Braskett v. Fender
Filing
54
MEMORANDUM OPINION AND ORDER ON MOTION FOR SUMMARY JUDGMENT: The defendants' motion for summary judgment 30 is GRANTED. Signed on 8/3/12 by Magistrate Judge Dennis J. Hubel. (kb)
1
UNITED STATES DISTRICT COURT
2
DISTRICT OF OREGON
3
PORTLAND DIVISION
4
5 RICHARD BRASKETT,
6
7
Plaintiff,
v.
8 CELESTE FENDER and NATHAN
TOBEY,
9
Defendants.
10
)
)
)
)
)
)
)
)
)
)
)
No. 03:11-cv-01078-HU
MEMORANDUM OPINION AND ORDER
ON MOTION FOR SUMMARY JUDGMENT
11
12
13 Kevin Keaney
Kevin Keaney, P.C.
14 1631 N.E. Broadway, #540
Portland, OR 97232
15
Attorney for Plaintiff
16
17 Jennifer Johnston
Deputy City Attorney
18 Robert Yamachika
Deputy City Attorney
19 Office of City Attorney
221 S.W. 4th Avenue, Room 430
20 Portland, OR 97204
21
Attorneys for Defendants
22
23
24
25 HUBEL, Magistrate Judge:
26
The plaintiff Richard Braskett brings this action under 42
27 U.S.C. § 1983, for alleged violations of his constitutional rights
28 by the defendants, in connection with events that occurred in April
1 - MEMORANDUM OPINION AND ORDER
1 2010.
The defendant Celeste Fender is a Detective with the
2 Portland Police Bureau (“PPB”), and the defendant Nathan Tobey is
3 a PPB Officer.
At the time of the incidents in question, both
4 Fender and Tobey were assigned to the PPB’s Domestic Violence
5 Reporting Unit (“DVRU”).
Braskett’s claims in this case involve
6 the defendants’ contacts with Braskett’s wife Barbara Braskett
7 (“Mrs. Braskett”), and the defendants’ search of the Brasketts’
8 residence on April 13, 2010.
Braskett asserts a single claim for
9 relief, alleging the defendants’ actions on the date in question
10 violated Braskett’s “right to be free of unreasonable search and
11 seizure under the Fourth Amendment and 42 USC 1983.”
Dkt. #27,
12 Amended Complaint, ¶ 8.
13
The case currently is before the court on the defendants’
14 Motion for Summary Judgment.
Dkt. #30.
The defendants argue they
15 are entitled to judgment as a matter of law on Braskett’s claim.
16 The motion has been briefed fully by the parties, and the court
17 heard oral argument on the motion on July 9, 2012.
18
BACKGROUND FACTS
19
20
The
following
facts
are
uncontroverted,
unless
otherwise
21 noted.
22
Mr. Braskett and Mrs. Braskett jointly purchased their current
23 residence in Vancouver, Washington, and they both are named on the
24 title to the property.1
In April 2010, Mrs. Braskett reported
25 verbal abuse by Mr. Braskett to a family friend, who is a former
26
27
1
Declaration of Jennifer Johnston (“Johnston Decl.”), Ex. 2,
28 Deposition of Barbara Braskett, (“B. Braskett Depo.”) 48:14-19.
2 - MEMORANDUM OPINION AND ORDER
1 PPB reserve police officer.2
On or around April 12 or 13, 2010,
2 Mrs. Braskett asked Mr. Braskett to move out of the family home.
3 Mrs. Braskett remained in the house with their two children.3
4
On the night of Monday, April 12, 2010, Detective Celeste
5 Fender and Officer Nathan Tobey went to the Braskett residence to
6 investigate an allegation of domestic violence and prescription
7 drug abuse by Mr. Braskett.4
Detective Fender attempted to call
8 the Braskett residence phone and knocked on the door on numerous
9 occasions, but there was no answer to either.5
10
On Tuesday, April 13, 2010, Fender and Tobey returned to the
11 Braskett residence to make contact with Mrs. Braskett.
They
12 identified themselves as PPB officers and members of the DVRU,
13 stating they were there to talk to Mrs. Braskett about her husband,
14 Mr. Braskett, and to make sure that Mrs. Braskett and the children
15 were okay.6
16
Mrs. Braskett invited Fender and Tobey into her home, and they
17 talked at the kitchen table.7
At the time of inviting Fender and
18 Tobey into the Braskett residence, Mrs. Braskett was aware that one
19
2
20
21
Ex. 2, B. Braskett Depo. 18:9-19:9.
3
Johnston Decl. Ex. 1, Deposition of Richard Braskett, (“R.
Braskett Depo.”) 31:19-23; Ex. 2, B. Braskett Depo. 69:20-70:24.
22
4
Memo in Supp. of Defs.’ Motion Summ. J., at 2.
23
5
Johnston Decl. Ex. 3, Deposition of Celeste Fender Volumes
24 I and II (“Ex. 3, Fender Depo.”) 34:18-35:8.
25
6
Ex. 2, B. Braskett Depo. 77:4-22; Ex. 3, Fender Depo. 57:2258-5; Johnston Decl. Ex. 4, Deposition of Nathan Tobey, (“Tobey
26
Depo.”) 4:14-18; 6:16-19.
27
7
Ex. 2, B. Braskett Depo. 77:18-79:6; Ex. 3, Fender Depo.
28 58:5-7.
3 - MEMORANDUM OPINION AND ORDER
1 of the subjects about which the officers wanted to talk to her was
2 Mr. Braskett’s use of alcohol and other drugs.8
3
They
talked, at
the
kitchen
table, about
the
safety
of
4 Mrs. Braskett and the children, and about giving Mr. Braskett any
5 assistance that he might need.9
6 to somebody from the PPB.10
Mrs. Braskett was relieved to talk
She talked about the stress which both
7 she and her husband were under. Mr. Braskett’s stress stemmed from
8 an incident which happened a few years ago.11
Mrs. Braskett was
9 concerned that this stress was causing Mr. Braskett to overuse
10 prescription medication.
11
Both Mrs. Braskett and Mr. Braskett had prescriptions for
12 painkiller medication.12
Mrs. Braskett thought Mr. Braskett’s
13 doctor was prescribing excessive amounts of medication, and when
14 Mr. Braskett’s medication ran out, he would take Mrs. Braskett’s
15 medication. Mrs. Braskett was also concerned that Mr. Braskett was
16 consuming more alcohol than usual, and he had become verbally
17 abusive towards her.13
Mrs. Braskett began hiding her medication
18 from Mr. Braskett so that he could not take hers.14
19
8
Ex. 2, B. Braskett Depo. 18:2-19:4.
21
9
Ex. 2, B. Braskett Depo. 79:7-15.
22
10
20
Ex. 2, B. Braskett Depo. 127:8-15; 130:8-19; Ex. 4, Tobey
Depo. 19:2-3.
23
11
Ex. 4, Tobey Depo. 18:4-8.
