Carman et al v. Carroll
Filing
36
MEMORANDUM and ORDER denying 20 plaintiff's Motion for Summary Judgment; and denying 24 dft's Motion for Partial Summary Judgment Signed by Honorable James M. Munley on 3/29/12 (sm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ANDREW CARMAN and
KAREN CARMAN,
Plaintiffs
:
No. 3:10cv1013
:
:
(Judge Munley)
:
v.
:
:
JEREMY CARROLL,
:
Defendant
:
:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Before the court are the parties’ cross-motions for summary
judgment. (Docs. 20, 24). Having been briefed, the motions are ripe for
disposition.
Background
Plaintiffs Andrew and Karen Carman (hereafter “plaintiffs”) resided at
101 Raspberry Path, Dingman’s Ferry, Pennsylvania. (Doc. 21, Pls.
Statem. of Mat. Facts (hereafter “Pls. Facts”) ¶ 1). On July 3, 2009,
plaintiffs were sitting in their kitchen with Jacqueline Vergottini, Karen
Carman’s sister. (Id. ¶ 4). Ms. Vergottini glanced out the window and
noticed police officers near plaintiffs’ shed.1 (Id. ¶ 25). Mr. Carman also
looked out the window and saw two officers, Pennsylvania State Troopers
Defendant Jeremy Carroll and Brian Roberts. (Id. ¶ 26).
The troopers were dispatched to the Carman residence to look for an
individual named Michael Zita, a felon parolee who had stolen a 2002
Chrysler Convertible and two loaded firearms. (Id. ¶¶ 10, 13; Doc. 25, Def.
Statem. of Mat. Facts (hereafter “Def. Facts”) ¶ 1). The police believed
that Zita may have been on his way, to or was at, the Carman residence.
(Def. Facts ¶ 2). The troopers did not have a search warrant for Carmans’
Both parties refer to the structure in plaintiffs’ back yard as either a
shed or garage.
1
property or an arrest warrant for Zita. (Pls. Facts ¶ 22). Upon arriving at
the Carman residence, the officers looked to see if the stolen vehicle was
parked outside their home. (Def. Facts ¶¶ 1, 3). It was not. (Id.) The
Carmans’ home is located on a corner property with a road in front of and
on the left side of their house. (Doc. 26, Ex. 4, Def. Carroll Tr. at 17).
Defendant and Trooper Roberts parked their respective cars on the side of
the property and proceeded to walked across plaintiffs’ back yard where
there was an open garage. (Def. Facts ¶¶ 3-4). Defendant described the
garage as a structure open in the front, back and partially on the sides that
had several cars in it. (Id. ¶ 4; Doc. 26, Def. Ex. 6). Without going inside,
the Troopers looked into the garage, but did not see the stolen vehicle.2
(Id. ¶ 4). They then proceeded up to the back deck attached to the
Carman residence. (Id. ¶ 6). Mr. Carman walked onto the deck to see
what the officers wanted. The parties largely dispute the events that
occurred after Mr. Carman went outside.
Plaintiffs claim that Mr. Carman asked if he could help the officers.
(Pls. Facts ¶ 28). The Troopers asked Mr. Carman, “Where is he?”
referencing the whereabouts of Michael Zita. (Id. ¶ 29). After Mr. Carman
learned who they were looking for, he explained that he went to school with
Michael Zita twenty-five or thirty years ago. (Id. ¶ 32). Defendant asked
him if he could take a look around and Mr. Carman refused. (Id. ¶ 33-34).
After Mr. Carman told defendant that Michael Zita was not on the property,
defendant told him to sit down. (Id. ¶ 40). Mr. Carman told the officers he
did not have to sit down. (Id. ¶ 41). The officers threatened to arrest Mr.
Carman. (Id. ¶ 42). Mr. Carman asked if they had a search warrant, which
Based on the facts, it appears that the plaintiffs only noticed the
officers after they looked into the garage.
2
2
they did not. (Id. ¶¶ 44-46). He told the officers that if they wanted to
search his home they would need a search warrant. (Id. ¶ 46). Mr.
Carman started to walk back to his home when Defendant Carroll pushed
him up against the sliding glass door and tackled him down the stairs, off
the deck. (Id. ¶¶ 49-50).
