KARASH v. MACHACHEK et al

Filing 102

MEMORANDUM OPINION that 92 MOTION for Summary Judgment filed by ZINRAM, MACHACHEK, PIERCE, STERNIAK, KLOSS, WEINDORFF, DIETZ, ANGELO, RODGERS will be granted in part and denied in part. An appropriate order to follow. Signed by Magistrate Judge Susan Paradise Baxter on 9/26/17. (lrw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
FREDERICK WILLIAM KARASH,
Plaintiff,
v.
TROOPER MACHACEK, et al.,
Defendants.

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Civil Action No. 15-28 Erie

Magistrate Judge Baxter

MEMORANDUM OPINION1
United States Magistrate Judge Susan Paradise Baxter

I.

INTRODUCTION
A.

Relevant Procedural History

On January 20, 2015, Plaintiff Frederick William Karash filed this pro se civil rights
action, pursuant to 42 U.S.C. § 1983, against the following Defendants who are all employed by
the Pennsylvania State Police Department: Trooper Machecek ("Machacek"); Trooper Kloss
("Kloss"); Trooper Zinram ("Zinram"); Trooper Sterniak ("Sterniak"); Corporal Dietz ("Dietz");
Trooper Rodgers ("Rodgers"); Trooper Angelo ("Angelo"); Trooper Weindorf ("Weindorf"); and
Trooper Pierce ("Pierce") (collectively referred to as "PSP Defendants"). Plaintiff subsequently
filed an amended complaint adding Erie County Coroner Lyell P. Cook ("Cook") and the
Commonwealth of Pennsylvania ("Commonwealth") as Defendants. The amended complaint
[ECF No. 25] is deemed to have superseded the original complaint and is the operative pleading
in this case.

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All parties have consented to having a United States Magistrate Judge exercise jurisdiction over this matter. [ECF
Nos. 4, 8, 55].

By Opinion and Order dated March 31, 2016, this Court dismissed Plaintiff's claims
against Defendants Commonwealth and Cook, as well as Plaintiff's state law and Pennsylvania
Constitution claims against the PSP Defendants [ECF No. 56]. Thus, the only claims left in this
case are various illegal search and seizure claims under the fourth amendment to the United
States Constitution against the PSP Defendants. In particular, Plaintiff raises the following
Fourth Amendment claims, as identified by Defendants: (1) an illegal entry claim against
Defendants Machacek, Sterniak, Kloss, Pierce, and Dietz; (2) an illegal seizure claim against
Defendants Machacek, Sterniak, Kloss, Pierce, and Dietz; (3) an illegal search warrant for lack
of probable cause claim against Defendant Kloss; and (4) an illegal execution of search warrant
claim against all Defendants except Defendant Sterniak.
On December 30, 2016, the PSP Defendants filed a motion for summary judgment [ECF
No. 92], contending that Plaintiff's claims are barred by the doctrine of qualified immunity
because "the alleged Fourth Amendment ‘rights’ being asserted by plaintiff were not clearly
established so that reasonable troopers would know their conduct was unlawful” and,
alternatively, “the record does not support a Fourth Amendment violation with respect to any of
the actions challenged by Plaintiff." (ECF No. 94, Defendants' Brief, at pp. 5-6). Plaintiff has
since filed a response brief, essentially reiterating the bases for his claims. [ECF No. 99]. This
matter is now ripe for consideration.
B.

Relevant Factual History2

On July 25, 2013, fireman Frank Fisher ("Fisher") was the first responder to a 911 call at

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The factual history recited herein is gleaned from the Defendants’ concise statement of undisputed material facts
[ECF No. 95], and Plaintiff’s responses thereto [ECF No. 101], to the extent the facts are undisputed and/or amply
supported by the factual record before this Court. Where there are discrepancies in the parties’ interpretations of the
documentary evidence of record, the Court draws from and cites the documents themselves.