12
Ex. 4, Tobey Depo. 18:18-19.
24
25
26
13
Ex. 2, B. Braskett Depo. 79:22-80:14; Ex. 3, Fender Depo.
68:7-11; Ex. 4, Tobey Depo. 18:10-11.
27
14
Ex. 2, B. Braskett Depo. 89:14-19; Ex. 4, Tobey Depo. 18:18-
28 22.
4 - MEMORANDUM OPINION AND ORDER
1
Mrs. Braskett clearly stated that while Mr. Braskett had
2 become increasingly verbally abusive towards her, he had never been
3 physically violent towards her or the children.15
Mrs. Braskett
4 said the situation had been causing her stress, and she had been
5 seeking help for some time.16
6
In April 2010, Mrs. Braskett was teaching the fourth grade,
7 and one of her students had thrown a chair at her, which caused her
8 additional stress.17
Mrs. Braskett told Fender and Tobey about the
9 incident, and that she was taking sleeping pills as a result of the
10 stress it had caused her.18
Mrs. Braskett also had a painful
11 shoulder injury at the time, and so she was taking a pain reliever/
12 sleeping agent.19
13
Tobey does not recall Mrs. Braskett talking about incidents in
14 her classroom, but does recall Mrs. Braskett informing the officers
15 that she had taken sleeping pills the night before, and that was
16 why she had not answered the door.20
17
Mrs. Braskett recalls Fender and Tobey specifically asking
18 whether there were any firearms in the house.21
Mrs. Braskett
19
15
20
21
Ex. 2, B. Braskett Depo. 79:16-21; Ex. 3, Fender Depo.
61:21-62:1; Ex. 4, Tobey Depo. 8:10-13.
16
Ex. 2, B. Braskett Depo. 82:14-20; Ex. 4, Tobey Depo. 18:23-
22 19:3.
23
17
24
18
Ex. 2, B. Braskett Depo. 33:4-20.
Declaration of Kevin Keaney (“Keaney Decl.”) Ex. 1, B.
Braskett Depo., ECF p. 38.
25
26
19
Keaney Decl., Ex. 1, B. Braskett Depo. ECF p. 40.
27
20
Ex. 4, Tobey Depo. 19:4-17.
28
21
Ex. 2, B. Braskett Depo. 95:16-96:23.
5 - MEMORANDUM OPINION AND ORDER
1 communicated her concerns about Mr. Braskett’s firearms around the
2 house, as their children might be able to access them, and she
3 asked Fender and Tobey to secure the firearms.22
Mrs. Braskett led
4 Fender and Tobey to the master bedroom, informed Fender and Tobey
5 that Mr. Braskett kept a gun in the dresser, and asked them to
6 remove the gun.
Tobey removed the gun.23
7 Mrs. Braskett had access to the dresser.24
Tobey assumed that
Mrs. Braskett allowed
8 Tobey to unload the ammunition from the gun.25 Fender did not enter
9 the dresser to remove the gun, and did not touch the gun at any
10 stage.26
11
Mrs. Braskett did not want the gun in the house, so she opened
12 a combination lock gun safe in the garage.
Officer Tobey placed
13 the gun in the gun safe at Mrs. Braskett’s request.27
14
Mrs. Braskett was concerned about the light on the front porch
15 not working, so Fender and Tobey went to a nearby store and pur16 chased a new light bulb.
Tobey installed the new light bulb.28
17
18
22
Ex. 3, Fender Depo. 72:13-16; 75:20-22.
23
Ex. 2, B. Braskett Depo. 97:7-13; Ex. 4, Tobey Depo. 23:20-
19
20
21
24:5.
24
Ex. 4, Tobey Depo. 27:8-28:6.
22
25
Ex. 2, B. Braskett Depo. 97:11-16; 156:10-12; Ex. 3, Fender
23 Depo. 73:1-4.
24
26
Declaration of Celeste Fender ¶3 (“Fender Decl.”); Ex. 3,
25 Fender Depo. 72:12-21; 73:13-20; 79:7-12.
26
27
Ex. 2, B. Braskett Depo 97:17-98:2; Ex. 3, Fender Depo
73:13-15; Ex. 4, Tobey Depo 24:13-14.
27
28
Keaney Decl. Ex. 1, B. Braskett Depo. 95:2-11; Ex. 4, Tobey
28 Depo. 32:10-19.
6 - MEMORANDUM OPINION AND ORDER
1
Mrs. Braskett claims she was assured on numerous occasions
2 that the information which she imparted to Fender and Tobey would
3 remain confidential between the three of them.
Mrs. Braskett was
4 aware that Fender and Tobey were from the DVRU; however, she
5 believed their conversations would remain confidential because
6 there was no allegation of physical abuse by Mr. Braskett towards
7 Mrs.
Braskett
or
their
8 Mrs.
Braskett
asking
children.29
whether
their
Tobey
does
conversation
not
remember
would
remain
9 confidential.30
10
According to Fender, she called Mrs. Braskett on April 14,
11 2010, informing her that the PPB wanted to ensure Mr. Braskett had
12 his own prescription, and they arranged for Fender and Tobey to go
13 to the house after Mrs. Braskett finished work.31
14 does not recall any such phone call.32
Mrs. Braskett
Fender and Tobey arrived at
15 the Braskett residence shortly after 4:00 p.m.33 When Mrs. Braskett
16 arrived home from work with her children, she invited Fender and
17 Tobey inside the Braskett residence.34
18 / / /
19 / / /
20
21
29
Ex. 2, B. Braskett Depo. 127:16-22; Keaney Decl. Ex. 1, B.
22 Braskett Depo. 127:16-129:24 (ECF pp. 33-34).
23
30
Ex. 4, Tobey Depo. 19:22-24.
24
31
Ex. 3, Fender Depo. 98:23-99:23.
25
32
Ex. 2, B. Braskett Depo. 98:22-25.
33
Ex. 3, Fender Depo. 101:5-12; Ex. 4, Tobey Depo. 34:18-22.
26
27
34
Ex. 2, B. Braskett Depo. 100:4-5; Ex. 3, Fender Depo. 101:528 22; Ex. 4, Tobey Depo. 34:22-24.
7 - MEMORANDUM OPINION AND ORDER
1
Mrs. Braskett went upstairs to retrieve one of Mr. Braskett’s
2 medication bottles.35
Mrs. Braskett returned upset, and informed
3 Fender and Tobey that Mr. Braskett had been in the house during the
4 day, and had cleaned up and disposed of some prescription medica5 tion bottles, even though Mrs. Braskett had asked Mr. Braskett not
6 to enter the house.36
7
Mrs.
Braskett
obtained
prescription
bottles37
from
8 Mr. Braskett’s medicine cabinet in the master bathroom and showed
9 them to Fender.
