ZIMMER et al v. THE NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY ("DCP&P") et al
OPINION filed. Signed by Judge Freda L. Wolfson on 10/26/2017. (mmh)
*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CHRISTOPHER ZIMMER, SR. and :
THE NEW JERSEY DIVISION OF :
PERMANENCY, LISA VON PIER, in :
her official capacity as the Director of the :
New Jersey Division of Child Protection :
and Permanency and the Assistant :
Commissioner of the New Jersey :
Department of Children and Families, :
ALLISON BLAKE, in her official :
capacity as the Commissioner of the New :
Jersey Department of Children and :
Families, MONIQUE DYKES, in her :
individual capacity, and MICHELLE :
MARCHESE, in her individual capacity,
Civ. Action No. 15-2524 (FLW) (DEA)
WOLFSON, United States District Judge:
Plaintiffs Christopher Zimmer, Sr. and Nicole Zimmer (collectively, “Plaintiffs”) bring
the instant action, pursuant to 42 U.S.C. § 1983, against Defendant Michelle Marchese
(“Defendant”),1 alleging that Defendant violated Plaintiffs’ Fourth Amendment rights by
Plaintiffs’ Complaint originally asserted a multitude of constitutional claims against the New
Jersey Division of Child Protection and Permanency (the “DCP&P”), Lisa Von Pier, in her
official capacity as Director of the DCP&P and Assistant Commissioner of the New Jersey
Department of Children and Families (the “DCF”), Allison Blake, in her official capacity as
Commissioner of the DCF, Monique Dykes, in her individual capacity, and Michelle Marchese,
in her individual capacity. See Compl. However, as discussed further in the procedural history
section of this Opinion, pursuant to this Court’s January 20, 2016 Order, the only remaining
entering their home without a warrant and without consent. Presently before the Court is
Defendant’s Motion for Summary Judgment, as well as Plaintiffs’ Cross-Motion for Summary
Judgment as to liability. For the reasons that follow, Defendant’s Motion is GRANTED, and
Plaintiffs’ Cross-Motion is DENIED.
Defendant is a caseworker for the New Jersey Department of Division of Child
Protection and Permanency (“DCP&P”). This matter arises out of Defendant’s warrantless entry
into Plaintiffs’ home to investigate a child welfare referral. The following facts are undisputed,
except where noted, and are viewed in the light most favorable to Plaintiffs, the non-moving
party on Defendant’s Motion for Summary Judgment.2
At approximately 10:00 a.m. on the morning of January 13, 2015, Defendant arrived at
Plaintiffs’ home to investigate a child welfare referral that the DCP&P had received six days
earlier, regarding the homeschooling of Plaintiffs’ minor son, C.Z. Deposition Transcript of
Michelle Marchese (“Marchese Dep.”), at 34:16-36:6. Defendant parked her vehicle across the
street from Plaintiffs’ home, traversed Plaintiffs’ porch, and knocked on the front door of
Plaintiffs’ home. Id. at 36:7-13. Mr. Zimmer answered the front door, and Defendant identified
herself as a caseworker from the DCP&P. Def.’s Statement of Material Facts (“DSMF”), ¶ 2;
claims are Plaintiffs’ warrantless search claims against individual Defendant Marchese. See ECF
Because the Court ultimately concludes that Defendant is entitled to summary judgment on all
of Plaintiffs’ claims, thereby resolving the instant matter in its entirety and mooting the need to
consider Plaintiffs’ Cross-Motion for Summary Judgment, the Court need not view the facts in
the light most favorable to Defendant. See Beenick v. LeFebvre, 684 F. App'x 200, 205–06 (3d
Cir. 2017) (“By proceeding with Defendants' motion first, the District Court viewed the evidence
in the light most favorable to Beenick and concluded that Defendants were entitled to summary
judgment on all of his claims. That conclusion ended the case and mooted any need to consider
Beenick's cross-motion for partial summary judgment.”).
Pls.’ Response to DSMF (“PRSMF”), ¶ 2. Mr. Zimmer testified that Defendant refused to
answer his questions as to why she was there; instead, Defendant informed Mr. Zimmer that she
would discuss the purpose of her visit once inside the home. Deposition Transcript of
Christopher Zimmer, Sr. (“Zimmer, Sr. Dep.”), at 22:12-23:3.
Following their brief conversation at the front door, Mr. Zimmer refused to allow
Defendant to enter his home, stating that she did not have his consent to enter the house. Id. at
23:1-13. When pressed again by Mr. Zimmer as to the purpose for her visit, Defendant
explained that she was at Plaintiffs’ home to investigate the homeschooling of C.Z. Id. at 30:2131:21. Mr. Zimmer expressed his displeasure with Defendant’s visit, and noted that
approximately one week earlier, a childhood acquaintance of C.Z. had threatened to call the
DCP&P on the family. Marchese Dep. 36:20-37:7. Mr. Zimmer indicated his belief that it was
this individual who had contacted the DCP&P. Id. at 37:3-23.
During his deposition, Mr. Zimmer testified that after he refused to permit Defendant to
enter his house, Defendant insisted that Mr. Zimmer did not have a choice, stating, “You need to
let me in,” Zimmer, Sr. Dep. 23:5-20, as well as asserting that Mr. Zimmer had “ten minutes to
let her in or else.” Id. at 23:9-25. Mr. Zimmer further testified that Defendant would not clarify
what she meant by “or else.” Id. at 24:1-2. Mr. Zimmer then directed Defendant to wait outside
in her vehicle while he called the police. Id. at 24:1-25:1; 41:23-25. It is undisputed that
Defendant did not advise Plaintiffs of their constitutional rights, either during this initial
encounter or at any subsequent point during the course of Defendant’s investigation. Marchese
Dep. 39:17-25; Plaintiffs’ Counterstatement of Material Facts (“PCMF”), ¶¶ 15-16; Defendant’s
Response to PCMF (“DRMF”), ¶¶ 15-16.
Belvidere Township Chief of Police Matthew Scott responded to Mr. Zimmer’s call.
DSMF ¶ 5; PRSMF ¶ 5. Because Belvidere is a relatively small town, Plaintiffs were already
familiar with Chief Scott prior to this incident. Id.; Zimmer, Sr. Dep. 25:6-17. Upon his arrival,
Chief Scott spoke briefly with Defendant at her car. Deposition Transcript of Chief Matthew
Scott (“Chief Scott Dep.”), at 14:6-15:10. Chief Scott then approached Plaintiffs’ front door and
was invited inside the house, where he met with both Mr. and Mrs. Zimmer. Id. at 17:1-25;
Zimmer, Sr. Dep. 27:4-16. During their conversation inside the home, Defendant waited outside
in her vehicle. Chief Scott Dep. 17:1-25; Zimmer, Sr. Dep. 27:4-16.
Chief Scott and Mr. Zimmer offer different recollections of their conversation inside
Plaintiffs’ home. On one hand, Mr. Zimmer testified that Chief Scott explained to Plaintiffs that
Defendant was a caseworker for DCP&P, and that he “believe[d] [Chief Scott] said to us
something about she will come in and ask you a few questions or something along those lines.”
Zimmer, Sr. Dep. 28:3-20. Mr. Zimmer further testified that Chief Scott did not advise Plaintiffs
of their rights, and told Plaintiffs “that it would be a lot easier to let [Defendant] in.” Id. at
45:17-46:5. Chief Scott disputes Mr. Zimmer’s testimony, maintaining that he did advise
Plaintiffs of their rights, including their right to “deny [Defendant] entry into their residence.”
Chief Scott Dep. 19:10-15. Nonetheless, Chief Scott does not dispute that he advised Plaintiffs
that, so long as they “had no issues,” it would be “easier to let [Defendant] in. Id. at 19:10-15.
Chief Scott further testified that Plaintiffs found his approach agreeable, and that it was his
understanding that Plaintiffs would allow Defendant into their home to conduct the investigation.
Id. at 19:10-20:21. At the conclusion of his conversation with Plaintiffs, Chief Scott explained
that he was going to go back outside to speak with Defendant before departing the home.
Zimmer, Sr. Dep. 29:7-9. Mr. Zimmer offered the following testimony regarding his
understanding of what Defendant would do after Chief Scott went back out to speak with her:
Q: What was your understanding about what Michelle Marchese would then do next?
Mr. Zimmer: There wasn’t an understanding from me. It was either I let her in the house
or I understand from my previous history of seeing things I have trouble coming, so I had
to let her in the house.
Q: Let me unpack that. Is that your understanding or is that the understanding
communicated to you by the police officer?
Mr. Zimmer: No, it is not communicated by the police officer. That is what I have seen
happen and I did not want that to happen. . . .
Q: Where have you seen that happen before?
Mr. Zimmer: Everywhere in the world.
Id. at 29:10-25.
Chief Scott then left the home and spoke with Defendant outside of her vehicle. DSMF ¶
9; PRSMF ¶ 9. Plaintiffs were not present for this conversation. See id. Defendant testified that
Chief Scott told her that he “encouraged [Plaintiffs] to meet with [Defendant] and to comply, and
that they were willing to meet with [her].” Marchese Dep. 40:16-17. Similarly, Chief Scott
testified that he advised Defendant, “You can go in. They will let you in,” before entering his
vehicle and departing the scene without any further interaction. Chief Scott Dep. 21:14-23.
