freedoms enjoyed by
law-abiding citizens.” Id. The Knights Court concluded that a warrantless search
of probationer “supported by reasonable suspicion and authorized by a condition of
probation” passed constitutional muster. Id. at 122.
In 2006, the Supreme Court went further and held constitutional a California
statute that required every prisoner eligible for release on state parole to “‘agree in
writing to be subject to search or seizure by a parole officer or other peace officer at
any time of the day or night, with or without a search warrant and with or without
cause.’” Samson v. California, 547 U.S. 843, 846 (2006) (quoting Cal. Penal Code §
3067(a)). In Samson, the Supreme Court distinguished between probationers and
parolees and wrote that “parolees have fewer expectations of privacy than
probationers, because parole is more akin to imprisonment than probation is to
imprisonment.” Id. at 850. In 2013, addressing a New Hampshire parolee, the
First Circuit observed that although some states, such as California, have passed
statutes giving law enforcement the power to search the homes of persons released
on parole without any cause, it “cannot locate a similar provision under New
Hampshire law.” United States v. Vazquez, 724 F.3d 15, 21 n.3 (1st Cir. 2013).
As Mr. Widi was on probation, not parole, he had a “substantially diminished
expectation of privacy.” United States v. Graham, 553 F.3d 6, 15 (1st Cir. 2009).
Even though a probationer’s expectation of privacy might be lower than the average

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citizen, the courts have persisted in describing the standard for a warrantless
search as “a reasonable suspicion of criminal conduct.” Vazquez, 724 F.3d at 21.
This lower expectation of privacy may be further reduced, however, by agreement.
In Graham, the First Circuit observed that a probationer’s expectation of privacy
“can be further shaped by search conditions in the probation order where the order
clearly expresses the conditions and the probationer is unambiguously informed of
them.” Graham, 553 F.3d at 15-16 (internal quotations omitted). Here, there is no
evidence that the probation officers had a reasonable suspicion to believe that Mr.
Widi was engaged in criminal conduct whenever it was that they entered his
residence.
The Court turns to the other possible source of authority for the warrantless
search: the conditions of probation.

On December 15, 2004, Mr. Widi signed a

document entitled: New Hampshire Department of Corrections, Division of Field
Services, Terms and Conditions of Adult Probation. DSMF Attach. 4, Aff. of Denis
R. Clark, at Ex. 1 (ECF No. 215).

Mr. Widi’s probation conditions included

restrictions against (1) changing residence without first obtaining the Probation
Officer’s permission, (2) possession of a firearm, (3) associating with persons having
a criminal record, and (4) the use of controlled drugs or alcohol, among other
conditions.

Id.

Mr. Widi signed the document before a Probation Officer and

certified:
I hereby certify that I have this date received a copy of the rules and
regulations of probation/parole. I have read and had read to me the
rules and I fully understand and agree to comply with them.

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Id. The contested condition of probation reads:
I will submit to reasonable searches of my person, property and
possessions as requested by the Probation/Parole Officer and permit
the Probation/Parole Officer to visit my residence at reasonable times
for the purpose of examination and inspection for the enforcement of
the conditions of probation and parole.
DSMF at 2, ¶ 4; PRDSMF ¶ 9. The Court reads this clause as containing two parts.
The first—“I will submit to reasonable searches of my person, property and
possessions as requested by the Probation/Parole Officer”—contemplates the
presence of the probationer. For example, if Mr. Widi were to enter the probation
office, he could be required to undergo a reasonable examination of his person and
possessions, or if he were in a motor vehicle, the probation officer would have the
right to search his vehicle.
The second clause reads: “[I] permit the Probation/Parole Officer to visit my
residence at reasonable times for the purpose of examination and inspection for the
enforcement of the conditions of probation and parole.” This clause must mean
something different than the first clause or else it would be surplusage. The first
clause already gives the probation officer the right to search his property—
presumably including his residence—upon request.
The Court interprets this second clause to refer to a separate right of
probation officers to visit and inspect his residence so long as they are doing so at
“reasonable times” and so long as the inspection related to “enforcement of the
conditions of probation.” Unlike a personal search of Mr. Widi—which requires
submission to a request—by this clause Mr. Widi consented to inspections of his
residence by his probation officers even if he was not there. This clause is not
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unrestricted. It is limited to a search of his residence, the search must be at a
“reasonable time”, and the search must be related to the “enforcement of the
conditions of probation.”

But so long as they arrived at his residence at a

reasonable time and they were there to enforce probation conditions, Mr. Widi had
agreed to let them inspect his residence.
This interpretation of the probation condition is consistent with the
practicalities of probation. A simple example suffices. Under most conditions of
probation, including Mr. Widi’s, the probation officer is periodically obligated to
make certain that the probationer is actually living where he says he is living, that
the probationer does not have ready access to firearms, and that the probationer is
not living with a prohibited person. If actual consent were required, a probationer
could safely violate the conditions of probation in his apartment by refusing to
answer the door when the probation officers knocked. This inspection condition
allows the probation officer to conduct inspections consistent with his most basic
oversight obligations.
Here, the Defendants have asserted and Mr. Widi has admitted that on
December 3, 2008 at a detention hearing in the United States District Court for the
District of Maine, Detective Kevin Curran of the town of Eliot Police Department
testified that he entered David Widi’s residence in November 2005 with Probation
Officer Denis Clark when Mr. Widi was not home. DSMF ¶ 6; PRDSMF ¶ 6.

Mr.

Widi believes and the Court accepts as true that Detective Curran, Probation
Officer Clark, and Probation Officer Lyon all searched his entire apartment when

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he was not present on November 15, 2005.

PSAMF ¶ 10; DRPSAMF ¶ 10.

Probation Officer Clark was Mr. Widi’s Probation Officer. DSMF ¶ 4; PRDSMF ¶ 4.
This may or may not have been a second visit to Mr. Widi’s residence in November
2005.

It does not matter. Mr. Widi had expressly consented to either or both

searches.
The final question is whether this clause, as interpreted by the Court, would
be deemed unconstitutional in light of the “reasonable suspicion” standard in
Knights. Graham upheld waivers so long as the waiver was clearly expressed and
the probationer agreed with them.

In Samson, the Supreme Court authorized

searches of parolees any time day or night with or without cause. Although under
Samson there is a difference between parolees and probationers, this Court does not
view that distinction as significant enough to void a reasonably tailored, consentedto residential search condition for a probationer. Here the Court finds reasonable
the three conditions in the contested clause: (1) the visited premises must be the
probationer’s residence, (2) the visit must have been made at a reasonable time, and
(3) the visit must have been for the purpose of examination and inspection to
enforce the conditions of probation. Mr. Widi may not now be heard to complain
about a search carried out pursuant to a search condition that he consented to when
he entered into probation.12

Because the Defendants are entitled to judgment as a matter of law based on Mr. Widi’s
probation conditions, the Court need not reach the parties’ disagreement about whether Mr. Widi’s
requested remedies render Count XIII non-viable.
12

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V.

CONCLUSION
The Defendants are entitled to judgment as a matter of law on Count XIII

because, although there are genuine disputes of fact, they are not material in light
of Mr. Widi’s consented to probation conditions. Thus, the Court GRANTS the
Defendants’ Second Motion for Summary Judgment as to Count XIII (ECF No. 214).
SO ORDERED.

/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
CHIEF UNITED STATES DISTRICT JUDGE
Dated this 21st day of April, 2014

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