GUMBS v. O'CONNOR et al

Filing 114

OPINION filed. Signed by Judge Mary L. Cooper on 6/14/2013. (eaj)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
KEVIN BRADLEY GUMBS,

CIVIL ACTION NO. 10-1520 (MLC)
O P I N I O N

Plaintiff,
v.
DETECTIVE JOHN O’CONNOR, et al.,
Defendants.

THE PRO SE PLAINTIFF, Kevin Bradley Gumbs, brings the action
against the defendants, Detective John O’Connor, Detective James
Lopez, and Officer G. Rivera, pursuant to 42 U.S.C. § 1983
(“Section 1983”).

(See dkt. entry no. 61, 2d Am. Compl.)

He

asserts that the defendants violated his rights under the Fourth
and Fourteenth Amendments.

He specifically claims that all three

defendants “searched plaintiff’s home without a warrant for the
plaintiff or a search warrant for the home.”

(Id. at 4, 5.)

He

also claims that O’Connor and Lopez searched and “seized a safe
from the home without inventory” and thus deprived him of both the
safe and its contents.

(Id. at 4; see also dkt. entry no. 113, 6-

10-13 Order at 1.)1

1

The Court earlier determined that other claims raised by
Gumbs were not viable. (See dkt. entry no. 59, 1-12-12 Mem. Op. &
Order; dkt. entry no. 21, 4-4-11 Screening Order; dkt. entry no.
20, 4-4-11 Screening Op.)

THE DEFENDANTS now move for summary judgment in their favor
and against Gumbs.

(See dkt. entry no. 103, Defs. Mot.)

raise five arguments that warrant discussion.
103-1, Defs. Br.)

They

(See dkt. entry no.

First, they argue that Gumbs lacks standing to

assert a claim related to the defendants’ search of his home.
id. at 13-17.)

(See

Second, notwithstanding Gumbs’s standing, they

argue that Gumbs’s co-tenants consented to the search of his home,
thus rendering the search constitutionally valid.
17-24.)

Third, they argue that one of Gumbs’s co-tenants consented

to the search of the safe.

(See id. at 24-35.)

Fourth, they argue

that they are each entitled to qualified immunity.
35-40.)

(See id. at

(See id. at

Fifth, they argue that Gumbs may not, through his briefing

on the Motion and Cross Motion, amend the operative pleading to add
a claim for the loss of his property, i.e., the safe and its
contents.

(See dkt. entry no. 112, Defs. Reply Br. at 19.)

GUMBS appears to have both opposed the Motion and cross-moved
for summary judgment against the defendants and in his favor.

(See

dkt. entry no. 110, Cross Mot.; dkt. entry no. 110, Responsive
Statement of Material Facts; dkt. entry no. 110, Gumbs Br.)

Gumbs

argues, inter alia, that his co-tenants’ consent to the search of
his home was coerced because the defendants misrepresented that
they held a warrant for his arrest.

(See Gumbs Br. at 22, 23, 27;

see also dkt. entry no. 110, Gumbs Statement of Facts at ¶ 9.)

2

THE COURT now resolves both the Motion and the Cross Motion on
the papers submitted and without oral argument pursuant to Local
Civil Rule 78.1(b).
I.

STANDING

THE DEFENDANTS first argue that Gumbs lacks standing to assert
a claim that relates to the defendants’ search of his home.

They

concede that Gumbs had a reasonable expectation of privacy in his
home, but argue that he nevertheless lacks standing because he was
not physically present during that search.

(See Defs. Br. at 16.)

The defendants rely on Eiland v. Jackson, 34 Fed.Appx. 40, 41-42
(3d Cir. 2002).

In Eiland, the Third Circuit Court of Appeals

(“Third Circuit”) “put some meat on [the] bare bones” of standing
jurisprudence relating to the “knock and announce” rule.

Id. at

41.
THE THIRD CIRCUIT, while discussing the facts that underlay
that case, noted both that (1) the police officers there had a
valid search warrant for the plaintiff’s home, and (2) the
plaintiff was not present when the police failed to knock and
announce their presence.