Defendant subsequently approached Plaintiffs’ home for the second time and knocked on
the front door, which, once again, was answered by Mr. Zimmer. Zimmer, Sr. Dep. 40:7-12.
Mr. Zimmer testified that after opening the front door, Defendant just “just walked into the
house,” despite not having been expressly invited inside by Mr. Zimmer. Id. at 40:13-20.
Nonetheless, Plaintiffs do not dispute that they “allowed Marchese to come into their home.”
PRSMF ¶ 9; DSMF ¶ 9. Once inside the home, Mr. Zimmer directed Defendant to sit at the
dining room table. Zimmer, Sr. Dep. 40:21-25; 51:17-21; Marchese Dep. 41:18-25. While
seated at the table, Defendant asked a series of questions to Mr. Zimmer, Mrs. Zimmer, and C.Z.
Zimmer, Sr. Dep. 51:17-52:25. Mr. Zimmer described the way that the parties interacted at the
table as “conversational,” and further indicated that they spoke for over an hour. Id. at 58:1859:3. As she prepared to leave the home, Defendant notified Plaintiffs that she would follow up
with the family regarding ways they might “tweak” their homeschooling routine. Deposition
Transcript of Nicole Zimmer (“Nicole Zimmer Dep.”), at 36:1-37:5.
On April 9, 2015, Plaintiffs filed a six-count complaint (the “Complaint”) against
defendants DCP&P, Lisa Von Pier, in her official capacity as Director of the DCP&P and
Assistant Commissioner of the New Jersey Department of Children and Families (the “DCF”),
Allison Blake, in her official capacity as Commissioner of the DCF, Monique Dykes, in her
individual capacity, and Michelle Marchese, in her individual capacity. See Compl., ECF No. 1.
On January 20, 2016, this Court entered an Opinion and corresponding Order dismissing
the majority of the claims asserted in the Complaint. ECF Nos. 13-14. Based on this Court’s
January 20, 2016 Opinion, the only remaining claims are Plaintiffs’ § 1983 and New Jersey Civil
Rights Act (“NJCRA”), N.J.S.A. 10:6-2 unreasonable search claims against Defendant
Marchese, asserted in Counts Four and Six of the Complaint, respectively. Id. In those Counts,
Plaintiffs allege that Defendant Marchese violated their constitutional rights by conducting a
warrantless entry into their home without their consent. See Compl. ¶¶ 137-45; 155-57.
On March 31, 2017, Defendant Marchese moved for summary judgment on Counts Four
and Six of the Complaint. ECF No. 26. Plaintiffs filed their opposition on June 5, 2017, ECF
No. 31, and Defendant filed her reply on June 9, 2017. ECF No. 33.
Summary judgment is appropriate where the Court is satisfied that “there is no genuine
issue as to any material fact and that the movant is entitled to a judgment as a matter of law.”
FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Orson, Inc. v.
Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir. 1996). A factual dispute is genuine only if
there is “a sufficient evidentiary basis on which a reasonable jury could find for the non-moving
party,” and it is material only if it has the ability to “affect the outcome of the suit under
governing law.” Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over irrelevant or
unnecessary facts will not preclude a grant of summary judgment. Anderson, 477 U.S. at 248.
“In considering a motion for summary judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence; instead, the non-moving party's
evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.’” Marino v.
Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004).
The moving party bears the burden of demonstrating the absence of a genuine issue of
material fact. Celotex Corp., 477 U.S. at 322. Once the moving party has satisfied this initial
burden, the opposing party must identify “specific facts which demonstrate that there exists a
genuine issue for trial.” Orson, 79 F.3d at 1366; see Gleason v. Norwest Mortg. Inc., 243 F.3d
130, 138 (3d Cir. 2001) (“A nonmoving party has created a genuine issue of material fact if it has
provided sufficient evidence to allow a jury to find in its favor at trial.”). The non-moving party
must present “more than a scintilla of evidence showing that there is a genuine issue for trial.”
Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005). Not every issue of fact is
sufficient to defeat a motion for summary judgment; issues of fact are genuine “if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S.
at 248. Additionally, the nonmoving party cannot rest upon mere allegations; he or she must
present actual evidence that creates a genuine issue of material fact. See FED. R. CIV. P. 56(e);
Anderson, 477 U.S. at 249. In conducting a review of the facts, the nonmoving party is entitled
to all reasonable inferences and the record is construed in the light most favorable to that party.
See Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). Accordingly,
it is not the Court's role to make findings of fact, but to analyze the facts presented and determine
if a reasonable jury could return a verdict for the nonmoving party. See Brooks v. Kyler, 204
F.3d 102, 105, n.5 (3d Cir. 2000).
Finally, “[t]he standard by which the court decides a summary judgment motion does not
change when the parties file cross-motions.” Clevenger v. First Option Health Plan of New
Jersey, 208 F. Supp. 2d 463, 468 (D.N.J. 2002). Each party still bears the initial burden of
establishing the absence of a genuine dispute of material fact. Celotex Corp., 477 U.S. at 322.
“When ruling on cross-motions for summary judgment, the court must consider the motions
independently, and view the evidence on each motion in the light most favorable to the party
opposing the motion.” Parker v. Hanhemann Univ. Hosp., 234 F. Supp. 2d 478, 484–85 (D.N.J.
2002) (citing Williams v. Philadelphia Hous. Auth., 834 F.Supp. 794, 797 (E.D.Pa.1993), aff'd,
27 F.3d 560 (3d Cir.1994)). “That one of the cross-motions is denied does not imply that the
other must be granted.” Illinois Nat. Ins. Co. v. Wyndham Worldwide Operations, Inc., 85 F.
Supp. 3d 785, 794 (D.N.J. 2015).
Defendant moves for summary judgment on Plaintiffs’ Fourth Amendment claims,
arguing that her entry into Plaintiffs’ home was conducted reasonably and with consent, and
alternatively, that she is entitled to qualified immunity because her entry did not violate clearly
established law. In opposition, Plaintiffs contend that Defendant violated the Fourth
Amendment’s prohibition against unreasonable searches by entering Plaintiffs’ residence without
obtaining their voluntary consent.
Consent to Search
The Court first examines whether Defendant violated Plaintiffs’ Fourth Amendment
rights by entering Plaintiffs’ home without a warrant. I begin my analysis with the relevant
constitutional text. The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.
U.S. CONST. amend. IV.
The relevant Fourth Amendment protection in this case is “the right to be free in one's
home from unreasonable searches and arrests.” Pearson v. Callahan, 555 U.S. 223, 230 (2009);
see United States v. U.S. Dist. Court for E. Dist. of Mich., S. Div., 407 U.S. 297, 313 (1972)
(observing that “physical entry of the home is the chief evil against which the wording of the
Fourth Amendment is directed . . . .”). “It is a ‘basic principle of Fourth Amendment law’ that
searches and seizures inside a home without a warrant are presumptively unreasonable.” Groh v.
Ramirez, 540 U.S. 551, 559 (2004) (quoting Payton v. New York, 445 U.S. 573, 586 (1980)).
However, “because the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’ the
warrant requirement is subject to certain exceptions.” Brigham City, Utah v. Stuart, 547 U.S.
398, 403 (2006). For example, the Supreme Court has recognized exceptions to the warrant
requirement where: (1) voluntary consent has been obtained from a person with authority over
the premises to be searched; or (2) exigent circumstances exist. See United States v. Karo, 468
U.S. 705, 717 (1984) (recognizing consent and exigent circumstances as exceptions to the
warrant requirement); see also Michigan v. Fisher, 558 U.S. 45, 47 (2009) (observing that the
presumption that a warrantless search is unreasonable can be overcome, for example, where
officials must enter a home to render emergency assistance to an injured occupant); Couden v.
Duffy, 446 F.3d 483, 496 (3d Cir. 2006) (“There are several established exceptions to the warrant
requirement, however, including exigent circumstances and consent.”). In this case, Defendant
does not argue that an exigency justified the search; rather, Defendant seeks to invoke the
consent to search exception to the warrant requirement. Accordingly, this Court’s analysis
centers solely on the issue of whether Plaintiffs voluntarily consented to Defendant’s entry into
It is well-established that the Fourth Amendment’s prohibition against warrantless
searches does not apply “to situations in which voluntary consent has been obtained, either from
the individual whose property is searched, or from a third party who possesses common authority
over the premises.” Illinois v. Rodriguez, 497 U.S. 177, 181 (1990) (internal citation omitted);
see Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (“One of the specifically established
exceptions to the requirements of both a warrant and probable cause is a search that is conducted
pursuant to consent.”); United States v. Stabile, 633 F.3d 219, 230–31 (3d Cir. 2011). The
Supreme Court has “long approved consensual searches because it is no doubt reasonable for the
police to conduct a search once they have been permitted to do so.” Florida v. Jimeno, 500 U.S.