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9:10 a.m. from Plaintiff’s brother, Matthew Karash (“Matthew”), requesting medical help at
Plaintiff’s residence (also Matthew’s residence). (ECF 95, Defendants' Concise Statement of
Undisputed Material Facts, at ¶ 1). Fisher understood the call to be related to a cardiac arrest, but
upon arrival to the scene and entering Plaintiff’s bedroom, he was told by Plaintiff, who was
performing CPR on Traci Fewell (“Ms. Fewell”) when Fisher arrived, that Plaintiff thought Ms.
Fewell had shot herself. (Id. at ¶¶ 1, 4, 5; ECF No. 100-2, transcript of June 27, 2014
Suppression Hearing, at p. 10). Fisher then left the residence and requested police assistance
because “we had a gunshot situation.” (ECF No. 100-2 at p. 10). Fisher then returned to the
bedroom and moved to a nearby dresser a firearm that had been on the bed next to Ms. Fewell
and Plaintiff. (Id. at p. 12). Other emergency responders then arrived on the scene. At
approximately 9:46 a.m., Ms. Fewell was pronounced dead by one of the EMT's at the scene. (Id.
at p. 13; ECF No. 5, at ¶ 14).
Defendant Machachek was the first law enforcement officer on the scene. (ECF No. 1002 at p. 13). He arrived at approximately 9:35 a.m. and was met by Fisher who was outside of the
residence. Fisher explained to Defendant Machacek that Ms. Fewell was dead and that he’d
moved the gun from the bed to the dresser. (Id.). Defendant Machacek then entered Plaintiff’s
residence and found a number of first responders inside the residence, in addition to Plaintiff.
(ECF No. 100-4, transcript of July 9, 2014 Suppression Hearing, at p. 17.
Once in the residence, Defendant Machacek went with Fisher to the bedroom where Ms.
Fewell was located, saw Ms. Fewell, unloaded the firearm that was on the dresser, took “a quick
glance to make sure no one else was in the residence and the firearm was out of reach of
everybody,” and removed everyone, including himself, from the home. (ECF No. 100-4, at p.
78). Defendant Machacek did not go toward the back of the residence where Matthew’s bedroom

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was located during this initial entrance into Plaintiff’s residence. (ECF No. 95, at ¶¶ 47-48; ECF
No. 93-3, transcript of Machacek deposition at pp.16 (internal p. 27)). From the time Defendant
Machacek first entered Plaintiff’s residence until he exited it, five to ten (5-10) minutes had
passed. (ECF No. 100-4 at p. 78). Additionally, at some point during this initial entrance,
Defendant Machacek learned, either from Plaintiff or from Fisher, that Plaintiff had found Ms.
Fewell shortly after 9:00 a.m., took the gun from her hand, set it to the side on the bed, and
began CPR on Ms. Fewell. (Id. at p. 77).
Defendant Sterniak arrived at the scene a few minutes after Defendant Machacek, at
approximately 9:40 a.m., in response to a call regarding a female with a gunshot wound. (ECF
No. 93-4, transcript of Sterniak deposition, at pp. 3-4 (internal pp. 4-7)). He went to help out if
anything was needed. (Id. at p. 3 (internal p. 4)). Defendant Sterniak entered the bedroom where
Ms. Fewell was located, got sick to his stomach, and left the residence; he was in Plaintiff’s
home for one to two (1-2) minutes before leaving it. (Id. at p. 4 (internal pp. 6-7)). After that
point, Defendant Sterniak stayed outside Plaintiff’s residence and was primarily responsible for
making sure no one went into the house “to maintain the scene.” (Id. at p. 5 (internal pp. 10-12).
Defendant Sterniak did not enter Plaintiff’s residence after the search warrant arrived; he left the
scene before the warrant arrived. (Id. at p. 6 (internal p. 14).
From the time Defendant Machacek initially removed everyone from Plaintiff’s
residence, no one went back into the residence until Defendant Kloss arrived on the scene, at
10:06 a.m. (ECF No. 93-1, Application for Search Warrant, at p. 4). Defendant Kloss was
dispatched to Plaintiff’s residence as part of a criminal investigation unit for investigation of a
death. (ECF No. 93-4, transcript of Defendant Kloss's deposition, at p. 22 (internal p. 4)). He met
Defendant Machacek on the porch, was briefed, entered the residence, and went through the

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kitchen and living room into the bedroom where Ms. Fewell’s body was located. (Id. at pp. 22-23
(internal pp. 5-6); ECF No. 93-2, Declaration of James Kloss, at ¶ 4). Trooper Kloss then walked
out of the bedroom, across the living room and peered into the two other bedrooms before
exiting the residence. (ECF No. 93-2, at ¶ 5). Defendant Kloss explained:
[m]y purpose in doing this was to get a general sense of the lay-out of the
house, but also for safety – to make sure no one else was in that residence
and everything was fine and safe. I knew Trooper Machacek was young
and inexperienced and the area was congested and confused, especially
with the number of EMT personnel I had seen. I believed a brief
protective sweep with more experienced eyes was necessary under the
circumstances.
Id. While Defendant Kloss was in Plaintiff’s bedroom, he saw, next to the gun and in plain view,
green vegetable matter which, based upon his experience as a police officer, he knew to be
marijuana. (ECF No. 93-4, at pp. 23-24 (internal pp. 9-10)). He also saw prescription pills not in
containers in the kitchen and a pipe/bong on a cupboard between the kitchen and living room.
(Id. at p. 24 (internal p.13). Defendant Kloss did not know if the pipe/bong was seized, but the
prescription pills were not seized because “through the search warrant they matched up with the
prescription bottles that we discovered.” (Id. at pp. 24-25 (internal pp. 13-15)).
When Defendant Kloss went into Plaintiff’s residence, Defendant Machacek went back
into the residence with Defendant Kloss “to show them what we had.” (ECF 93-3, at p. 13
(internal p. 17)). Additionally, at some point, Defendant Machacek retrieved the serial number
from the gun on the dresser and called it in to the station. (ECF No. 93-3, at p. 22 (internal p.
50)).
Defendant Dietz also entered Plaintiff’ residence that morning at approximately 10:08
a.m. (ECF 93-1, Crime Scene Entry Log, at p. 41). He was there in response to the call of a