See id. at 41-42.

The Third Circuit then

stated:
It is critical to note that [the plaintiff] did not
and does not contest the validity of the search warrant
that was executed at the house. His only claim was and
is that there was a failure to knock and announce before
a forced entry was made. Thus, the question becomes
whether the failure to knock and announce impinged upon
3

[his] right to privacy in a way that exceeded the
permissible invasion of privacy occasioned by the
execution of a valid search warrant. We conclude that
it did not.
Id. at 42.
THE COURT, based on the Third Circuit’s reasoning in Eiland,
finds two issues with the defendants’ reliance on that case.
First, the defendants have conceded that they, unlike the police
officer defendants in Eiland, did not have a valid search warrant
for the premises.

(See Defs. Reply Br. at 20-21 (“It is undisputed

that the defendants did not have a search warrant at the time of
the seizure . . . .”).)

The Third Circuit found the existence of a

valid search warrant “critical” to the reasoning in Eiland.
Fed.Appx. at 42.

See 34

Second, the holding in Eiland appears to have

been specific to the knock and announce rule, which is not at issue
here.
THE COURT thus intends to deny the Motion insofar as it
concerns the issue of Gumbs’s standing to challenge the search of
his home.

The case relied on by the defendants is inapposite, and

other, binding authority -- authority that squarely addresses the
issues raised in the action -- demonstrates that “there can be no
question of [his] standing to challenge the lawfulness of the
search.

He was the one against whom the search was directed, and

the house searched was his home.”

Bumper v. North Carolina, 391

4

U.S. 543, 548 n.11 (1968) (citations omitted) (internal quotation
marks omitted).
II.

THE LAWFULNESS OF THE SEARCH OF GUMBS’S HOME

THE DEFENDANTS assert that, notwithstanding the issue of
standing, their search of Gumbs’s home was valid because his
co-tenants consented to that search.

Because the defendants rely

on consent to justify the lawfulness of that search, they have the
burden of proving that such consent was freely and voluntarily
given.

See Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973);

Bumper, 391 U.S. at 548.
THE COURT is mindful that the validity of one’s consent to a
search rests on voluntariness, and that there is “no talismanic
definition of ‘voluntariness’” that can be applied here.

United

States v. Price, 558 F.3d 270, 278 (3d Cir. 2009) (quoting
Schneckloth, 412 U.S. at 224).

Whether consent is voluntarily

given is a “question of fact to be determined from the totality of
the circumstances.”

Bolden v. Se. Pa. Transp. Auth., 953 F.2d 807,

824 (3d Cir. 1991); see Schneckloth, 412 U.S. at 226; Price, 558
F.3d at 277-78.
THE RECORD demonstrates that on May 2, 2008, the defendants
suspected Gumbs of possessing and distributing controlled dangerous
substances, i.e., cocaine and Roxicodone, and thus traveled to his
home to arrest him.

(See dkt. entry no. 103-2, Ex. E to Farsiou

5

Certification, 5-3-08 Report by Lopez.)

When they arrived, they

met Gumbs’s co-tenants, his girlfriend, Patricia J. Rahner (“Miss
Rahner”), and his girlfriend’s mother, Patricia E. Rahner (“Ms.
Rahner”).

(See id. at 3 (“We were met by Patricia Rahner, Gumbs’s

girlfriend, who said he wasn’t home.”), with dkt. entry no. 110-1,
Ex. C to Gumbs Certification, Sworn Statement of Ms. Rahner at 1
(showing that Ms. Rahner also answered the door and spoke with the
defendants).)
THE PARTIES rely on different accounts of that meeting.

The

defendants, for example, point repeatedly to Lopez’s report, where
he states simply that “Rahner was asked if we could check inside
and that she had the right to refuse.
permission to come in.”

Rahner gave us verbal

(5-3-08 Report by Lopez.)

Gumbs offers a

more detailed account, which was prepared by Ms. Rahner.

She

states that the defendants “came to the front door” and “informed
[her] that they were looking for Kevin Gumbs.”
Ms. Rahner at 1.)