Fender copied information from the label onto a
10 piece of paper, but she did not remove the prescription bottles
11 that came from the medicine cabinet from the Braskett residence.38
12 Mr. Braskett’s prescription Vicodin bottle was not in the medicine
13 cabinet, and so was not part of the bottles which Mrs. Braskett
14 retrieved from that location and showed to Fender.39 Neither Fender
15 nor Tobey entered the master bedroom or en-suite bathroom on
16 April 14, 2010.40
17
Mrs. Braskett determined that Mr. Braskett had cleaned up
18 because she knew one of Mr. Braskett’s empty prescription bottles
19
20
21
35
22
36
Ex. 3 Fender Depo. 102:10-11; Ex. 4 Tobey Depo. 35:3-10.
Ex. 3 Fender Depo. 102:14-19: Ex. 4 Tobey Depo. 35:2-10,
41:8-10.
23
37
For the purposes of clarity, “prescription bottles” refers
24 exclusively to Mr. Braskett’s medication bottles.
25
38
Ex. 2, B. Braskett Depo. 101:8-102-2; 103:16-104:4.
26
39
Ex. 2, B. Braskett Depo. 106:25-107:2.
27
40
Ex. 2, B. Braskett Depo. 101:14-24; Declaration of Nathan
28 Tobey (“Tobey Decl.”) ¶¶ 3-6; Fender Decl. ¶ 4.
8 - MEMORANDUM OPINION AND ORDER
1 had been in the computer room, but was no longer there, and the
2 wastebasket41 in the computer room had been emptied.42
3
The garbage had been picked up on that day, and either
4 Mrs. Braskett or her son had brought the garbage can from the
5 street back to the garage earlier that afternoon.43
Mrs. Braskett
6 discovered that there was still something in the garbage can,
7 either when her son retrieved the garbage can from the street and
8 Mrs. Braskett closed the lid, when she was retrieving the garbage
9 can from the street herself she realized there was still garbage
10 inside the garbage can, or when she realized the wastebasket in the
11 computer room had been emptied.44
12
Mrs. Braskett led Fender and Tobey to the garage to check the
13 garbage can for medication bottles which had been put in the
14 garbage can that day.45
According to Tobey, Mrs. Braskett opened
15 the lid to the garbage can.46
16 garbage can.47
Fender does not recall who opened the
The garbage can contained a clear plastic garbage
17
18
19
41
For the purposes of clarity, “wastebasket”
exclusively to the one in the computer room.
42
20
refers
Ex. 2, B. Braskett Depo. 106:16-24; 159:13-19.
43
For the purposes of clarity, “garbage can” refers exclusively to the household garbage can. (Mrs. Braskett describes it as
22 a “big blue thing, with a lid on wheels.” Ex. 2, B. Braskett Depo.
102:17.)
It is placed at the curb for periodic pickup by the
23 garbage service.
21
24
44
Ex. 2, B. Braskett Depo. 102:4-21; 104:5-105:24; 106:7107:60; 159:13-19.
25
26
45
Ex. 4, Tobey Depo. 42:1-6.
27
46
Ex. 4, Tobey Depo. 35:14-19.
28
47
Ex. 3, Fender Depo. 103:22-104:1.
9 - MEMORANDUM OPINION AND ORDER
1 bag, and one could clearly see that it contained Vicodin bottles.48
2 Mrs. Braskett said the bag contained what Mr. Braskett had cleaned
3 up during the day.49
4
Mrs. Braskett offered to get an umbrella with a hook so that
5 she could retrieve the garbage bag.50
6 bag.51
Fender did not retrieve the
Tobey does not remember who removed the bag from the garbage
7 can, but believes that Mrs. Braskett opened the garbage bag and
8 handed the bottles to Fender.52
Mrs. Braskett recalls Tobey
9 reaching into the garbage can, removing the bag of prescription
10 bottles from the garbage can, opening the bag, and removing the
11 prescription bottles from the bag.53
12
Fender does not recall whether she physically handled the
13 bottles at the Braskett residence, but when Fender and Tobey left
14 the Braskett residence, they took the empty medication bottles with
15 them.54
16 / / /
17 / / /
18 / / /
19
20
48
Ex. 2, B. Braskett Depo. 159:21-24; Ex. 3, Fender Depo.
21 103:14-21; Ex. 4, Tobey Depo. 35:14-19.
22
49
Ex. 4, Tobey Depo. 35:18-19.
23
50
Ex. 2, B. Braskett Depo. 160:4-22.
24
51
Ex. 3, Fender Depo. 103:24-104:1.
25
52
Ex. 4, Tobey Depo. 35:14-17; 36:17-22; 42:20-43:3; 49:25-
26 50:2.
27
53
Ex. 2, B. Braskett Depo. 107:12-20; 159:25-160-22.
28
54
Ex. 3, Fender Depo. 104:9-13.
10 - MEMORANDUM OPINION AND ORDER
SUMMARY JUDGMENT STANDARDS
1
2
Summary judgment should be granted “if the movant shows that
3 there is no genuine dispute as to any material fact and the movant
4 is entitled to judgment as a matter of law.”
5 56(c)(2).
Fed. R. Civ. P.
In considering a motion for summary judgment, the court
6 “must not weigh the evidence or determine the truth of the matter
7 but only determine whether there is a genuine issue for trial.”
8 Playboy Enters., Inc. v. Welles, 279 F.3d 796, 800 (9th Cir. 2002)
9 (citing Abdul-Jabbar v. General Motors Corp., 85 F.3d 407, 410 (9th
10 Cir. 1996)). The Ninth Circuit Court of Appeals has described “the
11 shifting burden of proof governing motions for summary judgment” as
12 follows:
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
The moving party initially bears the burden of
proving the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d
265 (1986). Where the non-moving party bears
the burden of proof at trial, the moving party
need only prove that there is an absence of
evidence to support the non-moving party’s
case. Id. at 325, 106 S. Ct. 2548. Where the
moving party meets that burden, the burden
then shifts to the non-moving party to
designate specific facts demonstrating the
existence of genuine issues for trial. Id. at
324, 106 S. Ct. 2548. This burden is not a
light one.
The non-moving party must show
more than the mere existence of a scintilla of
evidence.
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252, 106 S. Ct. 2505, 91 L. Ed.
2d 202 (1986). The non-moving party must do
more than show there is some “metaphysical
doubt” as to the material facts at issue.
Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586, 106 S. Ct.
1348, 89 L. Ed. 2d 528 (1986). In fact, the
non-moving party must come forth with evidence
from which a jury could reasonably render a
verdict in the non-moving party’s favor.
Anderson, 477 U.S. at 252, 106 S. Ct. 2505.
In determining whether a jury could reasonably
render a verdict in the non-moving party’s
favor, all justifiable inferences are to be
11 - MEMORANDUM OPINION AND ORDER
1
drawn in its favor.
2505.
Id. at 255, 106 S. Ct.
2
3 In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th
4 Cir. 2010).
5
DISCUSSION
6
7
In the Amended Complaint, Braskett brings this 42 U.S.C.