Mrs. Carman and Ms. Vergottini said that they saw Defendant Carroll
slam Mr. Carman against the sliding glass door. (Id. ¶ 51). When they
went outside Defendant Carroll was sitting on top of Mr. Carman and
pushing his head into the ground. (Id. ¶¶ 53-54). The women yelled at
defendant to get off Mr. Carman. (Id. ¶ 58). Mr. Carman yelled to call 911.
(Id. ¶ 61). At some point, Ms. Vergottini did call 911. (Id. ¶ 62). The 911
operator informed her that police were already at the residence, however
Ms. Vergottini explained that they were beating up her brother-in-law. (Id.
¶ 64). When Mr. Carman got up he had blood on his face and his shoulder
was injured. (Id. ¶ 60).
Defendant provides a different account of what happened after Mr.
Carman went outside onto the deck. Defendant explained that both he and
Trooper Roberts went onto the back deck of the house and were going to
knock on the back door. (Def. Facts ¶ 6). Mr. Carman exited the house
and said “Who the fuck are you?” (Doc. 29, Def. Resp. to Pls. Statem. of
Mat. Facts ¶ 28). Defendant explained who the troopers were and that
they were looking for Michael Zita. (Id. ¶ 29). Mr. Carman refused to
identify himself and was belligerent. (Id. ¶ 49). When Mr. Carman turned
to go back into the house, he put his hands “down his front” and out of view
of the officers. (Doc. 28, Def. Br. in Supp. of Def. Mot. for Partial Summ. J.
at 2). Defendant then grabbed Mr. Carman by the shoulder/forearm and
Mr. Carman suddenly whirled around, lost his balance and fell down two
steps onto the ground. (Id.).
3
Both parties agree that Mrs. Carman and Ms. Vergottini were yelling
at the officers and Trooper Roberts told them to back off or he would use
his taser. (Pls. Facts ¶ 59; Def. Facts ¶ 10). After Mr. Carman got up,
defendant explains that everyone was standing on the deck talking. (Def.
Facts ¶¶ 11-12). The officers informed the plaintiffs and Ms. Vergottini that
they were looking for Michael Zita. (Pls. Facts ¶ 66; Def. Facts ¶ 12). Mrs.
Carman explained to Defendant Carroll that she had not seen Michael Zita
for ten years and he was not on the property. (Pls. Facts ¶¶ 67-68).
Plaintiffs claim defendant then told Mrs. Carman that he wanted to search
their home. (Id. ¶ 69). After learning why the officers were there,
defendant asserts that Mrs. Carman invited everyone inside the house.
(Def. Facts ¶¶ 12, 13; Doc. 32, Pls. Reply Br. at 9).
Mrs. Carman claims that she felt compelled to give the officers
permission to search their home. (Pls. Facts ¶ 70). She explained that
she allowed the search because “[b]asically we weren’t hiding anything.
And I just wanted them to leave at that point.” (Def. Facts ¶ 14). The
officers searched the house with their guns drawn. (Pls. Facts ¶¶ 72-73).
Michael Zita was not in the house. (Id. ¶ 74). After the search, the officers
spoke with plaintiffs and Ms. Vergottini in plaintiffs’ kitchen. (Id. ¶ 75). The
plaintiffs were not charged with any crimes. (Id. ¶ 76).
On May 11, 2010, plaintiffs filed a complaint against Defendant
Jeremy Carroll pursuant to 42 U.S.C. § 1983. (Doc. 1). Count I of the
complaint alleges that defendant’s conduct constituted illegal entry on to
their property and into their home in violation of the Fourth and Fourteenth
Amendments. (Id.) Count II of the complaint alleges that defendant’s
conduct, including his use of force, constituted an unreasonable seizure of
Plaintiff Andrew Carman in violation of the Fourth and Fourteenth
Amendments. (Id.) Defendant filed an answer on July 13, 2010. (Doc. 5).
4
At the close of discovery both parties moved for summary judgment.
(Docs. 20, 24). Plaintiffs moved for summary judgment on all of their
claims. Defendant moved for partial summary judgment on Count I of the
complaint alleging illegal entry.