248, 250–51 (1991).3
In Fernandez v. California, 134 S. Ct. 1126 (2014), the Court discussed the purposes animating
the consent to search doctrine within the context of home searches:
It would be unreasonable—indeed, absurd—to require police officers to obtain a warrant
when the sole owner or occupant of a house or apartment voluntarily consents to a search.
The owner of a home has a right to allow others to enter and examine the premises, and
To justify a search based on consent, the government official has the burden of proving
that the consent was voluntarily given. United States v. Price, 558 F.3d 270, 278 (3d Cir. 2009).
To that end, consent “is ineffective if extracted by the state under threat of force or under claim
of government authority.” Good v. Dauphin Cty. Soc. Servs. for Children & Youth, 891 F.2d
1087, 1093 (3d Cir. 1989); see Schneckloth, 412 U.S. at 233 (“[I]f under all the circumstances it
has appeared that the consent was not given voluntarily—that it was coerced by threats or force,
or granted only in submission to a claim of lawful authority—then we have found the consent
invalid and the search unreasonable.”). “There is no talismanic definition of ‘voluntariness,’
mechanically applicable to the host of situations where the question has arisen.” Price, 558 F.3d
at 278 (internal quotation marks and citation omitted). Rather, voluntariness is “a question of
fact to be determined from the totality of all the circumstances.” Schneckloth, 412 U.S. at 227.
“Factors to consider include: the age, education, and intelligence of the subject; whether the
subject was advised of his or her constitutional rights; the length of the encounter; the repetition
or duration of the questioning; and the use of physical punishment.” Price, 558 F.3d at 278.
there is no reason why the owner should not be permitted to extend this same privilege to
police officers if that is the owner's choice. Where the owner believes that he or she is
under suspicion, the owner may want the police to search the premises so that their
suspicions are dispelled. This may be particularly important where the owner has a strong
interest in the apprehension of the perpetrator of a crime and believes that the suspicions
of the police are deflecting the course of their investigation. An owner may want the
police to search even where they lack probable cause, and if a warrant were always
required, this could not be done. And even where the police could establish probable
cause, requiring a warrant despite the owner's consent would needlessly inconvenience
everyone involved—not only the officers and the magistrate but also the occupant of the
premises, who would generally either be compelled or would feel a need to stay until the
search was completed.
Id. at 1132.
Additional factors include the “the setting in which the consent was obtained,” as well as “the
parties' verbal and non-verbal actions.” United States v. Givan, 320 F.3d 452, 459 (3d Cir.
While the aforementioned factors guide this Court’s analysis of whether consent was
given, the ultimate question is whether, based on the totality of the circumstances, Defendant had
an objectively reasonable basis for believing there was consent to search. See Jimeno, 500 U.S.
at 251 (“The standard for measuring the scope of [an individual’s] consent under the Fourth
Amendment is that of ‘objective’ reasonableness-what would the typical reasonable person have
understood by the exchange between the officer and the [individual].”); Rodriguez, 497 U.S. at
188 (observing that the “determination of consent to enter must be judged against an objective
standard.”); United States v. Walker, 529 F. App'x 256, 263 (3d Cir. 2013) (“A court is to
measure the scope of a suspect's consent using an objective standard to determine what a
reasonable person would have understood from the exchange between the officer and the
defendant.”). To that end, even where an official does not in fact obtain consent, the Fourth
Amendment is satisfied where the official “had a reasonable basis for believing that there had
been consent to the search.” United States v. Sanchez, 32 F.3d 1330, 1334 (8th Cir. 1994); see,
e.g., Seifert v. Rivera, 933 F. Supp. 2d 307, 316 (D. Conn. 2013) (holding that “it was objectively
reasonable for the [officials] to believe that [the plaintiff] had consented to their entry when she
stepped backwards from the open door,” even if the plaintiff did not in fact intend to consent to
In this case, Plaintiffs concede that the sole issue pertaining to the instant Motion is
whether Plaintiffs’ consent to search was coerced. See Pls.’ Opp. to Def.’s Mot. for Summ. J., 1
(“Only the issue of consent versus coercion is materially in dispute in this motion.”).4 Plaintiffs
maintain that their consent to search in this case was coerced, because: (1) it was procured as the
result of Defendant’s threatening statements upon her initial encounter with Plaintiffs; and (2)
genuine issues of fact exist regarding the substance of the conversation between Plaintiffs and
Chief Scott. Accordingly, the central issue for this Court is whether it was objectively
reasonable, based on the totality of the circumstances, for Defendant to believe that she had
consent to enter Plaintiffs’ home, and, whether the consent was given voluntarily.
At the outset, the Court finds unpersuasive Plaintiffs’ argument that, in light of
Defendant’s statements to Plaintiffs during their initial encounter, Plaintiffs’ consent was
coerced. According to Plaintiffs’ depiction of the facts, upon Defendant’s initial arrival to the
home, Mr. Zimmer and Defendant briefly discussed the purpose of her visit, and Mr. Zimmer
refused to allow Defendant to enter Plaintiffs’ home. Zimmer, Sr. Dep. 22:12-23:4. Mr. Zimmer
testified that Defendant responded to his refusal to consent by explaining that Mr. Zimmer did
not have a choice, stating, “You need to let me in,” and that Mr. Zimmer had “ten minutes to let
her in or else.” Id. at 23:5-25. Nonetheless, following those alleged statements, it is undisputed
The Court notes that in their Opposition to Defendant’s Motion for Summary Judgment,
Plaintiffs maintain that, once inside Plaintiffs’ home, Defendant asked questions “unrelated” to
her homeschooling investigation. Pls.’ Opp. to Def.’s Mot. for Summ. J., 8. For example,
Defendant asked C.Z. what he wanted to be when he grew up, and, after C.Z. responded that he
wanted to be a Marine scout sniper, Defendant asked him whether he liked to play the video
game Call of Duty. Marchese Dep. 51:1-17. “When an official search is properly authorized—
whether by consent or by the issuance of a valid warrant—the scope of the search is limited by
the terms of its authorization.” Walter v. United States, 447 U.S. 649, 656 (1980). As with
determining whether consent was given, the “standard for measuring the scope of a person's
consent is ‘objective reasonableness.’” Reedy v. Evanson, 615 F.3d 197, 225 (3d Cir. 2010)
(quoting Jimeno, 500 U.S. 248, 251 (1991)). Here, in light of the Plaintiffs’ express assertion
that only the issue of coercion is in dispute, the Court need not reach the issue of whether
Defendant’s questioning exceeded the scope of the consent given. Nonetheless, the Court
comments, without finding, that it appears that Defendant’s questions were consistent with a
that Mr. Zimmer again refused to allow Defendant to enter the home, and directed Defendant to
wait outside in her car while Mr. Zimmer called the police. Id. at 24:1-25:1.
Even accepting as true Mr. Zimmer’s account of the initial encounter, I cannot find that
Defendant’s allegedly threatening statements rendered her subsequent belief that Plaintiffs had
consented to her entry objectively unreasonable, because it is undisputed that Mr. Zimmer
expressly refused to consent even after Defendant’s statements. In that regard, at least one
Courts of Appeal has held that, where an individual initially refuses consent to search, but
subsequently consents, only the events following the individual’s initial refusal are relevant to
the voluntariness determination. See United States v. Welch, 683 F.3d 1304, 1309 (11th Cir.
2012) (“A person who actually says ‘no’ has not been coerced into saying ‘yes.’ Thus at least up
to the time Welch refused to consent, he cannot be said to have been coerced into consenting
involuntarily. That leaves, for analysis of coercion and voluntariness, what happened after he
said ‘no.’”); see also United States v. Thame, 846 F.2d 200, 204 (3d Cir. 1988) (upholding a
consensual search conducted after the defendant’s initial refusal to consent, where the initial
refusal to consent was honored, and circumstances following the defendant’s refusal indicated
that the subsequent consent was “freely given.”); United States v. Collins, 699 F.3d 1039, 1042
(8th Cir. 2012) (finding that a reasonable police officer could conclude that the defendant
voluntarily consented to the officer’s entry, despite the defendant’s initial refusal to consent,
where circumstances following the refusal did not indicate the presence of coercion). In Welch,
for example, the 11th Circuit affirmed the lower court’s finding that the occupant had voluntarily
consented to a search of his apartment, despite his initial refusal to consent to the search. See id.
at 1309. In that case, several officers approached the occupant with guns drawn, and asked the
occupant for his consent to search his apartment. Id. at 1306. The occupant refused to consent,
but later recanted his refusal after several minutes had passed by and the occupant spoke with
one of the officers. Id. In finding that the occupant voluntarily gave his consent, the Welch court
excluded from its analysis any consideration of the events preceding the occupant’s initial refusal
to consent, including the fact that the officials approached the occupant and asked for consent
with guns drawn. Id. at 1309. The court reasoned that the occupant “must not have felt coerced
into consenting when they first asked, because he declined to consent,” and therefore, confined
its voluntariness determination to the events occurring after the defendant refused consent. Id. I
find that reasoning persuasive here, and have not located any Third Circuit law to the contrary.