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victim with a gunshot wound. (ECF 93-4, transcript of Dietz deposition, at p. 10 (internal p. 4)).
He entered Plaintiff’s residence because:
Trooper Machacek doesn't have that much time on. He didn't look in every
single area of the residence. We need to do a quick sweep for life-safety
reasons, you know, is there -- you know, we don't know anyone there. We
don't want to -- for safety, we don't want to get hurt.
We don't want to have someone else in there that's possibly hurt and still
alive that can be saved, and we also want to get a look at the body to see if
there's anything that, you know, we could obtain for -- that we would need
to further search for if there be any fruits of a crime, you know. Are any
windows broken? Did anyone break in?
(Id. at pp. 10-11 (internal pp. 5-6)). Defendant Dietz was right behind Defendant Kloss
when Kloss cleared Matthew’s bedroom. (Id. at 12 (internal p. 13)).
Defendant Pierce was the lead criminal investigator on the scene that day. (ECF 93-2, at
p. 31, ¶ 2. He was responding to the 911 call for assistance by Plaintiff’s brother. ECF 93-3 at
48, p. 4. Upon arriving at the scene at approximately 10:11 a.m., he entered Plaintiff’s residence
and went into Plaintiff’s bedroom with Trooper Machacek who briefed him. ECF 93-2,
Declaration of Sean Pierce, at p. 32, ¶ 3; ECF No 93-3, transcript of Pierce deposition, at p. 48
(internal p. 5)). It was Defendant Pierce’s understanding when he arrived that Ms. Fewell was
deceased. (ECF No. 93-3 at p. 49 (internal p. 8)). Defendant Pierce elaborated, “At that point, I
understood we had an individual in a bed, deceased as a result of a gunshot wound to the head,
possibly self-inflicted. I didn't know if it was suicide or homicide, and I certainly hadn't reached
any conclusion about needing a search warrant or what we were going to do. I wanted to take a
look at the body myself, and walked with Machacek into the house, to the master bedroom.”
(ECF No. 93-2, at p. 32, ¶ 3). Defendant Pierce determined, based on the totality of the
circumstances, that a search warrant was needed. (Id. at ¶¶ 3-5). In particular, Defendant Pierce
declares as follows:
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I recall Trooper Machacek back-briefing me on what he had found, and
also what Fred and Matthew Karash had told him - that Matthew Karash
was home all evening but heard nothing; Fred Karash was reported to have
been at work all evening and discovered her on the bed with a pillow over
her head; Fred Karash also told Trooper Machacek he had recently
discovered that Fewell had cheated on him with one of his friends; and the
.357 magnum which was alleged to have been used in the shooting was
owned by Fred Karash. When I coupled this with Fred Karash's demeanor
(I've responded to similar situations and his uncooperative attitude was not
typical of someone whose loved one just committed suicide), I made the
determination to get a search warrant and we all left the house.

