Fairbanks v. Danvers, Town of et al
Filing
80
Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER: For the foregoing reasons, plaintiffs motion for reconsideration and to alter or amend the judgment (Docket No. 73 ) is ALLOWED and the Courts prior Memorandum and Order (Docket No. 71 ) is AMENDED as follows:1) Defendants motion for summary judgment as to Count I of the complaint for false arrest is ALLOWED; and2) Defendants motion for summary judgment as to Count II for unlawful search and as to Count III for unlawful seizure is DENIED. The judgement entered on August 10, 2018 (Docket No. 72 ) is hereby VACATED. So ordered. (Vieira, Leonardo)
United States District Court
District of Massachusetts
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Plaintiff,
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v.
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OFFICER DANA O’HAGAN, DETECTIVE )
WILLIAM CARLETON, OFFICER
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WILLIAM CASSIDY, OFFICER JAMES )
GEORGE and SERGEANT KEVIN
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JANVRIN,
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Defendants.
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MATTHEW FAIRBANKS,
Civil Action No.
16-10023-NMG
MEMORANDUM & ORDER
GORTON, J.
This civil action arises out of an alleged domestic assault
and battery by Matthew Fairbanks (“Fairbanks” or “plaintiff”) on
his estranged father during a social gathering at plaintiff’s
apartment in Danvers, Massachusetts.
The local police
department was notified and Officers Dana O’Hagan (“Officer
O’Hagan”), James George (“Officer George”), and William Cassidy
(“Officer Cassidy”), and Sergeant Kevin Janvrin (“Sergeant
Janvrin”) and Detective William Carleton (“Detective Carleton”)
(collectively “defendants”) responded.
Fairbanks was
subsequently arrested for assault and battery and the police
discovered numerous weapons and ammunition after a search of his
apartment.
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Fairbanks brought this action pursuant to 42 U.S.C. § 1983
for, among other things, false arrest and unlawful search and
seizure in violation of the Fourth and Fourteenth Amendments to
the United States Constitution.
In August, 2018, this Court
allowed defendants’ motion for summary judgment on the remaining
counts for false arrest (Count I) and unlawful search and
seizure (Counts II and III), holding that 1) the police had
probable cause to arrest Fairbanks at the time of the incident
and 2) their subsequent search of the apartment and seizure of
the weapons found were justified both as a protective sweep and
by the exigent circumstances exception to the Fourth Amendment
warrant requirement.
Plaintiff has now filed a motion under Fed. R. Civ. P.
59(e) for reconsideration of the Court’s prior decision and
amendment of its judgment.
He contends, among other things,
that the Court 1) ignored evidence that created genuine issues
of material fact with respect to the allegedly unlawful search
and seizure and 2) failed to address his argument that there
were three separate entries into his apartment on the night of
the incident.
After reviewing its previous Memorandum and Order
(Docket No. 71), the filings of the parties and the affidavits
of the relevant individuals, the Court agrees with plaintiff and
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will alter and amend its prior order on defendants’ motion for
summary judgment.1
I.
Background
A.
Facts
For the Court’s initial recitation of the relevant facts,
see the prior Memorandum and Order on defendants’ motion for
summary judgment (Docket No. 71).
B.
Additional Facts Not Previously Addressed
The Court herein supplements its statement of facts set
forth in its prior Memorandum and Order.2
First, there now appears to be a genuine issue of material
fact as to whether the .45 caliber pistol, knives and other
weapons paraphernalia were in plain view when the officers
confiscated them from the apartment without a warrant.
Officer
Cassidy submits in his affidavit that Maria Melendez
(“Melendez”) led the officers to the laundry area of the
apartment and opened
closet-like double doors revealing a .45 pistol and
some knives and bullets and magazines that she had
placed on top of a washer or dryer.
Fairbanks does not contest the Court’s dismissal of his claim for false
arrest and thus the Court’s decision as to that claim will be confirmed.
2 In his motion to reconsider, Fairbanks also asserts that the disputed
affidavit submitted by his counsel is admissible. Because this Court finds
that the affidavits of Officer Cassidy, Detective Carleton and Maria Melendez
create a genuine issue of material fact, it is unnecessary for it to decide
that question.
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Melendez denies that version of events, however, explaining in
her affidavit that, while she told the officers where the pistol
and knives were located, she never escorted them to the weapons.