Jurisdiction
As this case is brought pursuant to 42 U.S.C. § 1983 for
constitutional violations, we have jurisdiction under 28 U.S.C. § 1331 (“The
district courts shall have original jurisdiction of all civil actions arising under
the Constitution, laws, or treaties of the United States.”).
Legal Standard
Before the court are the plaintiffs’ and defendant’s motions for
summary judgment. Summary judgment is proper “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter
of law. See Knabe v. Boury, 114 F.3d 407, 410 n.4 (3d Cir. 1997) (citing
FED. R. CIV. P. 56(c)). “[T]his standard provides that the mere existence of
some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
When considering a motion for summary judgment, the court must
examine the facts in the light most favorable to the party opposing the
motion. Int’l Raw Materials, Ltd. v. Stauffer Chem. Co., 898 F.2d 946, 949
(3d Cir. 1990). The burden is on the moving party to demonstrate that the
evidence is such that a reasonable jury could not return a verdict for the
non-moving party. Anderson, 477 U.S. at 248. A fact is material if it might
affect the outcome of the suit under the governing law. Id. Where the
5
non-moving party will bear the burden of proof at trial, the party moving for
summary judgment may meet its burden by showing that the evidentiary
materials of record, if reduced to admissible evidence, would be insufficient
to carry the non-movant’s burden of proof at trial. Celotex v. Catrett, 477
U.S. 317, 322 (1986). Once the moving party satisfies its burden, the
burden shifts to the non-moving party, who must go beyond its pleadings,
and designate specific facts by the use of affidavits, depositions,
admissions, or answers to interrogatories showing that there is a genuine
issue for trial. Id. at 324.
Discussion
The parties filed cross-motions for summary judgment. Plaintiffs
bring both counts in the complaint pursuant to 42 U.S.C. § 1983 (hereafter
“Section 1983"). Section 1983 does not, by its own terms, create
substantive rights. Rather, it provides remedies for deprivations of rights
established elsewhere in the Constitution or federal law. Kneipp v. Tedder,
95 F.3d 1199, 1204 (3d Cir. 1996). In pertinent part, Section 1983 provides
as follows:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of
the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity or other
proper proceeding for redress . . . .
42 U.S.C. § 1983. Thus, to establish a claim under Section 1983, two
criteria must be met. First, the conduct complained of must have been
committed by a person acting under color of state law. Second, the
conduct must deprive the plaintiff of rights secured under the Constitution
or federal law. Sameric Corp. of Del., Inc. v. City of Phila., 142 F.3d 582,
6
590 (3d Cir. 1998).
In the instant case, the parties do not dispute whether the defendant
acted under color of state law during the alleged violations. They only
move for summary judgment as to whether there was an illegal entry and
whether defendant unreasonably seized Mr. Carman with unreasonable
force. We will address the two counts in the complaint, in turn.
A. Illegal Entry
Both parties move for summary judgment on plaintiffs’ claim that
defendant illegally searched plaintiffs’ garage and home. Plaintiffs also
argue that defendant illegally entered on to the curtilage of their property.
The court will address each area of plaintiffs’ property–the curtilage, the
garage and the house–separately.
1. Curtilage
The Fourth Amendment protects “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures.” U.S. CONST. AMEND. IV. It is well-established that
the Fourth Amendment protections extend not only to a person’s home, but
also to the curtilage surrounding the property. United States v. Dunn, 480
U.S. 294, 301 (1987); Estate of Smith v. Marasco, 318 F.3d 497, 518 (3d
Cir. 2003). “Curtilage” is defined as “the area immediately adjacent to
[one’s] home in which he has a legitimate expectation of privacy.” United
States v. Bansal, 663 F.3d 634, 663 (3d Cir. 2011) (citations omitted).
In the instant case, plaintiffs argue that they are entitled to summary
judgment because defendant’s entry onto the curtilage of their property
violated their Fourth Amendment rights. Defendant does not dispute that
the area that he and Trooper Roberts entered was “curtilage” protected
under the Fourth Amendment. He contends that under the investigative
7
technique, “knock and talk,” the officers were allowed to knock on a
resident’s door or otherwise approach the residence to speak with the
inhabitants.
