GUMBS v. O'CONNOR et al
Filing
67
OPINION. Signed by Judge Mary L. Cooper on 6/12/2012. (gxh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
:
: Civil Action No. 10-1520 (MLC)
Plaintiff,
:
:
v.
:
O P I N I O N
:
DETECTIVE JOHN O’CONNOR, et al., :
:
Defendants.
:
:
KEVIN BRADLEY GUMBS,
COOPER, District Judge
Plaintiff, Kevin Bradley Gumbs, brought this action
concerning the constitutionality of a search conducted at his
residence, as well as his subsequent arrest and prosecution.
Certain claims asserted in the Complaint have already been
dismissed.
(See dkt. entry no. 21, 4-4-11 Order; dkt. entry no.
20, 4-4-11 Op.)
Plaintiff then filed an Amended Complaint (dkt.
entry no. 24), which was dismissed.
(Dkt. entry no. 27).
Plaintiff later filed a Second Amended Complaint.
entry no. 61.)
(Dkt.
This was permitted pursuant to an Opinion and
Order granting in part and denying in part his motion to amend
his claims; the only remaining claims are Fourth Amendment
challenges to the search of his residence conducted on the
evening of May 2-3, 2008, which resulted in the confiscation of a
small safe containing cash and jewelry, asserted against the
Defendants John O’Connor, James Lopez, and G. Rivera.
entry no. 59.)
(Dkt.
Now pending before the Court is a motion for
summary judgment on behalf of all remaining defendants.
(Dkt.
entry no. 41; see dkt. entry no. 60.)1
I.
BACKGROUND
Defendants assert in support of the motion the following
undisputed facts.
The Monmouth County Narcotic Strike Force had
an active investigation at 191 Forest Avenue, Plaintiff’s
residence, beginning January 17, 2008, based upon reports of
illegal drug activity.
On May 2, 2008, at approximately 5:40
p.m., Lopez and O’Connor went by 191 Forest Avenue and observed
Plaintiff standing in the doorway of a vehicle being driven by a
white male.
After the officers’ observations, they began
surveillance of the residence.
Lopez and O’Connor observed both men depart the driveway and
enter the residence.
When the driver left the residence, Lopez
and O’Connor followed the car he was driving.
On leaving the
residence, the driver almost collided with another vehicle.
When
the driver made a left turn at an intersection without signaling,
the officers made a motor vehicle stop.
and his speech was impaired.
The driver was trembling
When he exited the vehicle, he moved
1
The Court previously found that the Fourth Amendment
claims proposed to be asserted in the Second Amended Complaint
were identical to those already asserted against Defendant John
O’Connor, but that the proposed amendment would merely identify
the fictitious defendants who also participated in the search of
Plaintiff’s residence and the seizure of the small safe. (Dkt.
entry no. 59.) In light of the pending motion for summary
judgment, the newly-named defendants James Lopez and G. Rivera
have joined in the pending motion for summary judgment.
2
his tongue in a manner leading the officers to believe he was
attempting to hide evidence.
Eventually, the driver spit out a
small plastic wrapper containing a white rock-like substance,
suspected of being cocaine, and several blue tablets, suspected
of being Roxicodone.
During questioning, the driver stated that
he had picked up the drugs for a friend.
He further stated that
he and Plaintiff went into 191 Forest Avenue, went upstairs,
where Plaintiff bagged some “hard” and “blues,” and payment was
exchanged.
The driver stated that he had purchased drugs from
Plaintiff several times.
The driver was shown a photograph of
Plaintiff, whom he identified as the person who sold him the
drugs in his possession that day, and who was known as “Kevin.”
O’Connor and Lopez remained with the driver while he communicated
with two persons who sought to buy drugs from him, resulting in
the arrests of several people.
Lopez contacted Assistant Prosecutor James Jones the same
day and advised him about the status of the investigation.
Jones
concluded that there was probable cause to seek a criminal
complaint and arrest warrant.
O’Connor on the same day then
prepared several criminal complaints and warrants for Plaintiff’s
arrest, most of which were issued on May 6, 2008; the date on one
is not entirely legible, but it appears that it could be May 2,
2008.