8 § 1983 claim alleging the defendants breached his Fourth Amendment
9 rights by entering the Braskett residence without his consent, and
10 conducting a search without a warrant or exigent circumstances.
11 Specifically, Braskett contends that in the course of the search,
12 the defendants violated his Fourth Amendment rights by searching
13 his medicine cabinet, taking medical records, going through the
14 garbage, and retrieving a handgun from the dresser.55
In the face
15 of the defendants’ assertion that Mrs. Braskett consented to the
16 search, Mr. Braskett contends that, at the time, Mrs. Braskett did
17 not have the capacity to consent.
18
In addition, the defendants claim that even if Braskett could
19 show his constitutional rights were violated, the defendants are
20 entitled to summary judgment because qualified immunity shields
21 them from liability.
The defendants seek summary judgment on all
22 of Mr. Braskett’s claims.
23
Burden of Proving Incapacity
24
25
The
parties
dispute
whether
the
burden
of
proving
26 Mrs. Braskett’s capacity to consent to a search falls upon the
27
28
55
Johnston Decl., Ex. 1, R. Braskett Depo. 34:8-15.
12 - MEMORANDUM OPINION AND ORDER
1 defendants,
as
the
state
actors,
2 Mr. Braskett, as the civil plaintiff.
or
must
be
carried
by
Mr. Braskett challenges the
3 officers' reliance on Mrs. Braskett's consent, claiming she was too
4 tired and too stressed to be able to make a voluntary decision to
5 consent.
He makes this argument with respect to each alleged
6 constitutional violation.
7
Mr. Braskett alleges the government always has the burden of
8 proving the existence of consent, citing United States v. Shaibu,
9 920 F.2d 1423, 1426 (9th Cir. 1990).56
The defendants respond that
10 Shaibu is a criminal case, and is inapplicable to this § 1983
11 claim.57
The defendants allege Mr. Braskett carries the burden of
12 proving lack of consent, citing Ninth Circuit authority.
13
[In] a criminal case, the government bears the
burden of proving by a preponderance of the
evidence that consent was freely and voluntarily given. In a civil case under 42 U.S.C.
1983, however, the plaintiff carries the ultimate burden of establishing each element of
his or her claim, including lack of consent.
14
15
16
17 Pavao v. Pagay, 307 F.3d 915, 918-19 (9th Cir. 2002).
18
In Larez v. Holcomb, 16 F.3d 1513 (9th Cir. 1994), the
19 plaintiff brought a § 1983 action against police officers for
20 wrongful detention.
Larez was seized by officers and detained for
21 questioning in connection with a murder investigation in which her
22 brother was a suspect.
Larez claimed she thought she was under
23 arrest; she was taken to the police station and held, in handcuffs,
24 for two hours; and she neither consented to be questioned, nor
25 responded to officers’ questions.
The officers told a different
26
27
56
Pl.’s Opp’n to Defs.’ Mot. Summ. J., at 8.
28
57
Reply in Supp. of Defs.’ Mot. for Summ. J., at 5.
13 - MEMORANDUM OPINION AND ORDER
1 story, claiming Larez was cooperative from the beginning; she
2 consented to being taken to the police station for questioning; and
3 she never was handcuffed.
The court held that while the burden of
4 producing evidence of consent may be placed on the defendant, the
5 risk of nonpersuasion remains with the plaintiff, who always has
6 the burden to prove a violation of the Fourth Amendment.
Larez, 16
7 F.3d at 1517 (citing Ruggiero v. Krzeminski, 928 F.2d 558, 563 (2d
8 Cir. 1991)).
See also, e.g., Bogan v. City of Chicago, 644 F.3d
9 563, 570 (7th Cir. 2011) (employing a “criminal burden of proof is
10 contrary to established principles governing civil trials, namely,
11 that ‘the ultimate risk of nonpersuasion must remain squarely on
12 the plaintiff’”) (citations omitted); Valance v. Wisel, 110 F.3d
13 1269, 1279 (7th Cir. 1997) (in a civil case, defendant must offer
14 evidence to meet or rebut the presumption that a warrantless search
15 is unreasonable, but plaintiff must prove consent was not given or
16 was invalid) (citing, inter alia, Fed. R. Evid. 301).
17
While Larez was a § 1983 case, that court did not consider the
18 issue of a third party’s consent.
Having examined the case law
19 surrounding § 1983 claims, it would appear that the issues arising
20 in
this
case
are
somewhat
unique.
Neither
counsel
for
the
21 plaintiff, nor the defendants, has made known to the court any case
22 which concerned a § 1983 claim alleging a violation of the Fourth
23 Amendment, where the plaintiff challenged the capacity of a third
24 party to consent, after the § 1983 defendants relied on that third
25 party’s consent to justify their search.
I note the defendants
26 here plead the consent of Mrs. Braskett as an affirmative defense
27 to avoid the § 1983 claim of a constitutional violation.
See Fed.
28 R. Civ. P. 8(c)(1) (requiring a party to state a matter of
14 - MEMORANDUM OPINION AND ORDER
1 avoidance as an affirmative defense).
On these facts, it seems
2 appropriate that Braskett must prove he did not consent to any
3 search, but if the defendants want to avoid a constitutional
4 violation by relying on Mrs. Braskett’s consent, they should have
5 the burden of proving its validity. However, resolution of who has
6 this burden is not essential in deciding this motion for summary
7 judgment. To avoid summary judgment, Braskett is required to raise
8 a material question of fact about the capacity of Mrs. Braskett to
9 consent to a search of the Braskett residence.
I turn to that
10 issue.
11
“[W]hether a consent to a search was in fact ‘voluntary’ or
12 was the product of duress or coercion, express or implied, is a
13 question of fact to be determined from the totality of all the
14 circumstances.”
United States v. Garcia, 997 F.2d 1273, 1281-82
15 (9th Cir. 1993) (citing Schneckloth v. Bustamonte, 412 U.S. 218,
16 226-27, 93 S. Ct. 2041, 2047-28, 36 L. Ed. 2d 854 (1973)).
Both
17 parties agree that this holistic standard is the proper test in the
18 instant case.58
Braskett claims that all of the factors weighing
19 upon Mrs. Braskett on the night of April 13, 2010, made her
20 incapable
of
consenting.
The
defendants
assert
the
factors
21 weighing upon Mrs. Braskett that night were not sufficiently
22 incapacitating so as to prevent her from consenting to a search of
23 the Braskett residence.
24
The defendants cite numerous cases concerning the threshold
25 for a finding of incapacity to consent.
The cases set the bar
26
27
58
Reply in Supp. Defs.’ Mot. Summ. J., at 10; Pl.’s Opp’n to
28 Defs.’ Mot. Summ. J., at 8.
15 - MEMORANDUM OPINION AND ORDER
1 quite high for a finding of incapacity.
In United States v.
2 George, 987 F.2d 1428 (9th Cir. 1993), the defendant had overdosed
3 on heroin, and was questioned by police several hours later, while
4 he was still in critical condition. The court held the defendant’s
5 consent for officers to search his hotel room was voluntary,
6 finding his condition “did not render him unconscious or comatose,”
7 and his consent was not coerced by the police.