The Third Circuit has adopted the “knock and talk” exception to the
warrant requirement. Estate of Smith, 318 F.3d at 521. This technique
provides that “officers are allowed to knock on a residence’s door or
otherwise approach the residence seeking to speak to the inhabitants just
as any private citizen may.” Id. at 519. Officers should restrict their
movements to walkways, driveways, porches and places where visitors
could be expected to go. Id. (quoting Wayne R. LaFave, 1 Search and
Seizure: A Treatise on the Fourth Amendment § 2.3(f) (3d ed. & Supp.
2003)). Any observations made by the officers during their lawful entry
under this technique do not violate the Fourth Amendment. Id. However,
“[t]he flip side of this is that citizens are free not to cooperate with a ‘knock
and talk’ investigation, and, absent a warrant, police cannot detain them,
demand entry into their homes, or otherwise compel their cooperation
unless an exception to the warrant requirement applies.” United States v.
Butler, 405 F. App’x 652, 656-57 (3d Cir. 2010).
The “knock and talk” procedure is appropriate in a limited number of
circumstances where the police did not observe any criminal activity before
approaching the dwelling and did not know that the occupants were armed.
United States v. Coles, 437 F.3d 361, 368 n.12 (quoting United States v.
Jones 239 F.3d 716, 721 (3d Cir. 2001)). The “knock and talk” strategy is
used when officers seek to obtain the inhabitant’s consent to search or
when officers reasonably suspect criminal activity. Jones, 239 F.3d at 720;
see also United States v. Claus, No. 11-1412, 2012 WL 120081, at *3 (3d
8
Cir. Jan. 17, 2012) (explaining that the purposes of the “knock and talk”
procedure is to speak with occupants or ask for consent to search).
Some courts have extended this investigative tactic beyond the front
door of the home and to other areas of the property under a limited number
of circumstances. These situations often involve a failed attempt to either
approach the front door because of an obstruction or a failed attempt to
receive an answer at the front door. See Estate of Smith, 318 F.3d at 519
(gathering cases where courts found it was lawful for officers to move away
from the front door). The Third Circuit explained,
Where officers are pursuing a lawful objective,
unconnected to any search for the fruits and
instrumentalities of criminal activity, their entry into
the curtilage after not receiving an answer at the
front door might be reasonable as entry into the
curtilage may provide the only practicable way of
attempting to contact the resident . . . where the
front door was inaccessible. Similarly, officers
reasonably may believe, based on the facts
available to them, that the person they seek to
interview may be located elsewhere on property
within the curtilage . . . and . . . an officer’s brief
entry into the curtilage to test this belief might be
justified.
Id. at 520; see also United States v. Hammett, 236 F.3d 1054, 1060 (9th
Cir. 2001) (“an officer may, in good faith, move away from the front door
when seeking to contact the occupants of a residence.”).
In the instant case, defendant contends that he was lawfully present
on plaintiffs’ property attempting a “knock and talk.” Defendant and
Trooper Roberts approached plaintiffs’ residence to investigate the
whereabouts of Michael Zita, an armed felon. Plaintiffs’ back yard was not
fenced in, and there was no indication that it was closed off from the
general public. Plaintiffs assert that the defendant did not enter the
9
property through a route which any visitor or delivery person would use or
into an area where the general public had a right to be. Defendant
accessed the back yard of the property and went onto the back deck of
their home.
The cases addressing lawful “knock and talk” procedures involved
police officers approaching, or at least attempting to approach, the front
door of a person’s home. See Estate of Smith, 318 F.3d at 519.
However, in adopting the “knock and talk” procedure in Estate of Smith, the
Third Circuit explained that where an officer reasonably believes, based on
the facts available to him, that the occupant the officer wishes to speak
with may be located elsewhere on the property within the curtilage, they
may enter into the curtilage to test that belief. Id. at 520. Based on
defendant’s observations prior to entering the curtilage and subsequent
actions, we find that the there exists a question of whether the defendant’s
actions were reasonable in attempting a “knock and talk.” We find that this
question would be appropriately determined by the jury.
During defendant’s deposition, he explained that he and Trooper
Roberts “parked our patrol vehicles and went to the rear of the residence
where we parked. We had to park at the rear because there were [sic]
cars all along the side. Exited our patrol vehicles and entered the yard.”