Similarly, here, because Mr. Zimmer refused to consent after Defendant’s alleged threats,
it follows that Mr. Zimmer’s refusal clearly indicates that he must not have felt coerced by
Defendant’s alleged statements. Accordingly, the Court will not consider Defendant’s allegedly
threatening declarations in its voluntariness determination, and will focus instead on the events
occurring after Mr. Zimmer’s initial refusal to consent.
The Court is also not persuaded by Plaintiffs’ argument that they were coerced into
consenting to the search based on the actions of Chief Scott. In the Court’s voluntariness
determination, it is important to distinguish the conduct of Chief Scott from that of Defendant.
While there may be a dispute of fact as to whether Chief Scott took coercive actions in procuring
Plaintiffs’ consent,5 it is undisputed that Chief Scott’s conversation with Plaintiffs occurred
Even if the Court were to consider Chief Scott’s conversation with Plaintiffs, it could not
conclude that Plaintiffs’ consent was coercively obtained as a result of that conversation.
Principally, Mr. Zimmer admitted that while he felt that he had no choice but to let Defendant
enter his home, that understanding was based on Mr. Zimmer’s general experience of what he
has seen happen “[e]verywhere in the world,” rather than on what had been “communicated by
[Chief Scott].” Zimmer, Sr. Dep. 29:16-25. Additionally, although Mr. Zimmer testified that
Chief Scott advised Plaintiffs that it would be easier to let Defendant in, id. at 45:17-46:5, that he
could not do anything about the fact that Defendant was there, id. at 28:12-13; and that “she will
come in and ask you a few questions,” id. at 28:14-16, the Court cannot find that those
while Defendant was waiting outside in her vehicle, and nothing in the record suggests that Chief
Scott informed Defendant that he had made any coercive statements in procuring Plaintiffs’
consent. Because the Court’s analysis is limited to whether it would be objectively reasonable
for an official in Defendant’s position to believe that Plaintiffs consented to the search, and
because Chief Scott’s conversation with Plaintiffs occurred outside of Defendant’s purview, that
conversation does not inform the voluntariness analysis.
Turning to the events occurring after Chief Scott’s conversation with Plaintiffs, the Court
finds that, based on the totality of the circumstances, Defendant had a reasonable basis for
believing that there was consent to enter Plaintiffs’ home. To that end, Defendant testified, and
Plaintiffs do not dispute, that, following Chief Scott’s conversation with Plaintiffs, Chief Scott
proceeded to Defendant’s vehicle, and explained to Defendant that he “encouraged [Plaintiffs] to
meet with [Defendant] and to comply, and that they were willing to meet with [Defendant].”
Marchese Dep. 40:16-17. Chief Scott confirmed as much during his deposition, testifying that
he relayed Plaintiffs’ concerns regarding the source of the inadequate homeschooling tip, and
advised Defendant, “You can go in. They will let you in,” before departing the scene without
any further interaction. Chief Scott Dep. 21:14-23.6 Based on Chief Scott’s unequivocal
statements constitute a “claim of lawful authority.” Schneckloth, 412 U.S. at 233. This is
particularly so in light of the fact that Plaintiffs, rather than Defendant, summoned Chief Scott to
While Defendant was aware that Chief Scott “encouraged” Plaintiffs to comply, it would strain
credulity to charge Defendant with knowledge of coercion solely on that basis, because mere
encouragement is insufficient to overbear an individual’s will. Although the circumstances may
be different if, for example, Chief Scott had informed Defendant that he had advised Plaintiffs
that they had no choice but to let Defendant in, or affirmatively asserted the right to enter under
the color of law, here, instead, Chief Scott’s statements to Defendant could not reasonably
inform Defendant that Plaintiffs only permitted the search under threats or force. Indeed, as the
Court has already discussed, Mr. Zimmer expressly refuted the notion that his understanding that
he had no choice but to let Defendant enter the home stemmed from his conversation with Chief
Scott. Zimmer, Sr. Dep. 29:10-21.
statement to Defendant regarding Plaintiffs’ consent, as well as the lack of any other indicia that
Defendant was aware, or reasonably should have been aware, that Chief Scott may have obtained
Plaintiffs’ consent under coercive circumstances, the Court cannot find that, upon approaching
Plaintiffs’ home for the second time, it was objectively unreasonable for Defendant to believe
that Plaintiffs consented to her entry.
Moreover, Plaintiffs’ conduct upon Defendant’s subsequent approach and entry into the
home further evinces that it was objectively reasonable for Defendant to believe that Plaintiffs
consented to the entry. Upon reaching the home for the second time, Mr. Zimmer answered the
front door. Zimmer, Sr. Dep. 50:7-15. While Mr. Zimmer testified that he felt he “had to let her
in,” the record is devoid of any evidence indicating that Defendant demanded entry, forced entry,
or that Mr. Zimmer attempted, either verbally or non-verbally, to deny her entry. Id. at 40:7-20.
To the contrary, Mr. Zimmer testified that no words were exchanged on the second encounter;
rather, Mr. Zimmer simply opened the door and Defendant walked into the house, albeit without
Mr. Zimmer having affirmatively invited her in. Id. at 40:14-20. Nonetheless, Plaintiffs concede
that they “allowed Marchese to come into their home.” PRSMF ¶ 9; DSMF ¶ 9. Based on that
testimony, the Court cannot conclude that a reasonable official would have understood Plaintiffs’
conduct, upon Defendant’s second encounter at the home, as either nonconsensual or as a
revocation of Plaintiffs’ previous consent given to Chief Scott.
Additionally, the Court cannot find that Mr. Zimmer’s silence and failure to affirmatively
invite Defendant into the home rendered Defendant’s belief that Plaintiffs consented to her entry
objectively unreasonable. To that end, consent need not be express, but may be implied from an
individual’s non-verbal conduct. See Reppert v. Marino, 259 F. App'x 481, 492 (3d Cir. 2007);
see also United States v. Grant, 375 F. App'x 79, 80 (2d Cir. 2010) (“[I]t is well settled that
consent may be inferred from an individual's words, gestures, or conduct. Thus a search may be
lawful even if the person giving consent does not recite the talismanic phrase: ‘You have my
permission to search.’”) (citation omitted). Here, Defendant approached Plaintiffs’ front door
under the reasonable belief, as a result of Chief Scott’s statement, that Plaintiffs consented to her
entry. Additionally, Mr. Zimmer’s subsequent conduct in opening the door, allowing Defendant
to enter without objecting or revoking any consent previously given to Chief Scott, and directing
Defendant to sit at the dining room table, only buttressed Defendant’s belief that Plaintiffs
consented to the search. Indeed, several courts have held that it is reasonable for an official to
infer consent from an individual’s non-verbal acquiescence to the official’s entry into the
individual’s residence. See, e.g., Grant, 375 F. App'x at 80 (finding that there was implied
consent, where occupant admitted officers into his building, turned to his apartment, and entered
the apartment “without impediment or objection to the entry of the police.”); Seifert, 933 F.
Supp. 2d at 312 (finding that there was an objectively reasonable basis for officers to imply
consent, despite the occupant’s failure to verbally invite the officers inside her home, where the
occupant answered the door, did not object to the officers’ entry when they came in, shut the
door behind them, and, once inside, asked them to sit in the living room.). Thus, given the
totality of the circumstances, an objectively reasonable official in Defendant’s position would
have understood Plaintiffs’ conduct, during Defendant’s second encounter at the home, as further
demonstrating that Plaintiffs consented to Defendant entering their home.
Moreover, the Court cannot conclude that an objectively reasonable official would have
perceived Plaintiffs’ conduct inside the home as a refusal to consent. In that regard, it is
undisputed that, once inside the home, Mr. Zimmer directed Defendant to sit at the dining room
table. Zimmer, Sr. Dep. 51:17-21; Marchese Dep. 41:18-25. While seated at the table,
Defendant posed a series of questions to Mr. Zimmer, Mrs. Zimmer, and C.Z. Zimmer, Sr. Dep.
51:17-52:25. Mr. Zimmer described the way that the parties interacted at the table as
“conversational,” and further indicated that the parties spoke for over an hour. Id. at 58:18-59:3.
Additionally, the record is devoid of evidence suggesting that Plaintiffs verbally objected to
Defendant’s entry at any time, by, for example, stating they did not consent to the search or that
they were only consenting because they felt compelled to do so. Under these circumstances, it
was objectively reasonable for Defendant to continue to believe that Plaintiffs consented to her
Finally, Plaintiffs’ argument that they feared C.Z. would be removed from their home if
they did not permit Defendant to enter is unavailing. Because the voluntariness inquiry focuses
on the coercive conduct of state officials, the relevant inquiry is whether the conduct of
Defendant either explicitly or implicitly coerced Plaintiffs into consenting to Defendant’s entry;
the subjective fears of Plaintiffs are insufficient to vitiate otherwise valid consent. See United
States v. Coates, 462 F. App'x 199, 203 (3d Cir. 2012) (“The scope of consent is measured by
what a ‘typical reasonable person [would] have understood by the exchange between the officer
and the subject,’ not the [consenting party’s] subjective intent.”); see, e.g., Southerland v.