Rather, she contends that she left the apartment before the
officers performed their protective sweep.
Drawing a reasonable
inference in favor of plaintiff as the non-moving party on
summary judgment, see O’Connor v. Steeves, 994 F.2d 905, 907
(1st Cir. 1993), Melendez’s affidavit suggests that it was the
officers who opened the closet in the laundry room to discover
the pistol and knives and thus those weapons were arguably not
in plain view.
Second, there also appears to be a genuine issue of
material fact as to whether there was a separate entry into the
apartment after the initial protective sweep and whether the
weapons and paraphernalia were seized during that subsequent
search.
According to the affidavit of Officer Cassidy, he did
not move any objects during the protective sweep and thereafter
stood-by outside the apartment door to make sure no
one entered the apartment . . . [while] Sergeant
Janvrin made arrangements for building maintenance and
the police department’s photographer to respond to the
apartment.
Detective Carleton explains in his affidavit that
[a]fter about 30 minutes from initial dispatch, [he]
was requested to respond in [his] role as department
photographer . . . [and that] [w]hen [he] arrived,
officers had already entered [the apartment].
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Detective Carleton also submits that he did not move or
seize any items but took photographs of the laundry area with
the pistol, knives and ammunition on top of the washer and
dryer.
Drawing a reasonable inference in favor of plaintiff,
the affidavits of Officer Cassidy and Detective Carleton suggest
that there may have been a separate entry and search of the
apartment after the initial protective sweep.
II.
Rule 59(e) Motion
A.
Legal Standard
Upon timely motion, a court may alter or amend a judgment.
Fed. R. Civ. P. 59(e).
A court has considerable discretion in
granting or denying a Rule 59(e) motion but such relief is
extraordinary and should be used sparingly. Palmer v. Champion
Mortg., 465 F.3d 24, 30 (1st Cir. 2006).
A motion to alter or
amend a judgment will be allowed only if the movant demonstrates
1) an intervening change in the law, 2) a clear legal error or
3) that newly discovered evidence warrants modification of the
judgment. In re Genzyme Corp. Sec. Litig., 754 F.3d 31, 46 (1st
Cir. 2014).
B.
Relevant Fourth Amendment Law
The Fourth Amendment, as incorporated against the States by
the Fourteenth Amendment, protects individuals from unreasonable
searches and seizures. U.S. Const. amend IV; Mapp v. Ohio, 367
U.S. 643 (1961).
A warrantless search of the home is
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presumptively unreasonable unless some exception to the warrant
requirement applies. Payton v. New York, 445 U.S. 573, 586-87
(1980).
One such exception is the ability of officers to
perform a warrantless “protective sweep” of a home in
conjunction with an arrest inside or immediately outside the
home. Maryland v. Buie, 494 U.S. 325, 327 (1990); United States
v. Lawlor, 406 F.3d 37, 41-42 (1st Cir. 2005) (holding that a
protective sweep conducted following an arrest just outside the
home may be reasonable).
To be valid, a protective sweep must
be incident to an arrest, conducted to protect the safety of
police officers or others and “narrowly confined to a cursory
visual inspection of those places in which a person might be
hiding”. Buie, 494 U.S. at 327.
The search must also be
supported by an officer’s reasonable suspicion based on specific
and articulable facts that the area swept may harbor a dangerous
individual. Id.
A second exception to the Fourth Amendment’s warrant
requirement is the exigent circumstances exception.
That
exception permits an officer to enter a home in response to an
emergency situation, such as to prevent the imminent destruction
of evidence or to respond to a potential threat to the safety or
lives of the public or police officers. Fletcher v. Town of
Clinton, 196 F.3d 41, 49 (1st Cir. 1999).
To justify a
warrantless entry under the exigent circumstances exception, an
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officer must show that he or she had probable cause to enter the
premises and an objectively reasonable basis for concluding that
an exigency existed. United States v. Almonte-Baez, 857 F.3d 27,
31-32 (1st Cir. 2017).
Probable cause exists where the totality
of the circumstances creates “a fair probability that contraband
or evidence of a crime will be found in a particular place”. Id.
at 31 (quoting United States v. Tanguay, 787 F.3d 44, 50 (1st
Cir. 2015)).
Even when an initial warrantless entry is justified by some
exception to the warrant requirement, it is unlawful for an
officer who has left the premises to reenter it once the
justification for the initial search has dissipated unless a
warrant has been secured or there is some new exigent
circumstance justifying the reentry. Michigan v. Tyler, 436 U.S.