(Motion, Ex. H.)
It is undisputed that, at approximately 11:30 p.m. the same
day (May 2, 2008), O’Connor, Lopez, and Rivera returned to 191
3
Forest Avenue to arrest Plaintiff.
It is undisputed that the
officers had not sought and did not possess any search warrant
for the premises.
As noted above, it is not clear whether the
officers possessed an arrest warrant.
Patricia Rahner met the
officers at the door and advised that Plaintiff was not at home.
The parties are not in agreement as to the events that then
transpired.
Defendants contend that Rahner, subsequently
identified by Plaintiff as a co-owner (presumably with himself) of
the home, gave consent for the officers to search for Plaintiff
inside the home.
It is not clear whether Defendants contend that
Rahner gave the consent orally or signed a Consent to Search
form.
Although Plaintiff was not found inside the home, officers
did locate a small safe under a bed and advised Rahner that they
had information that controlled dangerous substances were in the
room.
The officers state that Rahner reported that the safe
belonged to her, but that Plaintiff “possibly” stored things in
it.
The officers state that Rahner consented to a search of the
safe but stated that she did not know where the key was.
The
officers state that Rahner signed a “Consent to Search” form and
was advised that a K-9 sniff would be done to determine if there
were drugs inside.
The “Consent to Search” form states:
I, Patricia Rahner , having been informed of my
constitutional rights; first, that I may require that a
search warrant be obtained prior to any search being
made; second, that I may refuse to consent to any
search; third, that anything which may be found as a
result of this search which is subject to seizure can
4
and will be seized and used against me in a criminal
prosecution; fourth, that I may revoke my consent to
search at any time; and fifth, that I may consult with
anyone of my choosing before I make a decision to waive
my rights. By consenting to this search I hereby
authorize
Ptl. Jason Lopez and Det. O’Connor
(members of the Keansburg Police Department), to
conduct a complete search of the
X
as
premises or
191
Forest Ave.
vehicle under my control described
safe that was located under the bed
This written permission is given by me voluntarily and
without threats or promises of any kind being made to
me.
X I hereby expressly waive my right to be physically
present during the execution of this search.
P Rahner
Signature
(Motion, Ex. D.)
May 2, 08
Date
The consent form is dated, but the time of the
consent is not noted.
Thus, the Consent to Search form is
ambiguous as to whether it referred to the initial search of the
premises or only to the search of the safe.
The officers state that a K-9 unit was called to the
residence and reacted positively, Rahner found a key to the safe,
it was opened and contained $335.17 in cash and some jewelry, and
the safe and its contents were removed from the home.
Defendants
report that the safe and jewelry were returned to Rahner on May
28, 2008.
The cash apparently has not been returned.
In opposition to the motion, Plaintiff has supplied Rahner’s
affidavit stating:
5
On the Evening of May 2nd 2008, around 11pm, and all
true to the best of my knowledge.
1
Keansburg Detectives John O’Conner [sic] and
Detective Jason Lopez came to my home, at the
above address in the evening; I distinctly recall
them because they identified themselves. Other
officers in the group were familiar to me. ...
[A]ll of us have been respectable working class
productive citizens of the town.
•
•
I was informed they were looking for Kevin Gumbs
•
I told them he was not at home
•
I was told they had a warrant for his arrest.
•
2
They came to the front door
I asked to see the warrant
up papers, further than an
asked to handle the papers
to be able to read. I was
let you read them after we
don’t have to.”
and the detective held
arms reach from me. I
from his hand in order
told, “No. Kevin can
have arrested him, we
Our conversation continued at my front door (in my
night clothes) for at least 10 minutes, very difficult
to obtain information from the officers. Verbally they
were very forceful. I was informed having the warrant
for his arrest allows them entrance into the house to
“Look Around”. I inquired if a search warrant was
needed? Having wanted to co-operate but at the same
time felt need to protect the rights and privacy of my
family from this unfamiliar invasion and intrusion. I
did not feel the situation was safe. Felt volatile,
hostile, and explosive. Everything was very confusing.
They repeatedly pressed for access. Eventually I
allowed them entrance understanding they were only
looking for Kevin and would not be searching my
home. My daughter accompanied Detective O’Connor
and Detective Lopez upstairs; I remained
downstairs.