George, 987 F.2d at
8 1430. Similarly, in United States v. Martin, 781 F.2d 671 (9th Cir.
9 1985), the defendant was questioned by police in the hospital,
10 while he was under the influence of pain medication.
The court
11 held the defendant’s consent to search was voluntary:
12
Martin was awake and relatively coherent
during the questioning at the hospital. . . .
There is no evidence of extended and oppressive questioning.
Nor had Martin received
excessive quantities or unusual combinations
of drugs. Martin’s injuries, while painful,
did not render him unconscious or comatose.
Moreover, Martin said that he wanted to talk
to the officers and was not reluctant to tell
his story.
13
14
15
16
17
18 Martin, 781 F.2d at 674.
19
In United States v. Freyre-Lazero, 3 F.3d 1496 (11th Cir.
20 1993), involving a factual situation similar to the one in the case
21 at hand, the defendant alleged his wife was unable to consent to a
22 search
of
the
defendant’s
home
because
she
was
emotionally
23 distraught after having seen her son being arrested earlier that
24 day. The court affirmed the district court’s finding that the wife
25 was capable of consenting, noting she had a “rational demeanor,”
26 and although she had witnessed her son’s arrest, “both detectives
27 testified
that she
was
not
28 implications of the search.”
too
comprehend
the
Freyre-Lazero, 3 F.3d at 1501.
See
16 - MEMORANDUM OPINION AND ORDER
distraught
to
1 also United States v. Mancias, 350 F.3d 800, 805-06 (8th Cir. 2003)
2 (defendant’s
extreme
fatigue
did
not
render
his
consent
3 involuntary); United States v. Duran, 957 F.2d 499, 503 (7th Cir.
4 1992) (“[T]he fact that a consenting party is extremely upset at
5 the time she consents is not dispositive. . . .
[A]bsent a showing
6 that her emotional distress was so profound as to impair her
7 capacity for self-determination or understanding of what the police
8 were seeking, it is not enough to tip the balance towards finding
9 that her consent was involuntary.”).
10
Examining all of the factors in the instant case, the record
11 does
not
reflect
circumstances
or
factors
12 Mrs. Braskett to be incapable of consenting.
which
caused
In April 2010,
13 Mrs. Braskett was an elementary school teacher, and was capable of
14 attending work, driving her car, and caring for her children.59 She
15 expressed concerns about her husband’s alleged use of alcohol and
16 other drugs, and other stressors in their lives.
When asked
17 whether there were any guns in the house, Mrs. Braskett not only
18 recalled that there was a gun and its location, she led the
19 defendants to the gun, and asked them to unload it and to place it
20 in the gun safe.
She then took the defendants to the garage and
21 unlocked the gun safe.
These are not the actions of an incoherent
22 or markedly impaired individual.
They raise no issue about her
23 capacity to consent.
24
There
25 questioning.
is
no
evidence
here
of
extended
or
oppressive
Other evidence shows Mrs. Braskett was capable of
26
27
59
Ex. 2, B. Braskett Depo. 70:21-22; Ex. 3, Fender Depo.
28 101:11-22.
17 - MEMORANDUM OPINION AND ORDER
1 rational decision-making.
She told the officers she had taken
2 Tylenol PM, a painkiller with a sleeping agent, because she did not
3 want to mix Motrin, which she was taking for her injured shoulder,
4 with a regular sleeping agent.60
I find that while Mrs. Braskett
5 had a painful shoulder injury at the time, and was under some
6 degree of stress due to other events in her life, no reasonable
7 juror could find, on these facts, that Mrs. Braskett did not
8 voluntarily consent to the “searches,” given the standards for that
9 analysis in the Ninth Circuit.
Regardless of who has the burden of
10 persuasion on the issue of Mrs. Braskett’s capacity to consent,
11 Mr. Braskett has not shown the existence of a material issue of
12 fact in that regard.
13
Ruse
14
15
Mr. Braskett further alleges that Fender and Tobey obtained
16 entry into the Braskett residence through a lie.
Mr. Braskett
17 claims Fender and Tobey went to the Braskett residence and told
18 Mrs. Braskett they were there to talk about her safety when, in
19 fact, they were there to conduct a criminal investigation into
20 Mr. Braskett’s use of drugs.
As such, Mr. Braskett claims that
21 before Mrs. Braskett invited Fender and Tobey into the house, they
22 lied about the purpose of their visit.
23 was impermissible.
Mr. Braskett argues this
During oral argument, Mr. Braskett’s counsel
24 cited the recent case of Cohen v. Boyle, slip op., 2012 WL 1292431
25 (W.D. Wash. Apr. 16, 2012), for the proposition that although
26 officers may use a ruse to gain entry to a residence in some
27
28
60
Keaney Decl., Ex. 1, B. Braskett Dep, ECF p. 40.
18 - MEMORANDUM OPINION AND ORDER
1 circumstances, it is impermissible for officers to gain entry into
2 a residence by “‘misrepresenting the scope, nature or purpose of a
3 government investigation.’” Cohen, 2012 WL 1292431 at *9 (quoting
4 United States v. Bosse, 898 F.2d 113, 115 (9th Cir. 1990)).61
5
Cohen, itself, is not on point here, and Bosse and other Ninth
6 Circuit precedents cited by the Cohen court would actually support
7 the defendants’ position - if, in fact, they had employed a ruse to
8 gain entry into the residence.
9 employed.
However, I find no ruse was
The record indicates that at the time Mrs. Braskett
10 invited Fender and Tobey into the residence on April 13, 2010, she
11 was aware that one of the subjects about which the officers wanted
12 to talk to her was the safety of her and her children.
13 “search” on that date involved Mr. Braskett’s gun.
The only
On April 14,
14 2010, Mrs. Braskett was aware the officers were there regarding
15 prescription pill bottles.
16 the
only
items
involved
She went looking for them.
in
the
“searches”
on
Those were
the
14th.
17 Mrs. Braskett concedes she knew, in April 2010, that the officers
18 were at the house regarding Mr. Braskett’s use of prescription
19 medications.
20 both.
She knew that on either the 13th, or the 14th, or
Because she knew it at least by the 14th, there was no ruse.
21 I find Mrs. Braskett voluntarily consented to the officers’ entry
22 into the residence on both dates. She was not impermissibly misled
23 by their statements regarding why they were there.
The searches
24 were not unconstitutional on this basis.
25 / / /
26 / / /
27
28
61
See Oral Argument Tr., July 9, 2012, at 50:13-51:4.
19 - MEMORANDUM OPINION AND ORDER
42 U.S.C. § 1983 Violations
1
2
Section 1983 provides, in relevant part, that “[e]very person
3 who, under color of any statute, ordinance, regulation, custom, or
4 usage, of any State . . . subjects, or causes to be subjected, any
5 citizen
of
the
United
States
or
other
person
within
the
6 jurisdiction thereof to the deprivation of any rights, privileges,
7 or immunities secured by the Constitution and laws, shall be liable
8 to the party injured in an action at law, suit in equity, or other
9 proper proceeding for redress.”