(Doc. 30, Ex. D., Trooper Carroll’s Tr. at 16). He could not remember if he
and Trooper Roberts parked their cars on the side of the road or if there
was a driveway. (Id. at 18). Defendant explained “[t]here was an open
garage or shed there with some sort of light on, looked like somebody was
in it. We were just going to ask them if they saw Michael Zita.” (Id. at 17).
They walked to the garage and defendant “just peeked in, said
10
Pennsylvania State Police.” (Id. at 19). He did not receive a response and
determined no one was there. (Id.) The troopers then turned to go
towards the rear of the residence, walking through the Carmans’ back yard
and onto the deck.3
We find that in light of these circumstances, it may have been
reasonable for defendant to go into plaintiffs’ back yard after he thought
someone might be present on the curtilage of the property, rather than
going to the front door of the residence. It also may have been justified for
defendant to turn from the garage and proceed to the nearest entrance of
plaintiffs’ residence, the back door, after the defendant looked into the
garage and did not see anyone. While plaintiffs deny that the officers
entered the property by a route which a visitor or delivery person would
use, we simply do not know enough about the property to make such a
conclusion that defendant’s actions were unreasonable and thus unlawful.
Therefore, we will deny plaintiffs’ motion for summary judgment as to
defendant’s entrance onto the curtilage in violation of the Fourth
Amendment.
2. Garage
Both parties move for summary judgment on plaintiffs’ claim that
defendant illegally searched plaintiffs’ garage. The parties do not dispute
the facts as to how defendant came on to plaintiffs’ property or his
observation of the inside of the garage. Defendant again relies on the
“knock and talk” exception to justify his presence in plaintiffs’ back yard.
At Trooper Roberts’ deposition, he recalled, “The [garage] doors
were open on it and a light on. Went to the opening of the garage, looked
in, I didn’t see anybody in there.” (Doc. 30, Ex. E, Trooper Robert’s Tr. at
9).
3
11
He essentially argues that the inside of the garage was in his plain view.
A police officer may make a warrantless observation of objects in a
home’s curtilage within his plain view. Dunn, 480 U.S. at 304. The “plain
view” exception to the warrant requirement is usually applied in situations
where the police officer did not violate the Fourth Amendment in arriving at
the place where evidence was viewed and the evidence was immediately
apparent. See United States v. Stabile, 633 F.3d 219, 241 (3d Cir. 2011).
In Minnesota v. Dickerson, the Supreme Court explained,
Under that [plain view] doctrine, if police are lawfully
in a position from which they view an object, if its
incriminating character is immediately apparent,
and if the officers have a lawful right of access to
the object, they may seize it without a warrant.
508 U.S. 366, 375 (1993).
In the instant case, defendant explains that he and Trooper Roberts
were legitimately on the property investigating the whereabouts of Michael
Zita. He was attempting to conduct a “knock and talk” and did not violate
the Fourth Amendment by observing the inside of the garage while lawfully
present on the property. Defendant claims that these observations were in
his plain view and therefore did not constitute a search.
Pursuant to our finding above, defendant’s use of the “knock and
talk” technique involves a question as to whether defendant reasonably
believed, based on the facts, that a person he wished to speak with was
located elsewhere on the property within the curtilage and if it was
reasonable to enter the curtilage to test that belief. As the application of
the plain view doctrine rests on that preceding question of whether
defendant was lawfully present, we will deny the parties’ motion for
summary judgment as to defendant’s observations of the inside of the
12
garage.
3. House
Both parties move for summary judgment on plaintiffs’ claim that
defendant did not obtain valid consent before searching the plaintiffs’
home. Plaintiffs argue Mrs. Carman’s consent was not freely or voluntarily
obtained. Defendant contends Mrs. Carman invited the troopers into the
house and unequivocally granted permission to search the house.
Because the parties largely dispute the events and circumstances
surrounding Mrs. Carman’s consent, we will deny the parties’ motions for
summary judgment.
It is well-settled that the government may conduct a search without a
warrant or probable cause if an individual consents to the search.