(ECF 93-2 at 32-33, ¶ 5). At that point everyone, law enforcement and civilians alike, left
Plaintiff’s residence, and the residence was secured by 10:38 a.m. (Id.; ECF 93-1 at p. 44).
At Defendant Pierce’s instruction, Defendant Kloss left the scene to prepare a search
warrant application related to Ms. Fewell’s death and suspected illegal drug possession by
Plaintiff and Matthew. (ECF 93-2, Declaration of James Kloss, at p. 25, ¶ 6). Defendant Kloss
declares that, while he was at the PSP barracks, he would have seen the CLEAN
(“Commonwealth Law Enforcement Assistance Network”) query on the firearm found next to
Ms. Fewell. The query, which was conducted at 10:38 a.m. on July 25, 2013, indicated that the
firearm was registered to Cyril Nick Ley Jr. (Id. at pp. 27-28, ¶ 12; ECF No. 93-1, Declaration of
Lt. Mark J. Shaver, at p. 48, ¶¶ 3-4). Later that day, after the search warrant was issued,
Defendant Kloss was told that Plaintiff had purchased the weapon from Valley Gun Works.
(ECF No. 93-2 at p. 28, ¶ 12). On July 26, 2013, Defendant Kloss confirmed with Valley Gun
Works that the gun had been transferred to Plaintiff in May, 2013. (Id.).
Magisterial District Judge Scott Hammer signed the application for search warrant, as the
issuing authority, at 3:15 p.m. on July 25, 2013, and his seal was twice stamped on the
document, and he also signed as the issuing authority on both pages of the affidavit of probable
cause accompanying the application for search warrant. (ECF 93-1 at pp. 2-5). Defendant Kloss
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returned to Plaintiff’s residence with the search warrant at approximately 3:40 p.m. on July 23,
2015, handed Plaintiff a copy of the warrant, and read the warrant to Plaintiff on the deck of his
residence. (ECF 93-4, transcript of Kloss deposition, at p. 29 (internal pp. 31-32)).
During the time Defendant Kloss was obtaining the search warrant, Plaintiff was not
allowed back into his residence other than, perhaps, once in order to get clothes; otherwise, he
remained outside his residence. (ECF No. 93-3, transcript of Machacek deposition at p. 20
(internal pp. 43-44)). Plaintiff's mother, Rhonda Wilkinson (“Wilkinson”), arrived on the scene
at approximately 3:00 p.m. on July 25, 2013. (ECF No. 100-13, transcript of Wilkinson
deposition at p. 6 (internal p. 5)). Upon her arrival, Wilkinson observed officers/detectives going
in and out of Plaintiff’s house. (Id.). While at the scene, Wilkinson asked Plaintiff if the police
had given him any paperwork; Plaintiff responded no, and she did not see him with any
paperwork until very late in the afternoon. (Id. at p. 8 (internal p. 7)).
Defendant Rogers arrived at Plaintiff’s residence on July 25, 2013 in the late morning,
before lunch. (ECF No. 93-3, transcript of Defendant Rogers deposition, at p. 34 (internal p. 4)).
He stayed in his unmarked vehicle in front of the residence for a few hours. (Id.). Defendant
Rogers got out of his vehicle once he was told that there was a signed search warrant. (Id. at p.
35 (internal p. 7)). He did not read the search warrant. (Id. at p. 35 (internal p. 6)). Defendant
Rogers heard Defendant Kloss read the warrant to Plaintiff. (Id. at 35 (internal p. 14)). He then
entered Plaintiff’s residence and looked around. (Id. at 35 (internal p. 8)). Thereafter, Defendant
Rogers, along with Defendant Pierce, interviewed Plaintiff outside. (Id. at 38 (internal p. 19)).
Defendant Weindorf got a phone call to provide assistance at Plaintiff’s residence and
arrived on the scene at between noon and 1 p.m. on July 25, 2013. (ECF No. 93-3, transcript of
Weindorf deposition, at p. 60 (internal p. 4)). The residence was locked down at the point

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waiting for the search warrant. (Id.). Once the search warrant arrived, Defendant Weindorf
entered Plaintiff’s residence to assist in the search. (Id. at pp. 61-62 (internal pp. 9, 11-12)). He
did not read the warrant; Defendant Kloss had the search warrant in his hand and told Defendant
Weindorf what they were searching for. (Id. at pp. 61-62 (internal pp. 9-10)).
Defendant Kloss asked Plaintiff to open a gun safe that was located in the living room.
(ECF No. 93-4, transcript of Kloss deposition, at p. 33 (internal p. 48)). Plaintiff did not want to
open it, but eventually unlocked it. (Id. at p. 34 (internal p. 50)). The safe was not mentioned in
the search warrant, but Trooper Kloss asked Plaintiff to open the safe because he believed that he
had the right to investigate the safe based on the warrant. (Id. at p. 33 (internal p. 49)). Defendant
Kloss told Plaintiff “[w]e’ll take the safe, or I’ll have a gunsmith come in and open it or a
locksmith come in and open it.” (Id. at p. 34 (internal p. 50)). Defendant Kloss testified that he
had known drugs to be kept in safes; however, no drugs were found in the safe, but a .357 caliber
gun was seized. (Id.)
Defendant Weindorf was present when Plaintiff opened the gun safe in his living room,
but did not search the safe. (Id. at p. 62 (internal p. 12)). He also did not participate in creating
the inventory receipts or witnessing the inventory receipts. (Id.). The receipts were generated
outside of the residence. (Id. at p. 63 (internal p. 14)). Defendant Weindorf was in the residence
with Defendants Kloss and Machacek after the search warrant was issued, helping Troopers
Kloss and Machacek search for drugs and paraphernalia. (ECF No. 93-4, transcript of Kloss
deposition at p. 31 (internal p. 41)). Defendant Weindorf did not recall seeing any drugs or
paraphernalia in Plaintiff’s bedroom; his concentration was in searching around the bed “and
stuff like that.” (ECF No. 93-3, transcript of Weindorf deposition, at p. 63 (internal pp. 15-16)).