Garcia, 483 F. App'x 606, 608 (2d Cir. 2012) (finding that the plaintiff’s subjective belief,
“based on a discussion with a neighbor, that failure to consent could lead to loss of her
employment with the City” did not factor into the court’s voluntariness determination, because
courts “assess . . . consent on an objective basis.”); United States v. Lopez-Rodriguez, 396 F.3d
956, 960 (8th Cir. 2005) (finding that the officers validly obtained consent, despite the
occupant’s “unvoiced, subjective feelings about whether she could decline the officers' request
to search the apartment, [because] the officers reasonably believed that [the occupant]
voluntarily consented to the search of the apartment.”); Phillips v. Cty. of Orange, 894 F. Supp.
2d 345, 371 (S.D.N.Y. 2012) (“[T]he fact that the Parent Plaintiffs subjectively feared certain
repercussions if they did not give their consent, without more, is insufficient to demonstrate that
their consent was not voluntary.”) Here, although Mr. Zimmer testified that he subjectively
feared that C.Z. would be removed from Plaintiffs’ home if they did not consent to the search,
Plaintiffs have not alleged that either Defendant or Chief Scott threatened removal. Zimmer, Sr.
Dep. 30:3-31:1. Accordingly, Plaintiffs’ unvoiced, subjective belief that C.Z. would be removed
from their house if they did not comply with the search, without more, is insufficient for this
Court to find that Defendant’s belief that Plaintiffs consented to the search was unreasonable.
In short, based on the totality of the circumstances confronting Defendant, it was
reasonable for her to believe that Plaintiffs consented to her entry: Defendant was expressly told
that Plaintiffs consented to the search; Mr. Zimmer allowed Defendant to enter the home without
objecting or attempting to block her entrance; Mr. Zimmer directed Defendant to sit at the dining
room table; once inside, the parties spoke in a conversational tone; and nothing in the record
suggests that Plaintiffs asked Defendant to leave at any point during her investigation. The Court
reiterates that the inquiry under the Fourth Amendment is one of objective reasonableness,
looking to whether a reasonable person under the circumstances would have understood an
occupant’s verbal and non-verbal conduct as indicating consent. See Jimeno, 500 U.S. at 251.
The objective reasonableness analysis recognizes that leeway must be provided for mistakes of
officials, so long as those mistakes are reasonable. See Rodriguez, 497 U.S. at 185 (observing
that, what is required of an official to satisfy the reasonableness requirement of the Fourth
Amendment in conducting a search under the consent exception is not that the official “always
be correct, but that they always be reasonable.”); see also Brinegar v. United States, 338 U.S.
160, 176 (1949) (“Because many situations which confront officers in the course of executing
their duties are more or less ambiguous, room must be allowed for some mistakes on their
part.”). Here, under the totality of the circumstances, it was objectively reasonable for Defendant
to believe that Plaintiffs voluntarily consented to her entry into the home, even if that was not in
fact Mr. Zimmer’s intent when he opened the door for Defendant. Accordingly, summary
judgment in favor of Defendant is warranted, because Defendant’s warrantless entry was not
unreasonable under the Fourth Amendment.
Defendant also argues that she is entitled to the protection of qualified immunity, because
her actions in believing that Plaintiffs consented to her entry were reasonable and did not violate
clearly established law. “The doctrine of qualified immunity protects government officials ‘from
liability for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Pearson, 555 U.S. at
231 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity balances
“the need to hold public officials accountable when they exercise power irresponsibly and the
need to shield officials from harassment, distraction, and liability when they perform their duties
reasonably.” Id. Qualified immunity thus protects “all but the plainly incompetent or those who
knowingly violate the law,” Malley v. Briggs, 475 U.S. 335, 341 (1986), and applies regardless
of whether the official’s error is “a mistake of law, a mistake of fact, or a mistake based on
mixed questions of law and fact.” Groh, 540 U.S. at 567 (Kennedy, J., dissenting).
Courts engage in a two-step analysis to determine whether an official is entitled to
qualified immunity. First, the Court must determine whether the official’s conduct violated a
statutory or constitutional right. Pearson, 555 U.S. at 232; Mammaro v. New Jersey Div. of
Child Prot. & Permanency, 814 F.3d 164, 168-69 (3d Cir. 2016). Second, the Court must
determine “whether the right at issue was ‘clearly established’ at the time of defendant's alleged
misconduct.” Pearson, 555 U.S. at 232; Estep v. Mackey, 639 F. App'x 870, 873 (3d Cir. 2016).
The Court has discretion to approach these steps in the sequential order that it deems “most
appropriate for the particular case before [it].” Santini v. Fuentes, 795 F.3d 410, 418 (3d Cir.
2015); see Pearson, 555 U.S. at 236. Here, for the reasons already discussed, it was objectively
reasonable for Defendant to believe that she had been given consent to enter Plaintiffs’ home,
and therefore, an objectively reasonable official in Defendant’s position would believe that her
actions in entering Plaintiffs’ home with consent did not violate the Fourth Amendment. Even if
Defendant made a mistake of fact as to whether consent was actually given, because that mistake
was reasonable, Defendant would still be shielded by qualified immunity. See Pearson, 555 U.S.
at 244 (“The principles of qualified immunity shield an officer from personal liability when an
officer reasonably believes that his or her conduct complies with the law.”); Saucier v. Katz, 533
U.S. 194, 205 (2001) (“If the officer's mistake as to what the law requires is reasonable,
however, the officer is entitled to the immunity defense.”).
Additionally, turning to the second step of the qualified immunity analysis, the Court
finds that the right at issue in this case was not clearly established. A right is clearly established
where, at the time of the challenged conduct, the contours of the right are “sufficiently clear ‘that
every reasonable official would [have understood] that what he is doing violates that right.’”
Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012) (quoting Ashcroft v. al-Kidd, 563 U.S. 731,
741 (2011)); see Mullenix v. Luna, 136 S. Ct. 305, 308 (2015). In other words, “[t]he relevant,
dispositive inquiry in determining whether a right is clearly established is whether it would be
clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”
Saucier, 533 U.S. at 202. While a case directly on point is not required, “existing precedent must
have placed the statutory or constitutional question beyond debate.” al-Kidd, 563 U.S. at 741.
Stated differently, “there must be sufficient precedent at the time of action, factually similar to
the plaintiff's allegations, to put defendant on notice that his or her conduct is constitutionally
prohibited.” McLaughlin v. Watson, 271 F.3d 566, 572 (3d Cir. 2001). “Such precedent must
come either from the Supreme Court or a ‘robust consensus of cases of persuasive authority in
the Court of Appeals.’” In Re: J & S Properties, LLC, No. 16-3366, 2017 WL 4294065, at *4
(3d Cir. Sept. 28, 2017) (quoting Mammaro, 814 F.3d at 69).
Within the context of warrantless home searches, the Supreme Court has held, in a
decision predating the conduct at issue in this case, that “[n]o reasonable officer could claim to
be unaware of the basic rule, well established by our cases, that, absent consent or exigency, a
warrantless search of the home is presumptively unconstitutional.” Groh, 540 U.S. at 564.
Nonetheless, both the Supreme Court and the Third Circuit have repeatedly instructed courts
“not to define clearly established law at a high level of generality.” al-Kidd, 563 U.S. at 742; see
Pauly, 137 S. Ct. at 551–52; Mackey, 639 F. App'x at 873. “Rather, the right at issue must be
framed ‘in a more particularized, and hence more relevant, sense, in light of the case's specific
context, not as a broad general proposition.’” Mackey, 639 F. App'x at 873 (quoting Spady v.
Bethlehem Area Sch. Dist., 800 F.3d 633, 638 (3d Cir. 2015)). Otherwise, “[p]laintiffs would be
able to convert the rule of qualified immunity . . . into a rule of virtually unqualified liability
simply by alleging violation of extremely abstract rights.” Anderson v. Creighton, 483 U.S. 635,
In Anderson, for example, the Supreme Court held that the Court of Appeals erred in
defining the clearly established law pertaining to the plaintiff’s Fourth Amendment warrantless
search claim at too high a level of generality. See 483 U.S. at 640 (criticizing the Court of
Appeals’ discussion of qualified immunity as consisting “of little more than an assertion that a
general right [the agent] was alleged to have violated—the right to be free from warrantless
searches of one's home unless the searching officers have probable cause and there are exigent
circumstances—was clearly established.”). In that case, the plaintiff alleged that his Fourth
Amendment rights were violated when an agent of the Federal Bureau of Investigation
conducted a warrantless search of the plaintiff’s home, under the mistaken belief that a man
suspected of a bank robbery might be found there. See id. at 637. The Court of Appeals rejected
the agent’s qualified immunity defense, holding that the “the right [the agent] was alleged to
have violated—the right of persons to be protected from warrantless searches of their home
unless the searching officers have probable cause and there are exigent circumstances—was
clearly established.” Id. at 638. In reversing the Court of Appeals’ finding on qualified
immunity, the Anderson Court stressed the importance of defining the clearly established right
with particularity, observing:
[W]hether an official protected by qualified immunity may be held personally liable for
an allegedly unlawful official action generally turns on the ‘objective legal
reasonableness’ of the action, assessed in light of the legal rules that were ‘clearly
established’ at the time it was taken.