Schneckloth v. Bustamonte, 412 U.S. 218, 227-28 (1973). “[W]hether a
consent to a search was in fact ‘voluntary’ or was the product of duress or
coercion, express or implied, is a question of fact to be determined from
the totality of all the circumstances.” Id. at 227. In such an examination,
the court should consider coercive questions and the possible vulnerable
subjective state of person who consents. Id. at 229. The court must also
consider the setting in which consent was obtained, including verbal and
non-verbal actions. United States v. Price, 558 F.3d 270, 278 (3d Cir.
2009) (quoting United States v. Givan, 320 F.3d 452, 459 (3d Cir. 2003)).
Attention should be given to the consenting individual’s age, intelligence
and educational background. Schneckloth, 412 U.S. at 226. Knowledge of
one’s right to refuse consent to search is but one factor to be taken into
account and is not dispositive of the issue of valid consent. United States
v. Kim, 27 F.3d 947, 955 (3d Cir. 1994).
13
In the instant case, the parties dispute the facts the led up to Mrs.
Carman’s consent to search plaintiffs’ home.4 In determining whether the
consent was voluntarily, we must examine the totality of the circumstances.
The setting in which Mrs. Carman granted the officers consent was after
the commotion between the officers, plaintiffs and Ms. Verrgottini. Both
plaintiffs and defendant cite to these portions of Mrs. Carman’s testimony:
Q. Who was it that indicated to the troopers they
could go inside and search the house?
A. I did.
Q. Why did you allow them to do that?
A. Basically, we weren’t hiding anything. And I just
wanted them to leave at that point.
(Doc. 26, Ex. A, Karen Carman Tr. at 36).
Q. Prior to the officer going in your house to
search, was everything calmed down and basically
under control?
A. I wouldn’t say calmed down but I said — in my
mind, if I let them go in and search for [Michael Zita]
everything — like I said, would just leave. I kind of
felt like I had to do that, you know, I had to let them
go in or nothing was going to calm down basically.
(Id. at 47- 48).
While the parties agree to Mrs. Carman’s description of how she
provided consent, they disagree as to the events that occurred prior to Mrs.
Carman’s granting such permission. Plaintiffs claim that Mrs. Carman saw
defendant push Mr. Carman up against the sliding glass door. (Pls. Facts
¶ 51). However, defendant contends that defendant went to grab Mr.
Defendant discusses “apparent authority” to grant permission to
search the premises. (Doc. 31, Def. Br. in Supp. at 7-8). However,
authority to grant consent is not at issue in this case. Plaintiffs’ do not
dispute that Mrs. Carman had the authority, but that her consent was not
freely obtained.
4
14
Carman and he ended up off of the deck and on the ground. (Def. Facts ¶
8). Plaintiffs claim defendant was sitting on top of Mr. Carman on the
ground and defendant contends he was standing next to Mr. Carman
telling him to get up. (Pls. Facts ¶ 54; Def. Br. in Supp. of Partial Summ. J.
at 2). The parties also somewhat dispute the nature and extent of Mr.
Carman’s injuries.
The parties’ accounts also differ as to what prompted Mrs. Carman’s
consent to search. Plaintiffs argue that defendant said he wanted to
search the house. (Pls. Facts ¶ 69). Defendant argues that after Mr.
Carman gained control of himself and everyone was on the back deck
talking, Mrs. Carman invited the troopers inside the house. (Def. Facts ¶¶
12-13). The officers did not threaten Mrs. Carman and Mr. Carman did not
object to Mrs. Carman granting the officers permission to search.
Defendant also indicates that Mrs. Carman stated during her deposition
that she did not remember if the officers asked her to search her house.
(Doc. 26, Ex. A. Karen Carman’s Tr. at 49). The parties also disagree on
whether the situation had “calmed down,” somehow creating a break in
time from the confusion in plaintiffs’ initial encounter with the officers to the
plaintiffs’ understanding of why the officers were at the residence.
As this court considers the totality of the circumstances to determine
whether consent was freely and voluntarily given, there still exists
questions of fact as to whether there was a coercive environment that
would have made Mrs. Carman’s consent involuntary. Therefore, we will
deny the parties’ motions for summary judgment.
B. Unreasonable Seizure and Force
Plaintiffs move for summary judgment on Count II of the complaint
15
alleging unreasonable seizure and unreasonable force with regard to Mr.