Once in my home there were comments made and I was
questioned:
•
“Just tell us where he keeps the drugs!”
•
Do you know he is selling drugs out of the
home?
6
•
So this is what drug money does, as they
glanced around my home.
•
You know he sells crack to kids!
I called Kevin on his cell phone and Detective
O’Conner [sic] spoke to Kevin. After their
conversation it seemed like they were never
leaving.
Outside my home, the entire situation was causing
a scene. The patrol car had their lights
flashing. The officers were armed and vested.
Surrounding neighbors were frightened.
The rest of the premises were search[ed] for
Kevin, including the garage. At which time the
officer notice a gate connecting the back yards
between my fathers’ home and mine.
This was referred to as an escape route. An
officer implying this was a plan imposed and
guarded by the entire family. The tone and
inflection of everybody voice was demeaning. (The
additional gate on my fathers end has been in
place since some time in the 60s, and the gate on
the Forest Ave side was installed in 1998 when we
acquired the house)
Officers came down from being upstairs with a
safe. They said I should open it. It didn’t
belong to me, and I didn’t know the combination or
have a key. I was questioned what was in the
safe, and who did it belong to. They said they
had enough reason to believe the safe contained
drugs. By not opening it for them I was not cooperating and covering for Kevin. They took the
safe out of the house, and called for a K-9 unit.
My daughter Patricia eventually called an
attorney, who asked to speak to the detectives,
they refused. And made their way out of the home
at that time.
Patricia E Rahner [signed]
(Dkt. entry no. 52, Opposition, Ex. A.)
Plaintiff was arrested on May 6, 2008; the charges against
him were eventually dropped.
7
II.
A.
SUMMARY JUDGMENT
Federal Rule of Civil Procedure 56
A district court grants summary judgment, as to any claim or
defense, “if the movant shows that 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).
A party asserting that a fact cannot be, or is genuinely
disputed, must support the assertion by citing to particular parts
of materials in the record, or by showing that the materials cited
do not establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact.
Fed.R.Civ.P. 56(c)(1). Nevertheless, the court
may consider other materials in the record. Fed.R.Civ.P. 56(c)(3).
Furthermore:
If a party fails to properly support an assertion of fact
or fails to properly address another party’s assertion
of fact as required by Rule 56(c), the court may:
(1)
give an opportunity to properly support or address
the fact;
(2)
consider the fact undisputed for purposes of the
motion;
(3)
grant summary judgment if the motion and supporting
materials - including the facts considered
undisputed - show that the movant is entitled to
it; or
(4)
issue any other appropriate order.
Fed.R.Civ.P. 56(e).
No genuinely triable issue of material fact exists when the
movant demonstrates – based on the submitted evidence, and
8
viewing the facts in the light most favorable to the non-movant –
that no rational jury could find in the non-movant’s favor.
Ambruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994).
Thus, the threshold inquiry is whether “there are any genuine
factual issues that properly can be resolved only by a finder of
fact because they may reasonably be resolved in favor of either
party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986).
In deciding whether triable issues of material fact
exist, a court must view the underlying facts and draw all
reasonable inferences in favor of the non-movant.
See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The movant bears the burden of showing no genuine issue of
material fact, and the non-movant opposes the motion by
presenting affirmative evidence to the contrary.
U.S. at 256-57.
Anderson, 477
Once the movant has properly supported a showing
of no triable issue of fact and of an entitlement to judgment as
a matter of law, the “opponent must do more than simply show that
there is some metaphysical doubt as to the material facts.”
Matsushita, 475 U.S. at 586 (citations omitted); see Anderson,
477 U.S. at 247-48 (“By its very terms, this standard provides
that the mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be no
genuine issue of material fact.”).
9
What the non-movant must do is “go beyond the pleadings and
by [its] own affidavits, or by the ‘depositions, answers to
interrogatories, and admissions on file,’ designate ‘specific
facts showing that there is a genuine issue for trial.’”
Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986); see Lujan v. National
Wildlife Fed’n, 497 U.S. 871, 888 (1990) (“object of [former Rule
56(e), now Rule 56(c)] is not to replace conclusory allegations of
the complaint ... with conclusory allegations of an affidavit”);
Anderson, 477 U.S. at 249; see also Big Apple BMW v. BMW of N.
Am., 974 F.2d 1358, 1363 (3d Cir. 1992) (“To raise a genuine
issue of material fact, ... the opponent need not match, item for
item, each piece of evidence proffered by the movant,” but must
“exceed[] the ‘mere scintilla’ threshold and ... offer[] a
genuine issue of material fact.”).
A movant need not affirmatively disprove the other party’s
case; the movant may move on the ground that the non-movant lacks
evidence “sufficient to establish the existence of an element
essential to that party’s case.”
Celotex, 477 U.S. at 322-23.
But the movant bears the burden of demonstrating the lack of
evidence in the record to support the non-movant’s claims.
See,
e.g., Haywood v. Nye, 999 F.Supp. 1451, 1463 (D. Utah 1998);
Andrews v. Crump, 984 F.Supp. 393, 402-03 (W.D.N.C. 1996).
B.
New Jersey Local Civil Rule 56.1
New Jersey Local Civil Rule 56.1(a) requires that on summary
judgment motions, both the movant and the non-movant furnish a
10
statement identifying what each side deems to be the material
facts, so that the Court can determine if a genuine dispute
exists.
The commentary notes that “[t]he Rule 56.1 statement is
viewed by the Court as a vital procedural step, since it
constitutes and is relied upon as a critical admission of the
parties.”
The commentary specifies the content and format of the
statement: e.g., the assertions must be set out in separately
numbered paragraphs; each fact must be supported by a citation to
an affidavit.
III.
DISCUSSION
“A ‘search’ occurs when an expectation of privacy that
society is prepared to consider reasonable is infringed.
A
‘seizure’ of property occurs where there is some meaningful
interference with an individual’s possessory interests in that
property.”
U.S. v. Jacobsen, 466 U.S. 109, 113 (1984) (footnote
and citation omitted).
“[V]alid warrants to search property may
be issued when it is satisfactorily demonstrated to the magistrate
that fruits, instrumentalities, or evidence of crime is located on
the premises,” even if “the owner or possessor of the place to be
searched is not then reasonably suspected of criminal involvement.”
Zurcher v. Stanford Daily, 436 U.S. 547, 559-60 (1978).
“It is
well settled under the Fourth and Fourteenth Amendments that a
search conducted without a warrant issued upon probable cause is
‘per se unreasonable ... subject only to a few specifically
established and well-delineated exceptions.’”
11
Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973) (quoting Katz v. United
States, 389 U.S. 347, 357 (1967)).
Those exceptions include
search incident to arrest, search made in “hot pursuit,” and
search pursuant to consent.
Katz, 389 U.S. at 357-58.
For a search to be constitutional based on consent, the
consent must have been “voluntarily given, and not the result of
duress or coercion, express or implied.”
248.
Bustamonte, 412 U.S. at
“Voluntariness is a question of fact to be determined from
all the circumstances,” Bustamonte, 412 U.S. at 248-49, and
resolution of that question must take account of “subtly coercive
police questions, as well as the possibly vulnerable subjective
state of the person who consents.”
412 U.S. at 229.
Among the factors relevant to a determination of
voluntariness is the extent to which police suggest that they can
obtain a warrant if consent is not given.
When evidence exists to show ... -- that a
defendant believed he must consent -- such evidence
weighs heavily against a finding that consent was
voluntarily given. And when that belief stems directly
from misrepresentations by government agents, however
innocently made, we deem the consent even more
questionable.
[United States v. Molt, 589 F.2d 1247, 1251-52 (3d Cir.
1978).]
The question of voluntariness often turns on the
language the police use in indicating that they will
seek a warrant if they do not get the defendant’s
consent. When the police state that they will seek to
obtain a warrant if consent is not given, there is
generally no coercion absent other factors. However,
when the police give the impression that the obtainment
of the warrant will be automatic, there is a strong
12
presumption of coercion. In a case involving a similar
situation, our court of appeals stated:
To the extent that some versions of [the police’s]
statement suggest that acquiring the warrant would be a
foregone conclusion, [the police] might have conveyed
to [the defendants] the impression that they had no
choice but to consent. On the other hand, if the
district court found that [the police officer] clearly
indicated to [the defendant] that absent consent, he
would only seek to obtain a warrant, and that a
magistrate would first have to determine that probable
cause existed, such a finding would not militate at all
against a finding of voluntary consent.