The operation of this standard, however, depends substantially upon the level of
generality at which the relevant ‘legal rule’ is to be identified. For example, the right to
due process of law is quite clearly established by the Due Process Clause, and thus there
is a sense in which any action that violates that Clause (no matter how unclear it may be
that the particular action is a violation) violates a clearly established right. Much the same
could be said of any other constitutional or statutory violation. But if the test of ‘clearly
established law’ were to be applied at this level of generality, it would bear no
relationship to the ‘objective legal reasonableness’ that is the touchstone of Harlow.
Plaintiffs would be able to convert the rule of qualified immunity that our cases plainly
establish into a rule of virtually unqualified liability simply by alleging violation of
extremely abstract rights. Harlow would be transformed from a guarantee of immunity
into a rule of pleading. Such an approach, in sum, would destroy ‘the balance that our
cases strike between the interests in vindication of citizens' constitutional rights and in
public officials' effective performance of their duties,’ by making it impossible for
officials ‘reasonably [to] anticipate when their conduct may give rise to liability for
damages.’ It should not be surprising, therefore, that our cases establish that the right the
official is alleged to have violated must have been ‘clearly established’ in a more
particularized, and hence more relevant, sense: The contours of the right must be
sufficiently clear that a reasonable official would understand that what he is doing
violates that right. This is not to say that an official action is protected by qualified
immunity unless the very action in question has previously been held unlawful; but it is
to say that in the light of pre-existing law the unlawfulness must be apparent.
Id. at 639–40.
Applying those principles, the Anderson Court found that the Court of Appeals’ broad
formulation of the relevant legal right – as the right to be free from a warrantless search, absent
probable cause and exigent circumstances – failed to account for the objective reasonableness of
the agent’s actions. See id. at 641 (“[T]he determination whether it was objectively legally
reasonable to conclude that a given search was supported by probable cause or exigent
circumstances will often require examination of the information possessed by the searching
officials.”). Rather, in determining whether the agent was entitled to qualified immunity, the
Anderson Court found that the relevant particularized inquiry was “the objective (albeit factspecific) question whether a reasonable officer could have believed [the agent’s] warrantless
search to be lawful, in light of clearly established law and the information the searching officers
As I read Anderson and its progeny, the Court’s inquiry at the second step of the qualified
immunity analysis is twofold. First, the Court must analyze whether the particular Fourth
Amendment right at issue in this case was clearly established at the time of Defendant’s conduct,
such that it would have been clear to a reasonable official that, under the circumstances
encountered by Defendant, Defendant’s conduct was unlawful. Mullenix, 136 S. Ct. at 308.
While a directly analogous case is not required for the official to be charged with knowledge of
the unlawfulness of his or her conduct, the Third Circuit “require[s] some but not precise factual
correspondence.” Bennis v. Gable, 823 F.2d 723, 733 (3d Cir. 1987) (quoting Three Mile Island
v. Nuclear Reg. Comm'rs, 747 F.2d 139 (3d Cir. 1984)). Second, even where reasonable officials
“clearly should have been aware of the governing legal principles, they are nevertheless entitled
to immunity if based on the information available to them they could have believed their conduct
would be consistent with those principles.” Good, 891 F.2d at 1092; Couden, 446 F.3d at 492
(“‘If the officer's mistake as to what the law requires is reasonable,’ the officer is entitled to
qualified immunity.”) (quoting Saucier, 533 U.S. at 205).
In this case, the question becomes whether clearly established law, as of January 13,
2015, would have put a reasonable caseworker in Defendant’s position on notice that a
warrantless entry into Plaintiffs’ home, under the circumstances confronting Defendant, violated
Plaintiffs’ Fourth Amendment rights. Stated differently, the question is whether a reasonable
caseworker would have known that it was unlawful to conduct a warrantless entry into Plaintiffs’
home, where: (1) consent to search was given by Plaintiffs to a police officer that Plaintiffs had
summoned; (2) the consent was given to the officer outside of the caseworker’s presence, and
communicated to the caseworker by the officer; and (3) the consent was given in the setting of a
child welfare investigation.
Neither Plaintiffs nor Defendant has cited relevant case law addressing this precise
scenario. Moreover, in conducting its own research, this Court has not found any applicable
Supreme Court precedent, or a “robust consensus of cases of persuasive authority” in the Court
of Appeals, that clearly establish the right alleged to have been violated in this case. Mammaro,
814 F.3d at 69. Accordingly, the Court finds that it is far from clear that every reasonable
caseworker in Defendant’s position would have known that a warrantless entry into Plaintiffs’
home, under the particular facts of this case, violated the Fourth Amendment.
While Plaintiffs maintain that two cases addressing a social worker’s warrantless
entrance into a home, Good v. Dauphin Cty. Soc. Servs. for Children & Youth, 891 F.2d 1087 (3d
Cir. 1989) and Bostrom v. New Jersey Div. of Youth & Family Servs., 969 F. Supp. 2d 393
(D.N.J. 2013),7 establish the existence of coercion in this case, those cases are factually
distinguishable from the present matter, and thus, do not constitute clearly established law
applicable to this case.8 In Good, the Third Circuit held that a caseworker and a police officer
were not entitled to summary judgment on qualified immunity grounds, because a material
dispute of fact existed as to whether the plaintiff consented to the officials’ warrantless entry into
her home to investigate a report of child abuse, and the consent to search exception to the
warrant requirement was clearly established. See 891 F.2d at 1089. In that case, a social
services agency received an anonymous tip that a child had bruises on her body, which the child
indicated were caused by a fight with her mother. Id. at 1089. When the child failed to appear at
At the outset, the Court notes that Bostrom is a district court case, and thus, was not clearly
established law that a reasonable official should have been aware of at the time of Defendant’s
conduct. See Mammaro, 814 F.3d at 69 (finding that, in determining whether a right is clearly
established, the court must examine whether, at the time of the defendant’s conduct, there was
sufficient precedent, coming from either the Supreme Court or a robust consensus of cases in the
Court of Appeals, to put the defendant on notice that his or her conduct was constitutionally
To the extent that Plaintiffs maintain that Good and Bostrom stand for the proposition that the
threat of a child welfare investigation necessarily renders a parent’s consent to a home search
involuntary, that argument has previously been rejected by the Third Circuit. See Hatfield v.
Berube, No. 17-2354, 2017 WL 4334044, at *3 (3d Cir. Sept. 29, 2017) (“[Plaintiff] consented to
the inspection when Berube suggested that Hatfield's children possibly could be removed from
her custody. But it was not sufficiently clear, either from Supreme Court precedent or a ‘robust
consensus of . . . persuasive authority’ in the Courts of Appeals, that consent under these
circumstances was coerced.”) (internal citation omitted).
school the following day, the agency dispatched the caseworker and police officer to the
plaintiff’s home. Id. The officials arrived at approximately 10:00 p.m., knocked loudly on the
door, announced that they had received a report of child abuse, and stated that the plaintiff “must
let them enter.” Id. at 1089-90.
Although the plaintiff demanded to see a warrant or a court order on two occasions, the
caseworker informed her that no warrant was needed and she had to let them in, and the officer
told his supervisor by radio, in the plaintiff’s presence, that “they were going into [the plaintiff’s
home].” Id. at 1090. Only then did the plaintiff allow the officials to enter, explicitly “telling
them that she did so only because she understood that she was being compelled to do so.” Id.
After entering the home, the caseworker strip searched the plaintiff’s child. Id. The plaintiff
continued to verbally protest the officials’ warrantless entry throughout the pendency of the
The Third Circuit held that the officials were not entitled to summary judgment on the
issue of qualified immunity, because a reasonable officer under the circumstances “could not
have believed [the plaintiff] had given legally effective consent to either the entry or the
subsequent strip search.” Good, 891 F.2d at 1095. In reaching that conclusion, the Third Circuit
reasoned that the law governing warrantless searches in the context encountered by the officials
in that case was clearly established:
In this case the ‘contours of the right[s]’ relied upon by the plaintiffs were sufficiently
well established in April of 1987 that [the officials] should have known what the
Constitution required of them. The decided case law made it clear that the state may not,
consistent with the prohibition of unreasonable searches and seizures found in the Fourth
and Fourteenth amendments, conduct a search of a home or strip search of a person's
body in the absence of consent, a valid search warrant, or exigent circumstances. Under
that caselaw, not only the protected privacy interests but also the exculpatory concepts of
‘consent’ and ‘exigent circumstances’ in this context were well defined.