Carman. We find that these claims involve disputed fact and summary
judgment is not appropriate.
Under the Fourth Amendment, an individual is “seized” when an
officer restrains a person by either means of physical force or a show of
authority, thereby restraining their liberty. Terry v. Ohio, 392 U.S. 1, 19
n.16 (1968). “[A] person has been ‘seized’ within the meaning of the
Fourth Amendment only if, in view of all the circumstances surrounding the
incident, a reasonable person would have believed that he was not free to
leave.” California v. Hodari D., 499 U.S. 621, 627-28 (1991). “When a
police officer has a ‘reasonable, articulable suspicion that criminal activity
is afoot,’ he or she may conduct a ‘brief, investigatory stop.’” United States
v. Whitfield, 634 F.3d 741, 744 (3d Cir. 2010) (quoting Illinois v. Wardlow,
528 U.S. 119, 123 (2000)). “Reasonable suspicion” requires less than
probable cause, but must rise to a minimal level of objective justification for
the stop, considered under the totality of the circumstances. Id.
“The use of excessive force is itself an unlawful ‘seizure’ under the
Fourth Amendment.” Couden v. Duffy, 446 F.3d 483, 496 (3d Cir. 2006)
(citing Graham v. Connor, 490 U.S. 386, 395 (1989)). The use of
excessive force during a seizure should be analyzed under the Fourth
Amendment and its “reasonableness” standard. Graham, 490 U.S. at 395.
Such an inquiry “requires a careful balancing of ‘the nature and quality of
the intrusion on the individual’s Fourth Amendment interests’ against the
countervailing governmental interests at stake.” Id.
The Supreme Court enumerated a number of factors to use in
making an objective determination of whether the force was reasonable,
16
including severity of the crime, whether the suspect poses an immediate
threat to the safety of the officer or others and whether the suspect is
actively resisting arrest or attempting to evade arrest by flight. Id. at 396.
The Third Circuit has also articulated additional factors including, “the
duration of the action, whether the action takes place in the context of
effecting an arrest, the possibility that the suspect may be armed, and the
number of persons with whom the police officers must contend at one
time.” Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997).
In the present case, the parties disagree as to the facts regarding the
alleged seizure and force used by defendant on Mr. Carman. Plaintiffs
claim that when Mr. Carman exited his residence he did not pose an
immediate threat to the safety of the officers and was not fleeing or
resisting an arrest. Plaintiffs claim that Mr. Carman answered all of
defendant’s questions and explained that Michael Zita was not on the
property. Mr. Carman told the officers that they would need a search
warrant and turned to return to his home. Defendant grabbed Mr.
Carman’s arm and tackled him off of the deck. After Mr. Carman was able
to get up, defendant continued to ask him questions. Therefore, plaintiffs
argue that Mr. Carman was not free to leave and was thus illegally seized.
To the contrary, defendant claims that when the officers went up onto
the back deck to knock on the door, Mr. Carman exited the residence, was
belligerent and refused to identify himself. Mr. Carman then turned around
to go back to the house and he put his hands “down his front” and out of
view of the officers behind him. Defendant then grabbed Mr. Carman by
the shoulder and Mr. Carman whirled around, lost his balance and fell
down two steps off of the deck.
17
Because of the disputed facts, we will deny plaintiffs’ motion for
summary judgment as it relates to the unreasonable seizure and
unreasonable force.
Conclusion
For the reasons stated above, the plaintiffs’ motion for summary
judgment (Doc. 20) and defendant’s motion for partial summary judgment
(Doc. 24) will be denied. An appropriate order follows.
18
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ANDREW CARMAN and
KAREN CARMAN,
Plaintiffs
:
No. 3:10cv1013
:
:
(Judge Munley)
:
v.
:
:
JEREMY CARROLL,
:
Defendant
:
:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
AND NOW, to wit, this 29th day of March 2012, upon consideration of
the parties’ cross-motions for summary judgment (Docs. 20, 24), it is
hereby ORDERED that:
• Plaintiffs’ motion for summary judgment (Doc. 20) is DENIED; and
• Defendant’s motion for partial summary judgment (Doc. 24) is
DENIED.
BY THE COURT:
s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court
19
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?