United States v. Sebetich, 776 F.2d 412, 425 (3d Cir.
1985), reh’g denied, 828 F.2d 1020 (1987), and cert.
denied, 484 U.S. 1017 (1988) (emphasis in original).
United States v. Flores, 1991 WL 171394, *10-11 (E.D. Pa. Aug.
29, 1991) (citations omitted), aff’d, 970 F.2d 900 (3d Cir. 1991)
(Table).
The person giving consent to the search also must have the
authority to do so.
(1974).
United States v. Matlock, 415 U.S. 164, 171
Thus, consent may be given by a third party “who
possessed common authority over or other sufficient relationship
to the premises or effects sought to be inspected.”
Id.
The authority which justifies the third-party consent
does not rest upon the law of property, with its
attendant historical and legal refinements, but rests
rather 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 co-inhabitants 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.
Id. at 171, n.7 (citations omitted).
Cf., e.g., Frazier v. Cupp,
394 U.S. 731, 740 (1966) (by allowing cousin use of a duffel bag,
13
and leaving it in cousin’s home, cousin possessed authority to
consent to its search notwithstanding owner’s allegation that
cousin had permission to use only one compartment within the
bag); Stoner v. California, 376 U.S. 483, 488-90 (1964) (search
of hotel room cannot rest upon consent of hotel proprietor in
absence of indication that proprietor has been authorized by
occupant to permit police to search occupant’s room); United
States v. Kelly, 529 F.2d 1365 (8th Cir. 1976) (consent given by
common carrier does not satisfy Fourth Amendment).
The movants here are not entirely clear, as to the initial
search of the premises, whether they are relying upon oral
consent or the consent form.
ambiguous.
Certainly, the consent form is
There is also substantial evidence to contradict the
contention that Rahner’s consent, whether oral or written, was
voluntary.
It is undisputed that officers came to Rahner’s door
late at night.
In her affidavit, Rahner states that police
questioned her at her door, while she was in her nightclothes,
for several minutes, while their lights were creating a
disturbance in the neighborhood, while brandishing a purported
arrest warrant that they told her gave them authority to search
her premises, while refusing to permit her to read the alleged
warrant.
Further, there is evidence that Rahner understood that
police would search only for Plaintiff, not for any other
purpose.
It is not clear that Rahner understood that she had a
14
right to refuse consent to enter.
There is also evidence that
Rahner told police that the safe was not hers; in addition, the
safe was found under a bed, locked, so it is not clear that she
had any authority to consent to a search of the safe, even if she
was a co-owner of the premises.
Finally, there is evidence that
the police left as soon as Rahner contacted an attorney, raising
an inference that police knew their conduct was not proper.
Thus, there is a material dispute of fact regarding whether the
Defendants properly obtained consent for the searches of the
premises and of the safe they conducted that precludes the grant
of summary judgment.
Defendants have argued, in the alternative, that they are
entitled to summary judgment on grounds of “qualified immunity.”
Qualified immunity shields federal and state officials
from money damages unless a plaintiff pleads facts
showing (1) that the official violated a statutory or
constitutional right, and (2) that the right was
“clearly established” at the time of the challenged
conduct. We recently reaffirmed that lower courts have
discretion to decide which of the two prongs of
qualified-immunity analysis to tackle first.
Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2080 (2011) (citations
omitted).
As described above, the law regarding voluntary consent to
search, including consent by a third party, has been established
for many years.
Considering the evidence in the light most
favorable to Plaintiff, as this Court must, Defendants have not
established an entitlement to qualified immunity.
15
IV.
CONCLUSION
The motion for summary judgment will be denied.
The Court
will issue an appropriate order.
s/ Mary L. Cooper
MARY L. COOPER
United States District Judge
Dated:
June 12, 2012
16
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?