10
A plaintiff raising a 42 U.S.C. § 1983 claim must show that a
11 person
acting
under
12 constitutional right.
color
of
state
law
deprived
him
of
a
Dowe v. Total Action Against Poverty, 145
13 F.3d 653, 658 (4th Cir. 1998).
Section 1983 “is not itself a
14 source of substantive rights, but merely provides a method for
15 vindicating federal rights elsewhere conferred.
The first step in
16 any such claim is to identify the specific constitutional right
17 allegedly infringed.” Albright v. Oliver, 510 U.S. 266, 114 S. Ct.
18 807, 811-812, 127 L. Ed. 2d 114 (1994) (internal citations and
19 quotation marks omitted).
20
21
22
Fourth Amendment Violations
The Fourth Amendment provides that “the right of the people to
23 be secure in their persons, houses, papers, and effects, against
24 unreasonable searches and seizures, shall not be violated. . . .”
25 U.S. Const. Amend. IV.
26
The Fourth Amendment is violated when a search is conducted
27 without a warrant issued upon probable cause. A warrantless search
28 is “per se unreasonable. . . subject only to a few specifically
20 - MEMORANDUM OPINION AND ORDER
1 established
and
well-delineated
exceptions.”
Schneckloth
v.
2 Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043, 36 L. Ed. 2d
3 854 (1973).
4
“The prohibition does not apply, however, to situations in
5 which
voluntary
consent
has
been
obtained,
either
from
the
6 individual whose property is searched, or from a third party who
7 possesses
common
authority
over
the
premises.”
Illinois
v.
8 Rodriguez 497 U.S. 177, 181, 110 S. Ct. 2793, 2797, 111 L. Ed. 2d
9 148 (1990)(internal citations omitted).
10
Common authority is, of course, not to be
implied from the mere property interest a
third party has in the property.
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.
11
12
13
14
15
16
17
18 United States v. Matlock, 415 U.S. 164, 171 n.7, 94 S. Ct. 988, 993
19 n.7, 39 L. Ed. 2d 242(1974) (internal citations omitted).
20
In a § 1983 claim such as this, to avoid summary judgment, a
21 plaintiff must raise a material issue of fact regarding whether the
22 person giving consent had common authority over the area searched.
23 The Matlock Court held that “the consent of one who possesses
24 common authority over premises or effects is valid as against the
25 absent, nonconsenting person with whom that authority is shared.”
26 Matlock, 415 U.S. at 170, 94 S. Ct. at 993.
27
The
Ninth
Circuit
has
summarized
post-Matlock
cases
as
28 requiring that “a consent-giver with limited access to the searched
21 - MEMORANDUM OPINION AND ORDER
1 property lacks actual authority to consent to a search. . . .
The
2 cases upholding searches generally rely on the consent-giver's
3 unlimited access to property to sustain the search.”
U.S. v. Kim,
4 105 F.3d 1579, 1582 (9th Cir. 1997).
5
The Ninth Circuit has upheld a spouse’s authority to consent
6 to police entering a property in which both she and the defendant
7 lived as co-tenants, finding the consent-giver was a joint-user of
8 the property, with full access to the property, and as such, could
9 consent to the police searching the property.
10 Guzman, 852 F.2d 1117, 1121 (9th Cir. 1988).
United States v.
In United States v.
11 Sealey 830 F.2d 1028 (9th Cir. 1987), the defendant’s spouse
12 consented to police searching the property.
13 found
the
defendant’s
wife
had
mutual
The Ninth Circuit
access
to
the
entire
14 property, she was part owner of the residence, she was married to
15 the defendant, and she had full access to all parts of the
16 residence.
The defendant asserted that he retained sole ownership
17 over sealed containers, to the exclusion of his wife. However, the
18 Ninth Circuit rejected this assertion because, on the facts, the
19 defendant had failed to mark the containers in such a way as to
20 indicate his sole ownership.
21
Analysis
22
23
In this case, Braskett claims the defendants entered his home,
24 conducted a search with neither a warrant nor exigent circum25 stances, and removed property from the Braskett residence, all
26 without his consent.
Braskett alleges these actions violated his
27 right to be free from “unreasonable search and seizure under the
28
22 - MEMORANDUM OPINION AND ORDER
1 Fourth Amendment.”62
Specifically, Braskett contends that in the
2 course of the search, the defendants violated his Fourth Amendment
3 rights by searching his medicine cabinet, taking medical records,
4 going through the garbage, and retrieving a handgun from the
5 dresser.
Braskett contends that at the time, Mrs. Braskett was
6 incapable of consenting.
7
On or around April 12, 2010, Mrs. Braskett asked Mr. Braskett
8 to move out of the family home.
Mrs. Braskett remained in the
9 house with their two children.63 On Tuesday, April 13, 2010, Fender
10 and Tobey went to the Braskett residence, identified themselves to
11 Mrs. Braskett as members of the PPB, and talked with Mrs. Braskett
12 at the kitchen table.64
13
Mr. and Mrs. Braskett are both on the title to the property.
14 They both had unfettered access to the entire house.
Neither of
15 them, on this record, had ever physically or verbally excluded the
16 other from an area within the house.65
In fact, on the dates in
17 question, there is no material issue of fact that Mrs. Braskett had
18 “common authority” over all areas of the residence, and thus was
19 able to validly consent to the defendants’ search of the residence.
20 / / /
21 / / /
22
23
62
24
63
First Amend. Comp. ¶¶ 7 & 8.
Ex. 1, R. Braskett Depo. 31:19-23; Ex. 2, B. Braskett Depo.
25 69:20-70:24.
26
64
Ex. 3, Fender Depo. 58:5-7; Ex. 2, B. Braskett Depo. 77:18-
79:6.
27
65
Ex. 1, R. Braskett Depo. 70:1-8; 81:2-5; Ex. 2, B. Braskett
28 Depo. 110:13-16; 111:5-8.
23 - MEMORANDUM OPINION AND ORDER
1 I.
Removal of gun from master bedroom dresser
2
While
sitting
at
the
kitchen
table
on
April
13,
2010,
3 Mrs. Braskett expressed her concern about Mr. Braskett’s firearms
4 around the house, and the danger they posed should their children
5 gain access to them.66
Mrs. Braskett led Fender and Tobey to the
6 master bedroom, informed them that Mr. Braskett had a gun in the
7 dresser, and asked them to remove the gun. Tobey entered the
8 bedroom and removed the gun.67
Fender did not enter the dresser to
9 remove the gun, and did not touch the gun at any stage.68
10 assumed
that
Mrs.