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Defendant Angelo arrived on the scene before lunchtime on July 25, 2013. (Id. at p. 66
(internal p. 4)). He entered Plaintiff’s residence after 4 p.m., when there was a warrant on the
scene. (Id. at p. 66 (internal p. 5)). He did not read the warrant prior to entering the residence.
(Id.). In Plaintiff’s residence, Defendant Angelo observed some contraband, possibly in the
kitchen or living room, and also observed “what appeared to be green vegetable matter which I
would find consistent with marijuana” in Plaintiff’s bedroom. (Id. at p. 67 (internal p. 8)). There
were other officers in Plaintiff’s residence prior to Defendant Angelo’s entry. (Id. at p. 67
(internal p. 9)).
Defendant Zinram was responsible for photographing the scene. (ECF No. 93-3,
Declaration of Scott Zinram, at p. 2, ¶ 3). Defendant Zinram had not worked in forensics for
years, and was off duty on July 25, 2013, when he received a call to see if he could assist at the
scene by photographing and processing the scene because the rest of the forensics team was
assigned elsewhere. (Id. at ¶¶ 2-3). He agreed and arrived at Plaintiff’s residence no earlier than
2:30 p.m. (Id. at ¶ 3). Defendant Zinram stated that he took photographs of the outside of the
residence while he waited for the warrant and he did not enter the house and take photographs
therein until after the warrant arrived. (Id. at p. 3, ¶ 4). Defendant Zinram also explained that the
camera he used to photograph the scene was still set for standard time (daylight savings time had
started in March 2013), such that the times on the disc of photographs that was downloaded from
the camera’s memory card, and the chart of photograph numbers, “is one hour off (one hour
early).” (Id. at p.3, ¶¶ 3-5, 7). Corporal Christine Lench, a corporal with the PSP assigned to the
Erie barracks as Supervisor of the Forensics Unit, explained that the unit’s cameras are not
connected to wi-fi, and thus, do not automatically update for daylight savings time; the time must

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be manually reset, and it is not unusual for officers to overlook this reset feature. (ECF No. 93-2,
Declaration of Corporal Christine Lench, at p. 20, ¶¶ 1-3).
Defendant Pierce confirmed that Defendant Zinram did not enter Plaintiff’s residence and
start taking photographs until the warrant was at the scene. (ECF No. 93-2, Declaration of Sean
Pierce, at p. 34, ¶ 9). The crime scene entry log lists Defendant Zinram on the scene at 3:40 p.m.
and the coroner on the scene from 4:05 p.m. to 5:19 p.m. (ECF No. 93-1 at 44). Defendant Pierce
entered Plaintiff’s residence shortly after Defendant Zinram entered, and assisted the coroner for
the next hour. (ECF No. 93-2 at p. 34, ¶ 9).
Defendant Walton arrived at Plaintiff’s residence between 12 p.m. and 1 p.m. to assist in
a death investigation. (ECF 93-4, transcript of Walton deposition, at p. 18 (internal p. 3)). Once
there, he conducted interviews with the neighbors until 4 p.m. or 5 p.m. (Id. at p. 18 (internal pp.
4-5). He did not go inside of Plaintiff’s residence. (Id. at p. 19 (internal p. 6)). As evidence was
brought out of Plaintiff’s residence related to the death, such as guns, ammunition, and spent
ammunition, he noted the evidence on the search warrant inventory. (Id.). He did not look at the
search warrant, nor did he actually see the items inside the house; he “just knew that was what
they were taking out of the house.” (Id. at p. 19 (internal pp. 8)).
Both inventories were created outside of Plaintiff’s residence, in the driveway. (ECF 933, transcript of Machacek deposition, at p. 26 (internal pp. 68-69)). Plaintiff was about twenty to
thirty (20-30) feet away when the inventories were being done. (Id. at p. 26, (internal p. 69)).
Defendants Walton and Kloss prepared the inventories. (ECF No. 93-4, transcript of Walton
deposition, at 19 (internal p. 6); ECF No. 93-4, transcript of Kloss deposition, at pp. 31-32
(internal pp. 41-42)).

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C.

Standards of Review
1.

Summary Judgment

Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be granted
if the “movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Under Rule 56, the district court must enter summary
judgment against a party “who fails to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment may be granted
when no “reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). “[A] party seeking summary judgment always bears the
initial responsibility of informing the district court of the basis for its motion, and identifying
those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue
of material fact.” Celotex, 477 U.S. at 323 (quoting Fed. R. Civ. P. 56).
The moving party has the initial burden of proving to the district court the absence of
evidence supporting the non-moving party's claims. Id. at 330; see also Andreoli v. Gates, 482
F.3d 641, 647 (3d Cir. 2007); UPMC Health System v. Metro. Life Ins. Co., 391 F.3d 497, 502
(3d Cir. 2004). When a non-moving party would have the burden of proof at trial, the moving
party has no burden to negate the opponent's claim. Celotex, 477 U.S. at 323. The moving party
need not produce any evidence showing the absence of a genuine issue of material fact. Id. at
325. “Instead, ... the burden on the moving party may be discharged by ‘showing’—that is,
pointing out to the district court—that there is an absence of evidence to support the nonmoving
party's case.” Id. After the moving party has satisfied this low burden, the nonmoving party