499, 511 (1978); Bilida v. McCleod, 211 F.3d 166, 172-73 (1st
Cir. 2000) (“[W]here the justification for the original
warrantless entry has completely expired and the officials have
left, we see no basis in Tyler or in constitutional policy for
any general rule that officials can then reenter without a
warrant simply to seize contraband or evidence that was seen in
plain view during the original entry.”).
Where the reentry is
merely a continuation of the initial search, however, there is
no new search requiring new justification or a warrant. Tyler,
436 U.S. 511.
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When an officer is lawfully searching a premises, the
officer may seize any evidence of a crime or contraband that is
in plain view even if he or she does not have a warrant. Arizona
v. Hicks, 480 U.S. 321, 325-28 (1987).
To seize an item
pursuant to the plain view doctrine, the officer must 1) be
lawfully present in the position from which the item is clearly
visible, 2) have probable cause to believe that the item is
evidence of a crime or is contraband and 3) have a lawful right
of access to the item. United States v. Gamache, 792 F.3d 194,
199 (1st Cir. 2015).
C.
Application
1.
The Alleged Warrantless Reentry
For the reasons discussed in its prior Memorandum and
Order, the Court reaffirms its holding that the initial entry
and search of Fairbanks’s apartment was justified both as a
protective sweep and by the exigent circumstances exception to
the warrant requirement.
Defendants had reason to believe that
there may have been others in the apartment in the presence of
loaded weapons based on comments of the victim and another
witness that Fairbanks was having a party in his apartment and
possessed loaded guns.
Furthermore, the officers had reason to
believe that Fairbanks was unstable and potentially dangerous
given the evidence that he had violently assaulted his father
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and statements that he was a former U.S. Marine suffering from
post-traumatic stress disorder.
As explained above, however, there is a genuine dispute of
fact as to whether there was a subsequent reentry into the
apartment after the initial protective sweep.
Fairbanks
contends that, after initially searching his apartment and
discovering the weapons and ammunition, the officers secured the
premises and waited outside for Detective Carleton, the
department photographer, to arrive.
Plaintiff asserts that it
was only after photographs were taken during the subsequent
reentry that the weapons, ammunition and other paraphernalia
were seized and removed from the apartment.
The affidavits of
Officer Cassidy and Detective Carleton provide support for
plaintiff’s contention that there was a separate search of his
apartment after the protective sweep.
Notably, defendants do
not contend that there was only a single entry into the
apartment but rather simply maintain that the initial entry was
justified as a protective sweep or by exigent circumstances.
Assuming for present purposes that there was a subsequent
reentry into the apartment to take photographs, that search was
unlawful because defendants did not have a warrant nor did any
exception to the warrant requirement apply at that point.
that time, the police knew there were no other individuals
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By
located in the apartment and thus the second search could not be
justified as a protective sweep.
Moreover, the apartment had been secured and officers
posted outside so that no one could enter to retrieve the loaded
weapons and thus there were no exigent circumstances present at
that time.
Finally, the water from the broken toilet had
already been turned off during the initial protective sweep and
thus the subsequent entry could not have been justified pursuant
to the officers’ community caretaking function. See Matalon v.
Hynnes, 806 F.3d 627, 633-35 (1st Cir. 2015) (defining the
community caretaking exception to the warrant requirement as
involving those responsibilities of police officers discharged
separately from their normal criminal enforcement activities).
The sole purpose of the alleged reentry was to investigate the
alleged crime and collect evidence.
A warrantless reentry under
those circumstances was unlawful and the seizure of the weapons
or other paraphernalia was also unlawful to the extent that they
were collected during that reentry.
Defendants maintain that even if the reentry and seizure of
the weapons and paraphernalia were unlawful, they are
nevertheless entitled to summary judgment on the grounds of
qualified immunity.
Qualified immunity shields government
officials from civil liability unless 1) the plaintiff’s
allegations establish a violation of a protected right, 2) that
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right was clearly established at the time of the defendant’s
alleged misconduct and 3) a reasonable officer in the
defendant’s position would have known that his or her conduct
violated the protected right. McKenney v. Mangino, 873 F.3d 75,
80-81 (1st Cir. 2017) (explaining that a plaintiff must point to
a controlling authority or consensus of cases of persuasive
authority to demonstrate that the protected right was clearly
established).