While even an intrusion of the magnitude involved in a search of one's home and a strip
search of one's body is constitutional if the state secures consent, the consent required
must be freely given. It is ineffective if extracted by the state under threat of force or
under claim of government authority. The Supreme Court reviewed its cases on this
subject in Schneckloth v. Bustamonte and summarized the law as follows:
[I]f under all the circumstances it has appeared that the consent was not given
voluntarily—that it was coerced by threats or force, or granted only in submission
to a claim of lawful authority—then we have found the consent invalid and the
Id. at 1092-93 (quoting Schneckloth, 412 U.S. at 233). The Third Circuit held that no reasonable
officer applying the facts confronting the officials to that precedent could reasonably conclude
that the plaintiff voluntarily consented to the entry or search, because: (1) the officials
disregarded the plaintiff’s requests for a warrant, informing her that she had to let them in; (2)
the officer told her supervisor, in the plaintiff’s presence, that they were going into the home; (3)
the plaintiff stated that she only yielded to the search because she “understood that she was
compelled to do so”; and (4) the plaintiff continued to protest during the pendency of the search.
Id. at 1095. Indeed, the Third Circuit found that it was a “paradigm case of ‘submission to a
claim of lawful authority.’” Id.
Similarly, in Bostrom, the court held that two caseworkers for the New Jersey Division of
Family Services (“DYFS”) were not entitled to qualified immunity from the parent-plaintiffs’ §
1983 claim, which alleged that the caseworkers violated the plaintiffs’ Fourth Amendment rights
by conducting a warrantless search of their home. See 969 F. Supp. 2d at 412-13. On the night
in question, the plaintiffs’ adopted daughter, who had previously been placed in, and had run
away from, a foster home, was located and transferred to the DYFS facility. Id. at 397-98. At
the time she was found, the daughter had not resided in the plaintiffs’ home for more than
twenty-seven months, pursuant to a court order placing her in DYFS’ custody. Id. Upon the
daughter’s arrival at the DYFS facility, the two caseworkers examined her file on the agency’s
database, which indicated, erroneously, that the plaintiffs, rather than DYFS, had custody over
the daughter. Id. at 399. Although the caseworkers were aware that the information contained in
the database was often inaccurate, they failed to take any actions to confirm the veracity of the
information pertaining to the daughter’s custody. See id. at 399-400.
The caseworkers subsequently called the plaintiffs to inform them that their daughter had
been found, and that she would be returned to the plaintiffs’ home. Id. at 399. The plaintiffs
responded by informing the caseworkers that a court order was in place preventing the daughter
from returning to their home, and urged the caseworkers to review the daughter’s file to clarify
the custody issue. Id. at 399-400. The plaintiffs also explained that they feared for the safety of
their other children if the daughter returned home. Id. The caseworkers replied by berating the
plaintiffs with profanities and questioning their fitness as parents, and stated “if you don’t let us
drop your daughter off . . . we will be coming to your home to make sure your boys are still
breathing.” Id. at 400. After the caseworkers hung up, the plaintiffs called the township and
state police for assistance, and “[b]oth police departments informed them that they would have to
let DYFS into their home and that if they refused, [the police] would assist DYFS and make
them open their door.” Id.
The caseworkers arrived at the plaintiffs’ home at approximately 1:00 a.m., accompanied
by two police officers that the caseworkers had summoned to assist them. Id. at 402. The father
intercepted the officials outside of the front door of the home, where one of the caseworkers
informed the father that they did not need a warrant to search the home. Id. When the father
asked if the search was necessary, the caseworker responded, “I am doing this,” and asked the
father to open the door. Id. The father replied, “It doesn't appear that I have a choice,” and
opened the door. Id. The father later testified that he felt that he “had no choice but to open the
door to my house because I did not know my exact rights.” Id. The caseworkers then entered
the home and conducted a search of the premises and the plaintiffs’ minor children. Id. at 40203.
In holding that the caseworkers were not entitled to qualified immunity on the plaintiffs’
Fourth Amendment warrantless search claim, the Bostrom court found, first, that genuine issues
of material fact existed regarding whether the father consented to a search of the house. Id. at
406-07. In that regard, the court found that a reasonable jury, viewing the facts in the light most
favorable to the plaintiffs, could conclude that the father “only allowed Defendants into his home
because he was submitting to a claim of lawful authority.” Id. at 407. In finding that a
reasonable jury could conclude the consent was coercively obtained, the court noted the
Mr. Bostrom testified that he met the Defendants outside his home and asked if the search
was necessary. Defendant Schuh allegedly responded that the search would happen and it
was necessary. Two uniformed and armed Human Services Police Officers, McCloy and
Torres, were present with the DYFS case workers which gave them a visible claim of
authority. Mr. Bostrom testified that he told the Defendants that he understood he did not
have a choice and was required to let them in. Mr. Bostrom was never informed that he
could refuse the Defendants' request to enter his home.
[T]he Plaintiffs called the municipal police and the state police inquiring about their
ability to prevent DYFS from searching their home. Both police departments told the
Plaintiffs they could not refuse the search. Although these statements would be hearsay if
offered for the truth of their contents, here the statements are offered as information
learned by Mr. Bostrom that informed his decision to not refuse entry. When caseworkers
arrived at 1:00 AM with two uniformed, armed officers, Stephen Bostrom again inquired
whether the search was necessary. He was told by Defendant Schuh that the search would
be done. Stephen Bostrom then commented that he did not have a choice and could not
refuse the search. It was only after this dialogue that Defendants were allowed into the
Id. at 406-07. Accordingly, because the father expressly indicated that he was only submitting to
the search because he felt compelled to do so in the face of a visible claim of lawful authority,
the court found that genuine issues of fact existed as to whether the consent was voluntary. Id. at
Second, the court relied on Good to find that no reasonable official in the caseworkers’
position would have concluded that a warrantless search of the plaintiffs’ home was lawful. Id.
at 410-11. To that end, the court framed that the relevant inquiry, at the clearly established prong
of the qualified immunity analysis, as was whether it would have been clear to a reasonable
official, in the factual circumstances confronting the caseworkers, that a warrantless search of the
plaintiffs’ home was unlawful. Id. The court observed that the factual circumstances in that case
corresponded substantially to those in Good, and, at the time of the caseworkers’ conduct, it was
well established, under Good, that “a warrantless search of a home cannot be conducted by a
social worker absent consent or exigent circumstances.” Id. at 411. The court found that, under
Good and general precedent pertaining to voluntary consent, no reasonable officer could
conclude that the father’s consent, which was offered in the face of a claim of lawful authority
and under express protest, was voluntarily given. Id. at 413 (“[N]o reasonable case worker in
Defendants' position would have believed that a search of this residence . . . was permitted by the
While both Good and Bostrom concern warrantless searches conducted by social
workers, those cases are distinguishable from the instant matter in several significant respects,
and thus, neither case clearly establishes that the search conducted by Defendant in this case was
unlawful. First, the factual differences between this case and the circumstances present in Good
and Bostrom are abundant, rendering those cases inapposite on the issue of consent to search.
Importantly, unlike in both Good and Bostrom, where the caseworkers obtained consent from the
homeowners in the presence of police officers, here, consent was obtained by Chief Scott while
Defendant was outside in her vehicle. Additionally, while the caseworkers in Good and Bostrom
requested the presence of police officers, in this case, Plaintiffs themselves summoned Chief
Scott, an officer with whom Plaintiffs were already familiar. Moreover, in both Good and
Bostrom, it was clear that consent was procured under a claim of lawful authority, because the
officials affirmatively stated that they would be conducting the search, and that they had
authority to enter the home without a warrant. Conversely, here, while Mr. Zimmer testified that
he “believe[d] [Chief Scott] said to us something about she will come in and ask you a few
questions or something along those lines,” Zimmer, Sr. Dep. 28:14-16, and “advised them that it
would be a lot easier to let [Defendant] in,” id. at 45:17-46:5, those statements do not amount to
an affirmative claim of lawful authority to enter the home. Even if they did, they were offered
outside of the presence of Defendant, and, because nothing in the record suggests that Chief
Scott apprised Defendant of making those statements in obtaining Plaintiffs’ consent, the Court
cannot impute knowledge of those statements to Defendant in determining whether a reasonable
official in Defendant’s position could reasonably believe that Plaintiffs consented to the entry.
Furthermore, the actions following the communication of consent from Chief Scott to
Defendant distinguish the instant matter from Good and Bostrom. In that regard, in both Good
and Bostrom, the consent was obtained in the presence of all police officers and caseworkers on
the scene, and the police officers remained present at the respective homes until the search was
completed. Here, by contrast, Chief Scott departed the scene after relaying the consent to
Defendant, and Mr. Zimmer then allowed Defendant to enter the home without any verbal or
non-verbal indication that he was not consenting to her entry. Once inside the home, Defendant
received permission from Mr. Zimmer to sit at the dining room table, and Plaintiffs acquiesced to
Defendant’s subsequent questioning without further protesting the search. Furthermore, unlike
in both Good and Bostrom, following Chief Scott’s conveyance of consent, Plaintiffs never
expressly indicated to Defendant that they only consented to the search because they felt
compelled to do so. Under these circumstances, the Court cannot find that a reasonable official
in Defendant’s position would have known, as a result of either Good or Bostrom, that entry into
Plaintiffs’ home was unlawful.