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must provide facts showing that there is a genuine issue for trial to avoid summary judgment. Id.
at 324. “Rule 56(e) permits a proper summary judgment motion to be opposed by any of the
kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.” Id.;
see also Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001); Garcia v. Kimmell, 381
F.App’x. 211, 213 (3d Cir. 2010) (quoting Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d
Cir. 2005)) (the non-moving party “must present more than just bare assertions, conclusory
allegations or suspicions to show the existence of a genuine issue.”) (internal citation omitted).
In considering these evidentiary materials, “courts are required to view the facts and draw
reasonable inferences in the light most favorable to the party opposing the summary judgment
motion.” Scott v. Harris, 550 U.S. 372, 378 (2007) (internal quotation marks and alterations
omitted); see also Doe v. Cty. of Centre, Pa., 242 F.3d 437, 446 (3d Cir. 2001) (when applying
this standard, the court must examine the factual record and make reasonable inferences
therefrom in the light most favorable to the party opposing summary judgment).
When considering a motion for summary judgment, the court is not permitted to weigh
the evidence or to make credibility determinations, but is limited to deciding whether there are
any disputed issues and, if there are, whether they are both genuine and material. Anderson, 477
U.S. at 248, 255 (“only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment. Factual disputes that are
irrelevant or unnecessary will not be counted.”). In determining whether the dispute is genuine,
the court's function is not to weigh the evidence or to determine the truth of the matter, but only
to determine whether the evidence of record is such that a reasonable jury could return a verdict
for the nonmoving party. Id. at 249. The court may consider any evidence that would be

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admissible at trial in deciding the merits of a motion for summary judgment. Horta v. Sullivan, 4
F.3d 2, 8 (1st Cir. 1993).
2.

Pro Se Pleadings

Plaintiff is proceeding pro se. Pro se pleadings, “however inartfully pleaded,” must be
held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner,
404 U.S. 519, 520–21 (1972). If the court can reasonably read pleadings to state a valid claim on
which the litigant could prevail, it should do so despite failure to cite proper legal authority,
confusion of legal theories, poor syntax and sentence construction, or litigant's unfamiliarity with
pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); U.S. ex rel. Montgomery v.
Brierley, 414 F.2d 552, 555 (3d Cir. 1969) (petition prepared by a prisoner may be inartfully
drawn and should be read “with measure of tolerance”). Under our liberal pleading rules, a
district court should construe all allegations in a complaint in favor of the complainant. Gibbs v.
Roman, 116 F.3d 83 (3d Cir. 1997), overruled on other grounds by Abdul-Akbar v. McKelvie,
239 F.3d 307, 311 (3d Cir. 2001). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)
(discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land Co., 906 F.2d 100,
103 (3d Cir. 1990) (same).
When considering a motion for summary judgment, however, the traditional flexibility
toward pro se pleadings does not require the Court to indulge evidentiary deficiencies. See Mala
v. Crown Bay Marina, Inc., 704 F.3d 239, 249 (3d Cir. 2013) (citing Brooks v. Kyler, 204 F.3d
102, 108 n. 7 (3d Cir. 2000)) (indicating that pro se litigants still must present at least affidavits
to avoid summary judgment). Accordingly, because Plaintiff is a pro se litigant, this Court will
consider the facts and make inferences where it is appropriate.

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D.

Discussion

Defendants argue that the record does not support a Fourth Amendment violation as to
any of their alleged actions and, thus, summary judgment must be entered in their favor. The
Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation.” U.S. Const. amend. IV.
Alternatively, Defendants argue that Plaintiff's claims are barred by the doctrine of
qualified immunity because the alleged "rights" being asserted by Plaintiff were not clearly
established so that reasonable troopers would know that their conduct was unlawful.
As explained in Paoli v. Stetser, 651 Fed. Appx. 123 (3d Cir. June 8, 2016):
Qualified immunity bars claims against government officials “as long as those
officials' actions ‘d[id] not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’ ” Thus, a court ruling on
qualified immunity must decide two issues: (1) whether the facts alleged, taken in
a light most favorable to the plaintiff, show a violation of a constitutional right,
and (2) whether such right was clearly established in light of the specific factual
context. The court may decide the question of whether there was a “clearly
established right” without first determining if a violation of a constitutional right
occurred.
Paoli, 651 Fed. Appx. at 125 (footnotes omitted). Qualified immunity exists to give
“government officials breathing room to make reasonable but mistaken judgments, and protects
all but the plainly incompetent or those who knowingly violate the law.” Id. at 126 (footnote
omitted). Qualified immunity is an affirmative defense for which the government official bears
the burden of proof.” Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982). A movant seeking
summary judgment on an affirmative defense “bear[s] the burden of proof at trial and therefore
must show that it has produced enough evidence to support the findings of fact necessary to
win.” El v. SEPTA, 479 F.3d 232, 237 (3d Cir. 2007) (footnote omitted).