(Sworn Statement of

She also states that she “was told they had a

warrant for his arrest. . . .

I asked to see the warrant and the

detective held up papers, further than an arms [sic] reach from
me.”

(Id.)

Ms. Rahner asserts that she was not allowed to inspect

those papers.

(See id.)2

2

Miss Rahner offered a substantially similar account of these
events at her deposition. (See dkt. entry no. 103-2, Ex. I to
Farsiou Certification, 12-19-12 Dep. of Miss Rahner at 44:10-45:8.)
6

GUMBS asserts that the defendants misled his co-tenants when
the defendants represented that they had a warrant for his arrest.
(See Gumbs Br. at 19; Gumbs Statement of Facts at ¶ 7.)

The Court

is uncertain, based on the evidence of record, when the warrant
issued for Gumbs’s arrest was actually issued.

(See dkt. entry no.

110-2, Ex. A to Gumbs Certification, 5-3-08 Report by O’Connor
(indicating that O’Connor spoke with an assistant prosecutor on May
2, 2008, but failing to show when such warrants were actually
issued); dkt. entry no. 103-2, Ex. G to Farsiou Certification,
Warrant at 1 (certified by O’Connor on May 3, 2008, and issued by a
judicial officer on May 6, 2008), 2 (same), 3 (same), 4 (certified
by O’Connor on May 2, 2008, and issued by a judicial officer on
that same date), 5 (certified by O’Connor on May 2, 2008, and
issued by a judicial officer on May 6, 2008).)
THE COURT, based on the foregoing factual disputes, intends
to deny both the Motion and Cross Motion insofar as concern this
issue.

The parties have shown the existence of at least two

genuine disputes of material fact, i.e.: (1) whether the police had
a warrant for Gumbs’s arrest on May 2, 2008, when they arrived at
his home; and (2) the extent to which Gumbs’s co-tenants relied on
the defendants’ representations about their possession of a warrant
for Gumbs’s arrest when consenting to the defendants’ search of his
home.

7

III. THE DEFENDANTS’ REMAINING ARGUMENTS
THE COURT will not now address either the validity of the
defendants’ search of Gumbs’s safe or the defendants’ alleged
entitlement to qualified immunity.

It would be premature to

discuss either of those issues before determining, as a threshold
matter, whether the defendants violated Gumbs’s rights under the
Fourth and Fourteenth Amendments when they searched his home.
THE COURT will, however, address the defendants’ argument that
Gumbs should not be permitted to amend the Second Amended Complaint
to add a claim for loss of property, i.e., his safe and its
contents.

To the extent that Gumbs is attempting to amend the

pleadings at this stage, and through briefing, we agree with the
defendants.

See Warfield v. SEPTA, 460 Fed.Appx. 127, 132 (3d Cir.

2012) (“A plaintiff may not amend a complaint by raising arguments
. . . in a brief in opposition to a motion for summary judgment.”);
Frederico v. Home Depot, 507 F.3d 188, 202 (3d Cir. 2007); Torske
v. DVA Health & Nutrition GmbH, No. 11–3609, 2013 WL 1848120, at *5
(D.N.J. Apr.30, 2013) (citation omitted) (“[I]t is axiomatic that a
plaintiff may not amend his complaint through later briefing[.]”)
We note, however, that the existing claims appear to encompass the
damages that Gumbs seeks through such amendment.

(See 4-4-11

Screening Op. at 13 n.1 (“[T]he scope of damages available [here]

8

is sufficient to encompass Plaintiff’s claim that he was
permanently deprived of the jewelry contained in the box safe.”).)
IV.

CONCLUSION

FOR GOOD CAUSE APPEARING, the Motion will be denied insofar as
it concerns the issue of standing, and denied without prejudice in
all other respects.

The Cross Motion will be denied insofar as

Gumbs there attempts to amend the Second Amended Complaint, and
denied without prejudice in all other respects.

The Court will

issue a separate Order.
s/ Mary L. Cooper
.
MARY L. COOPER
United States District Judge
Date:

June 14, 2013

9