The Court also finds that, within the context of warrantless home searches, the law
regarding the validity of consent communicated from one official to another is not clearly
established. To that end, the parties have not identified, and the Court has not located in its own
review, any case establishing that, where one official conveys to a second official that an
occupant has consented to a search, the second official must verify the authenticity of that
consent. More specifically, the Court has not found any such case where, as here, the occupant
takes no subsequent action to indicate that he or she did not voluntarily consent, or has
withdrawn consent.9 To the contrary, at least one circuit court has recognized that an official is
qualifiedly immune from Fourth Amendment claims when the official reasonably relies on
In so finding, the Court reiterates that its inquiry, for qualified immunity purposes, is whether a
reasonable official in Defendant’s position could objectively believe that that a warrantless entry
into Plaintiffs’ home, under the information possessed by Defendant and in light of clearly
established law, was lawful. Thus, while the Court acknowledges that in some instances, an
official’s non-presence at the time of consent may require the official to confirm the
voluntariness of consent with an occupant prior to entry, I find that it was not clearly established,
under the circumstances in this case, - where Chief Scott relayed consent, Defendant
immediately proceeded to the Plaintiffs’ home, and Plaintiffs took no subsequent actions to
indicate that their consent was involuntarily – that a warrantless entry into the home was
unlawful. Stated differently, a reasonable official in Defendant’s position would not have been
on clear notice that Defendant’s consent was involuntary, or that entering the house without
verifying consent would render the search unlawful.
information conveyed by another official to enter private property without a warrant, and this
Court has not located any Third Circuit decision holding otherwise. See Washington Square
Post No. 1212 Am. Legion v. Maduro, 907 F.2d 1288, 1293 (2d Cir. 1990) (finding that officials
were qualifiedly immune from the plaintiffs’ Fourth Amendment warrantless search claim,
because the officials were “entitled to rely on the reasonable instructions of their superior in the
chain of command [that no warrant was needed to enter the establishment], particularly where
those instructions were not inconsistent with their personal knowledge and experience.”); see
also Scott v. City of Mount Vernon, No. 14-4441, 2017 WL 1194490, at *30 (S.D.N.Y. Mar. 30,
2017) (finding that officials were entitled to qualified immunity on the plaintiff’s Fourth
Amendment warrantless search claim, because “[n]o reasonable trier of fact could conclude that
every reasonable official would know that [the official’s] decision to follow the orders of their
superior and enter the Apartment (and remain there for some time), where other officers were
already present, was a violation of Plaintiffs' Fourth Amendment rights.”).10
In sum, I find that while it was clearly established, at the time of Defendant’s conduct,
that a social worker generally cannot conduct a warrantless home search without consent, here,
More generally, courts have found that officials are entitled to qualified immunity from
constitutional claims when they reasonably rely on information from other officials to engage in
constitutionally protected conduct. See Anthony v. City of New York, 339 F.3d 129, 138 (2d Cir.
2003) (finding that officers were entitled to qualified immunity from a warrantless seizure claim,
where, based on the totality of the circumstances, the officers reasonably relied on a superior
officer’s order to seize the plaintiff); Bilida v. McCleod, 211 F.3d 166, 174–75 (1st Cir. 2000)
(“Plausible instructions from a superior or fellow officer support qualified immunity where,
viewed objectively in light of the surrounding circumstances, they could lead a reasonable officer
to conclude that the necessary legal justification for his actions exists (e.g. a warrant, probable
cause, exigent circumstances).”); see also Heicklen v. Toala, No. 08-2457, 2010 WL 565426, at
*6 (S.D.N.Y. Feb. 18, 2010), aff'd sub nom. Heicklen v. Kelly, 409 F. App'x 457 (2d Cir. 2011)
(“Even if the defendant Toala did not actually have probable cause to arrest, given the plausible
orders from Lieutenant Wolf and his own observation of all of the circumstances, defendant
Toala reasonably could have concluded that probable cause existed. Therefore, defendant Toala
was protected by qualified immunity in this case.”).
based on the circumstances confronting Defendant, a reasonable official would not have known
that entering Plaintiffs’ home violated the Fourth Amendment. Unlike in Good and Bostrom,
where consent was clearly obtained under the threat of lawful authority, and the occupants
expressly indicated to the caseworkers that they consented only because they felt compelled to
do so, here, consent was obtained by Chief Scott outside of Defendant’s presence and relayed to
Defendant, and, during Defendant’s second encounter at the home, Plaintiffs did not take any
actions to indicate that their consent was involuntary. Thus, while the Good and Bostrom courts
found that the general standards governing the voluntariness of consent would have placed any
reasonable official on notice that the consent was coercively obtained, here, as in Anderson,
looking solely to the broad standards governing consent would run afoul of the Supreme Court’s
instruction to define the clearly established right with particularity, as well as fail to account for
the objective reasonableness of Defendant’s actions. See al-Kidd, 563 U.S. at 742; Pauly, 137 S.
Ct. at 551–52.
Rather, I find that under the facts of this case, a reasonable official, armed with
knowledge of the standards governing warrantless searches and voluntary consent, could
nonetheless have been reasonably mistaken as to whether Plaintiffs consented to the entry. See
Kornegay v. Cottingham, 120 F.3d 392, 395–96 (3d Cir. 1997) (“Qualified immunity turns on
the reasonableness of the officers' belief that their conduct was legal not its legality per se.”). To
that end, this Court has found neither a factually analogous Supreme Court decision, nor a robust
consensus of persuasive authority in the Court of Appeals, that clearly established the
unconstitutionality of Defendant’s conduct as of January 13, 2015. To the contrary, reasonable
minds could differ as to whether Plaintiffs consented to Defendant’s entry under the
circumstances, and the law pertaining to consent communicated by one official to another was
not clearly established at the time of Defendant’s conduct. Accordingly, because I cannot find
that every reasonable caseworker in Defendant’s position would have understood that
Defendant’s conduct violated Plaintiffs’ Fourth Amendment rights, Defendant is entitled to
In Count Six of the Complaint, Plaintiffs allege that Defendant’s warrantless entry into
their home violated the New Jersey Civil Rights Act because it was not conducted pursuant to
Plaintiffs’ voluntary consent. The NJCRA11 was modeled after § 1983, and thus, courts in New
Jersey have consistently looked at claims under the NJCRA “through the lens of § 1983.”
Trafton v. City of Woodbury, 799 F. Supp. 2d 417, 443–44 (D.N.J. 2011); Chapman v. New
Jersey, No. 08–4130, 2009 WL 2634888, *3 (D.N.J. Aug. 25, 2009) (“Courts have repeatedly
construed the NJCRA in terms nearly identical to its federal counterpart . . . .”); Armstrong v.
Sherman, No. 09–716, 2010 WL 2483911, *5 (D.N.J. June 4, 2010) (“[T]he New Jersey Civil
Rights Act is a kind of analog to section 1983 . . . .”). Accordingly, Plaintiffs’ NJCRA claim
will be interpreted analogously to their § 1983 claims. Trafton, 799 F. Supp. 2d at 443–44; see
Hedges v. Musco, 204 F.3d 109, 121 n. 12 (3d Cir. 2000) (concluding New Jersey's
The NJCRA “creates a private cause of action for violations of civil rights secured under the
New Jersey Constitution.” Trafton v. City of Woodbury, 799 F. Supp. 2d 417, 443 (D.N.J. 2011).
Specifically, the NJCRA provides, in pertinent part, a private cause of action to:
Any person who has been deprived of any substantive due process or equal protection
rights, privileges or immunities secured by the Constitution or laws of the United States,
or any substantive rights, privileges or immunities secured by the Constitution or laws of
this State, or whose exercise or enjoyment of those substantive rights, privileges or
immunities has been interfered with or attempted to be interfered with, by threats,
intimidation or coercion by a person acting under color of law . . . .
constitutional provisions concerning search and seizures are interpreted analogously to the
Fourth Amendment). Because the Court has concluded that Defendant had an objectively
reasonable belief that Plaintiffs voluntarily consented to her entry, and that Defendant is
nonetheless entitled to qualified immunity, Plaintiffs’ NJCRA claim alleging that Defendant
conducted an unreasonable search also fails. Accordingly, summary judgment is granted in
favor of Defendant on Plaintiffs’ NJCRA claim.
Because Defendant’s belief that Plaintiffs voluntarily consented to Defendant’s entry into
their home was objectively reasonable, in light of the totality of the circumstances confronting
Defendant, I conclude that Defendant’s entry did not violate the Fourth Amendment’s
prohibition against unreasonable searches. Additionally, I find that Defendant is entitled to
qualified immunity, because an objectively reasonable official, provided with the information
possessed by Defendant and in light of clearly established law at the time of Defendant’s
conduct, would not have known that Defendant’s entry was unlawful. Accordingly, Defendant’s
Motion for Summary Judgment is GRANTED, and Plaintiffs’ Cross-Motion for Summary
Judgment is DENIED.
Dated: October 26, 2017
/s/ Freda L. Wolfson
Hon. Freda L. Wolfson
United States District Judge
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