Braskett
had
access
to
the
Tobey
dresser.69
11 Mrs. Braskett allowed Tobey to unload the ammunition from the gun.70
12 Mrs. Braskett opened the gun safe in the garage.
The gun safe had
13 a touchpad lock to which Mrs. Braskett knew the combination.71
14 Tobey
placed
the
gun
in
the
safe
in
the
15 Mrs. Braskett did not want the gun in the house.72
garage
because
Neither Fender
16 nor Tobey removed the firearm from the Braskett residence at any
17 time.
18
19
66
Ex. 3, Fender Depo. 72:13-16; 75:20-22.
20
67
Ex. 2, B. Braskett Depo. 97:7-13; Ex. 4, Tobey Depo. 23:20-
21 24:5.
22
68
Fender Decl. ¶3; Ex. 3, Fender Depo. 72:12-21; 73:13-20;
79:7-12.
23
69
24
Ex. 4, Tobey Depo. 27:8-28:6.
70
25
26
Ex. 2, B. Braskett Depo. 97:11-16; 156:10-12; Ex. 3, Fender
Depo. 73:1-4.
71
Ex. 2, B. Braskett Depo. 97:11-24.
27
72
Ex. 2, B. Braskett Depo. 97:25-98:2; Ex. 4 Tobey Decl.
28 24:13-14.
24 - MEMORANDUM OPINION AND ORDER
1
The defendants allege that Fender is entitled to summary
2 judgment because she, unlike Tobey, did not touch the gun at any
3 point.73 One of the reasons Fender and Tobey went to the Braskett
4 residence was to ensure that Mrs. Braskett and her children were
5 safe.74 The removal of the gun from the master bedroom dresser, and
6 its subsequent placement in the gun safe, was in line with the
7 purpose of ensuring the safety of Mrs. Braskett and her children.
8 Both officers were at the residence inquiring about Mrs. Braskett’s
9 safety.
It would be an artificial distinction, and contrary to
10 Fender’s announced purpose for being there, to find that Fender was
11 not involved in the removal of the gun from the master bedroom
12 dresser.
She was present in the Braskett residence when Tobey
13 moved the gun to ensure the safety of Mrs. Braskett and her
14 children.
15
Both officers were involved in the safety conversation.
However, there are no issues of material fact with respect to
16 the gun.
Mrs. Braskett had common authority over the entire
17 Braskett residence.
She knew the gun was in the dresser, and knew
18 the combination code for the gun safe.
This is consistent with her
19 having “common authority” over at least those areas associated with
20 the guns in the house.
Tobey only entered the dresser at the
21 request of and with the consent of Mrs. Braskett.
The defendants
22 are entitled to summary judgment with respect to the gun because
23 the "search," which defendant does not contest for purposes of this
24 motion, was done with appropriate consent.
25
26
73
Memo in Supp. of Defs.’ Motion Summ. J., 14.
74
Ex. 2, B. Braskett Depo. 77:13-17; Ex. 4, Tobey Depo. 12:20-
27
28 25.
25 - MEMORANDUM OPINION AND ORDER
1 II.
Search of the medicine cabinet
2
On April 14, 2010, Fender and Tobey returned to the Braskett
3 residence to determine whether Mr. Braskett had his own prescrip4 tion for painkiller medication.75
Mrs. Braskett arrived home from
5 work, and invited Fender and Tobey inside the Braskett residence.76
6 Mrs. Braskett went upstairs to retrieve one of Mr. Braskett’s
7 medication bottles, but she was unable to find one initially
8 because Mr. Braskett had been in the house and gotten rid of them.77
9 Mrs. Braskett obtained prescription bottles from her husband’s
10 medicine cabinet in the master bathroom and showed them to Fender,
11 who wrote information from the labels on a piece of paper, but did
12 not remove the bottles from the Braskett residence.78
Neither
13 Fender nor Tobey ever went into either the medicine cabinet or the
14 master bathroom on April 14, 2010.79
15
The record illustrates that there was no part of the Braskett
16 residence from which either spouse was excluded.
Matlock made the
17 point that common authority is not derived from a proprietary
18 interest, but rather is based upon the mutual use of the property
19 such that “it is reasonable to recognize that any of the co20 inhabitants has the right to permit the inspection in his own right
21
22
75
Tobey Depo. 34:18-22; Ex. 3, Fender Depo. 101:5-12.
23
76
Ex. 3, Fender Depo. 101:5-22; Ex. 4, Tobey Depo. 34:22-24;
24 Ex. 2, B. Braskett Depo. 100:4-5.
25
77
Ex. 3, Fender Depo. 102:8-19; Ex. 4, Tobey Depo. 35:3-10.
26
78
Ex. 2, B. Braskett Depo. 101:8-102-2; 103: 16-104:4.
27
79
Ex. 2, B. Braskett Depo, 101:8-25; Ex. 3, Fender Depo.
28 133:15-21; Tobey Decl. ¶6; Fender Decl. ¶4.
26 - MEMORANDUM OPINION AND ORDER
1 and that the others have assumed the risk that one of their number
2 might permit the common area to be searched.” Matlock, 415 U.S. at
3 171 n.7, 94 S. Ct. at 993 n.7.
4
Braskett claims that when he left his medication in the
5 bathroom, he had a reasonable expectation of privacy, as he did not
6 expect the PPB to come to his home.80
The Ninth Circuit considered
7 the scope of the mutual use doctrine in United States v. Welch, 4
8 F.3d. 761 (9th Cir. 1993).
9 drove to Las Vegas.
There, McGee and Welch rented a car and
Both were subsequently arrested.
10 consented to a search of the car.
McGee
The Ninth Circuit upheld the
11 search of the car because both McGee and Welch had joint access to
12 and mutual use of it, and “by sharing access to and use of the car
13 with McGee, Welch relinquished, in part, her expectation of privacy
14 in Fourth Amendment interests in the car.”
Welch, 4 F.3d at 764.
15 However, the court found Welch did not relinquish her expectation
16 of privacy in her purse which was in the car.
Id.
“The shared
17 control of ‘host’ property does not serve to forfeit the expecta18 tion of privacy in containers within that property.” Id. (internal
19 citations and quotation marks omitted).
20
When applied to the instant case, Mr. Braskett apparently
21 contends that, irrespective of Mrs. Braskett’s authority over the
22 master bathroom and medicine cabinet (i.e., the “host property”),
23 Mr. Braskett had not necessarily forfeited an expectation of
24 privacy in the medical records contained therein.81
25 considers
each
of
the
prescription
bottles
to
26
27
80
Oral Arg. Tr., July 9, 2012, at 56:21-57:9.
28
81
Ex. 1, R. Braskett Depo. 72:16-20.
27 - MEMORANDUM OPINION AND ORDER
Mr. Braskett
constitute
a
1 confidential
record.82
medical
Here,
Mr.