The decision of the First Circuit Court of Appeals in
Bilida clearly establishes that an officer cannot reenter
premises to collect evidence previously seen in plain view once
the justification for the initial entry has expired. Bilida, 211
F.3d at 172-73.
Once the officers conducted the initial
protective sweep, secured the apartment and subsequently left to
wait for the department photographer, they should have known
that they needed a warrant or some other excuse to the warrant
requirement to reenter.
Accordingly, defendants cannot benefit
from the doctrine of qualified immunity with respect to the
search of the apartment after the initial protective sweep.
Because the Court previously failed to address whether
there was a subsequent search of the apartment after the initial
protective sweep and there is a genuine issue of material fact
on that question, it erred in allowing defendants’ motion for
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summary judgment on plaintiff’s claim for unlawful search (Count
II).
2.
Plain View Doctrine
The Court did not address in its prior Memorandum and Order
whether the .45 pistol, knives and ammunition were in plain view
when they were seized by the police officers.
That omission was
a clear legal error in light of the conflicting evidence of
whether Melendez led the officers to the weapons in the laundry
area.
The Court previously found that the assertions in
Melendez’s affidavit were sufficient to deny defendants’ claim
that they had consent to enter and search the apartment but it
did not consider the allegations in her affidavit as being
sufficient to raise a genuine dispute as to whether the weapons
were in plain view when discovered by the officers.
If Melendez’s allegations are credited, she told the
officers where to find the weapons and ammunition but was not
present when they were actually found.
That infers that it was
the officers who opened the closet doors in the laundry room to
discover the weapons and ammunition.
The opening of storage
spaces for the purpose of discovering contraband or evidence of
a crime, rather than to uncover a hidden and potentially
dangerous individual, is not justified as part of a protective
sweep. See Buie, 494 U.S. at 334.
Under such circumstances, the
weapons and ammunition would not have originally been in plain
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view nor would the officers have had a lawful right of access to
them and thus the plain view doctrine would not apply.
Conversely, if defendants’ version of events is taken as
true, it was Melendez who led the officers to the weapons and
ammunition in the laundry room and opened the closet doors to
reveal them.
No search within the meaning of the Fourth
Amendment is implicated when a private individual unassociated
with the police searches or seizes an item. See United States v.
Jacobsen, 466 U.S. 109, 113-14 (1984).
Assuming that it was
Melendez who revealed the weapons and ammunition to the officers
and that she was not acting as an agent of the police at the
time, the plain view doctrine would apply.
The officers were
lawfully present in the laundry room due to the protective sweep
and exigent circumstances.
They had probable cause to believe
that the weapons and ammunition were evidence of a crime because
of the reported violent assault and because they were not
properly stored.
Finally, the officers had a lawful right of
access to the weapons and ammunition because they were in plain
view at that point.
The discrepancy in the testimony creates a genuine issue of
material fact which the Court should have considered in its
initial Memorandum and Order.
Furthermore, the prerequisites of
the plain view doctrine were clearly established at the time of
the incident by both the Supreme Court and the First Circuit
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such that a reasonable officer should have been aware of its
parameters and thus defendants are not entitled to qualified
immunity. See, e.g., Hicks, 480 U.S. at 325-28; Gamache, 792
F.3d at 199; United States v. Paradis, 351 F.3d 21, 31 (1st Cir.
2003) (holding that a gun was not in plain view where it was
hidden underneath a pile of clothing and stuffed animals).
Therefore, the Court erred in allowing defendants’ motion
for summary judgment with respect to the claim for unlawful
seizure of the .45 pistol, knives and ammunition (Count III).
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ORDER
For the foregoing reasons, plaintiff’s motion for
reconsideration and to alter or amend the judgment (Docket No.
73) is ALLOWED and the Court’s prior Memorandum and Order
(Docket No. 71) is AMENDED as follows:
1) defendants’ motion for summary judgment as to Count I of
the complaint for false arrest is ALLOWED; and
2) defendants’ motion for summary judgment as to Count II
for unlawful search and as to Count III for unlawful
seizure is DENIED.
The judgement entered on August 10, 2018 (Docket No. 72) is
hereby VACATED.
So ordered.
/s/ Nathaniel M. Gorton______
Nathaniel M. Gorton
United States District Judge
Dated May 10, 2019
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