Braskett
fails
to
2 substantiate his claim that he had retained a reasonable expecta3 tion of
privacy
4 prescription
in
the
bottles.
medical information
Rather,
than
contained
storing
his
on
his
prescription
5 bottles exclusively in his medicine cabinet, Mr. Braskett concedes
6 that, on occasion, he left his prescription bottles around the
7 house.83
When Mr. Braskett disposed of his prescription bottles,
8 he did nothing to destroy the “confidential medical records”
9 contained on those bottles.84
Further, Mr. Braskett has never made
10 any effort to exclude Mrs. Braskett from his medicine cabinet.85
11
In the instant case, when Mr. Braskett left the prescription
12 bottles
13 Mrs.
in
the
Braskett
master
also
had
bathroom
use
of,
and
medicine
he
assumed
cabinet
the
14 Mrs. Braskett might permit that area to be searched.
risk
which
that
Similarly,
15 there is nothing in the record to support any effort to exclude
16 Mrs. Braskett from the information on the outside of the prescrip17 tion bottles.
18
On these facts, Fender and Tobey are entitled to summary
19 judgment on this issue as a matter of law.
Their receipt of the
20 information on the outside of the prescription bottles from the
21 medicine cabinet was obtained by valid consent.
22 / / /
23 / / /
24
82
Ex. 1, R. Braskett Depo. 72:21-73:1.
26
83
Ex. 1, R. Braskett Depo. 73:6-11.
27
84
Ex. 1, R. Braskett Depo. 73:12-24.
28
85
Ex. 1, R. Braskett Depo. 70:9-12.
25
28 - MEMORANDUM OPINION AND ORDER
1 III. Search of the garbage can and removal of prescription
bottles from the garbage can
2
3
The defendants assert that Fender is entitled to summary
4 judgment because she did not search the garbage can, or remove
5 anything from the garbage can, whereas Tobey is entitled to summary
6 judgment
because
he
conducted
a
search
with
the
consent
of
7 Mrs. Braskett.86 The defendants made a similar assertion concerning
8 the removal of the gun from the master bedroom dresser.
Both
9 officers returned to the Braskett residence on April 14, 2010, for
10 the purpose of obtaining evidence that Mr. Braskett had prescrip11 tions for his medications in his own name.
12 and fall together.
These arguments rise
It would be an artificial distinction to say
13 that Fender was not involved in the search of the garbage can.
The
14 search of the garbage can was in connection with the officers’
15 joint purpose for being there.
16
Braskett alleges the defendants violated his Fourth Amendment
17 rights by searching through his garbage can on April 14, 2010.
The
18 record reflects neither who placed the garbage can at the curb, nor
19 when the garbage can was placed at the curb.
However, it appears
20 it was Mr. Braskett, himself, who removed the prescription bottles
21 from the computer room and placed them, along with the contents of
22 the computer room wastebasket, in the garbage can on April 14,
23 2010.
It is unclear from the record exactly when Mr. Braskett put
24 the prescription bottles in the garbage can.
There are two
25 possibilities. First, Mr. Braskett placed the prescription bottles
26 in the garbage can in the garage, before the garbage can was taken
27
28
86
Memo in Supp. of Defs.’ Motion Summ. J., 16.
29 - MEMORANDUM OPINION AND ORDER
1 out to the curb.
Second, Mr. Braskett went to the curb and placed
2 the prescription bottles in the garbage can which had already been
3 taken out to the curb.
If it was the former, when the garbage can
4 was in the garage, it was in an area over which Mrs. Braskett had
5 common authority, and, as such, she could consent to a search of
6 the garbage can in that area.
If it was the latter, Mr. Braskett
7 had no expectation of privacy in the contents of the garbage can at
8 the curb for pickup.
As Mr. Braskett concedes, once garbage goes
9 to the curb, the owner has relinquished any privacy interest in its
10 contents.87
11
It is not disputed that Mrs. Braskett opened the garbage can
12 where Mr. Braskett’s prescription bottles were found.
There is a
13 dispute as to who retrieved the bag from the garbage can; however,
14 that dispute is not material.
Even viewing the facts in the light
15 most favorable to the non-moving party, there would be no violation
16 of
Mr.
Braskett’s
Fourth
Amendment
rights
arising
from
the
17 officers’ removal of the prescription medication bottles from the
18 garbage can, as it was done with the consent of Mrs. Braskett.
19
Mr. Braskett has failed to establish the existence of a
20 genuine
issue
of
material
fact
for
trial.
Therefore,
the
21 defendants’ motion for summary judgment on this claim is granted.
22 / / /
23 / / /
24 / / /
25 / / /
26 / / /
27
28
87
Ex. 1, R. Braskett Depo. 152:17-20.
30 - MEMORANDUM OPINION AND ORDER
1 IV.
Removal of confidential
prescription bottles
medical
information
from
2
3
Braskett alleges the defendants violated his Fourth Amendment
4 rights by taking medical records.
Braskett considers the informa-
5 tion contained on his prescription bottles to constitute a medical
6 record.88
It is not clear, but the court assumes he pursues this
7 theory with respect to the information on the prescription bottles
8 from the medicine cabinet and from the garbage can in the garbage.
9
Braskett admits he did not always keep his prescription
10 bottles secure in his medicine cabinet,89 and he concedes that when
11 he disposed of his prescription bottles, he did not attempt to
12 remove any of his personal information contained on the bottles.90
13 The plastic bag containing the empty prescription bottles was in
14 the garbage can inside the garage, and perhaps at the curb, as
15 well.
Mr. Braskett is aware that anybody could have accessed the
16 garbage can while it was on the street.91
Before he discarded the
17 prescription bottles, this record shows he left them in at least
18 two locations: the computer room and the master bathroom. Wherever
19 Mr. Braskett kept his prescription bottles was, on this record, a
20 place where Mrs. Braskett had unfettered access to the bottles and
21 the information on their labels.
As previously discussed, she had
22 common authority over both the locations from which prescription
23 bottles were retrieved.
24
88
Ex. 1, R. Braskett Depo. 72:21-73:1.
26
89
Ex. 1, R. Braskett Depo. 73:6-11.
27
90
Ex. 1, R. Braskett Depo. 73:2-24, 152:9-11.
28
91
Ex. 1, R. Braskett Depo. 73:2-24: 104:5-105:24; 152:9-11.
25
31 - MEMORANDUM OPINION AND ORDER
1
Mrs. Braskett consented to the removal of the prescription
2 bottles from the garbage can and from the medicine cabinet, and
3 therefore, there was no violation of the Fourth Amendment with
4 respect to the information on the outside of the bottles.
The
5 defendants are entitled to summary judgment here, as well.
6
CONCLUSION
7
8
For
the
reasons
discussed
above,
The
defendants’
motion
9 (Docket No. 30) for summary judgment is GRANTED.
10
11
IT IS SO ORDERED.
Dated this 3rd day of August, 2012.
12
/s/ Dennis J. Hubel
13
14
Dennis James Hubel
Unites States Magistrate Judge
15
16
17
18
19
20
21
22
23
24
25
26
27
28
32 - MEMORANDUM OPINION AND ORDER
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