15

1.

Plaintiff’s Fourth Amendment claim based upon Defendants’
multiple entries into Plaintiff’s residence on July 25, 2013

Defendants first argue that, to the extent Plaintiff’s Fourth Amendment claim is based
upon the individual Defendants’ entries into Plaintiff’s residence on July 25, 2013: “This record
does not establish a violation of Plaintiff’s Constitutional rights,” and “[a]t a minimum Plaintiff’s
claimed ‘right’ in this case – ie., not to have troopers enter his home to observe the victim and
sweep the residence in response to a reported gun shot death – was not so clearly established
that reasonable officers would have known their conduct to be unlawful.” (ECF No. 94 at p. 15).
The Court shall first examine whether Plaintiff has asserted a right under the Fourth
Amendment that was clearly established. As explained by the Paoli court, supra.:
whether a right has been “clearly established” depends on “the specific
context of the case,” and the right at issue may not be simply “a broad
general proposition.” For a right to be “clearly established,” the contours
of the right must be sufficiently clear that a reasonable official would
know that his conduct violates that right. Thus, [Plaintiff] must
demonstrate that a specific Fourth Amendment right—not merely a
general right against unreasonable searches and seizures—was clearly
established at the time of the alleged violation, based on the specific
context of [his] case.
Paoli, 651 F. App'x at 125 (footnotes omitted).
In Mincey v. Arizona, 437 U.S. 385 (1978), the Supreme Court explained that warrants
are generally required to search a person's home or his person unless "‘the exigencies of the
situation’ make the needs of law enforcement so compelling that the warrantless search is
objectively reasonable under the Fourth Amendment.” Mincey, 437 U.S. at 393-94, citing
McDonald v. U.S., 335 U.S. 451, 456 (1948); Johnson v. U.S., 333 U.S. 10, 14–15 (1948). See
also Groh v. Ramirez, 540 U.S. 551, 552 (2004) (“absent consent or exigency, a warrantless
search of a home is presumptively unconstitutional.”). In particular:

16

… [T]he Fourth Amendment does not bar police officers from making warrantless
entries and searches when they reasonably believe that a person within is in need
of immediate aid. Similarly, when the police come upon the scene of a homicide
they may make a prompt warrantless search of the area to see if there are other
victims or if a killer is still on the premises. 'The need to protect or preserve life or
avoid serious injury is justification for what would be otherwise illegal absent an
exigency or emergency.' And the police may seize any evidence that is in plain
view during the course of their legitimate emergency activities....
Mincey, 437 U.S. at 392-393 (citations omitted).
The Third Circuit Court adds that:
It is 'a cardinal principle that searches conducted outside the judicial
process, without prior approval by judge or magistrate, are per se
unreasonable under the Fourth Amendment—subject only to a few
specifically established and well-delineated exceptions.' United States v.
Harrison, 689 F.3d 301, 306 (3d Cir. 2012)(quoting California v.
Acevedo, 500 U.S. 565, 580, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991)).
Nowhere is this more true than in the home, the threshold of which may
only be crossed without a warrant or consent when exigent circumstances
exist. See Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 63
L.Ed.2d 639 (1980); id. at 585, 100 S.Ct. 1371 (“[T]he physical entry of
the home is the chief evil against which the wording of the Fourth
Amendment is directed.” (internal citation and quotation marks omitted));
see also Kirk v. Louisiana, 536 U.S. 635, 638, 122 S.Ct. 2458, 153
L.Ed.2d 599 (2002) (“As Payton makes plain, police officers need either a
warrant or probable cause plus exigent circumstances in order to make a
lawful entry into a home.”).
*

*

*

The common thread is imminence – 'the existence of a true emergency.'
United States v. Simmons, 661 F.3d 151, 157 (2d Cir. 2011). “[O]nce the
exigencies of the initial entry have dissipated, the police must obtain a
warrant for a[ny further search of the premises.” United States v. Murphy,
516 F.3d 1117, 1121 (9th Cir. 2008) (citing Mincey v. Arizona, 437 U.S.
385, 392–93, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978)), abrogated on other
grounds by Fernandez v. California, ––– U.S. ––––, 134 S.Ct. 1126, 188
L.Ed.2d 25 (2014).
U.S. v. Mallory, 765 F.3d 373, 382-84 (3d Cir. 2014).
Further:

17

'Examples of exigent circumstances include, but are not limited to, hot
pursuit of a suspected felon, the possibility that evidence may be removed
or destroyed, and danger to the lives of officers or others.' Coles, 437 F.3d
at 366 (citing United States v. Richard, 994 F.2d 244, 248 (5th Cir.1993));
see also Couden, 446 F.3d at 496 (“Exigent circumstances exist where
‘officers reasonably ... believe that someone is in imminent danger.’ ”)
(quoting Parkhurst v. Trapp, 77 F.3d 707, 711 (3d Cir.1996) (emphasis
omitted)). To be reasonable, a warrantless search premised on exigent
circumstances must also be supported by probable cause. Coles, 437 F.3d
at 365. In determining whether there were exigent circumstances, a court
reviews the totality of the circumstances, including “the facts and
reasonably discoverable information available to the officers at the time
they took their actions.” Estate of Smith v. Marasco, 318 F.3d 497, 518
(3d Cir. 2003) (citing United States v. Sculco, 82 F.Supp.2d 410, 417
(E.D.Pa.2000)); see also Rubin, 474 F.2d at 268.
U.S. v. Parris, 229 F. App'x 130, 133-34 (3d Cir. 2007). “The Government bears the burden of
demonstrating that exigent circumstances justified a warrantless search, and that burden is
‘heavy’.” Mallory, 765 F.3d at 383–84, quoting Welsh v. Wisconsin, 466 U.S. 740, 749–50
(1984)).
Here, the record reveals that Defendant Machacek entered Plaintiff’s residence without a
warrant after he responded to a 911 call from Fisher requesting police because “we had a gunshot
situation,” arrived on the scene to be told by Fischer that Ms. Fewell was dead, there was a gun
in the bedroom that presumably was loaded, and Plaintiff and numerous emergency personnel
were in the house. Thereafter, Defendant Machacek went directly to Plaintiff’s bedroom where
Ms. Fewell was located, viewed the scene therein, secured the weapon located in the bedroom,
took “a quick glance to make sure no one else was in the residence and the firearm was out of
reach of everybody,” and removed everyone, including himself from the residence. The Court
concludes that this scenario equates to exigent circumstances such that Defendant Machacek did
not violate Plaintiff’s rights under the Fourth Amendment by his warrantless entrance into, and
subsequent search of, Plaintiff’s residence upon his arrival at the scene. As the Supreme Court

18

noted in Mincey, supra., “[w]e do not question the right of the police to respond to emergency
situations.” Mincey, 437 U.S. at 392. Accordingly, this initial warrantless entrance by Defendant
Machacek into Plaintiff’s residence did not violate Plaintiff’s rights under the Fourth
Amendment, and Defendant Machacek is entitled to summary judgment to the extent that
Plaintiff claims that he violated Plaintiff’s Fourth Amendment rights when he first entered
Plaintiff’s residence on July 25, 2013.
Similarly, the Court finds that Defendant Sterniak was acting under exigent
circumstances when he entered Plaintiff’s home without a warrant in order to assist Defendant
Machacek in whatever way he could. Therefore, Defendant Sterniak’s warrantless entrance into
Plaintiff’s residence did not violate Plaintiff’s rights under the Fourth Amendment and said
Defendant is entitled to summary judgment to the extent that Plaintiff claims he violated
Plaintiff’s Fourth Amendment rights when he entered Plaintiff’s residence on July 25, 2013.
However, a reasonable jury could conclude that once Defendant Machacek “cleared” the
residence and removed everyone from Plaintiff’s residence, including himself, the exigent
circumstances that permitted a warrantless entry into Plaintiff’s residence had dissipated such
that subsequent entry into Plaintiff’s residence by Defendants Kloss and Dietz, and Defendant
Machacek's subsequent reentry with one or more of them, was a general exploratory search, and
not a limited “victim-or-suspect” search. Thus, at the very least, there is a genuine issue of
material fact as to whether these Defendants violated Plaintiff’s Fourth Amendment rights when
they entered his residence on July 25, 2013 after Defendant Machacek had initially “cleared” the
residence. See Bodine v. Warwick, 72 F.3d 393, 399 (3d Cir. 1995) (issue of whether exigent
circumstances existed should go to jury when there are disputed factual issues). Moreover, the
presence of genuine issues of material fact preclude a determination that these Defendants are

19

entitled to qualified immunity as to this Fourth Amendment claim by Plaintiff, i.e., a reasonable
officer would arguably have been on notice that entering Plaintiff’s residence under these
circumstances, absent a warrant, was a violation of Plaintiff’s rights under the Fourth
Amendment. Accordingly, Defendants’ motion for summary judgment is denied to the extent it
seeks summary judgment on Plaintiff’s claim that Defendants Kloss, Dietz, and Machacek
violated Plaintiff’s rights under the Fourth Amendment when they entered Plaintiff’s residence
after Defendant Machacek had already “cleared” the residence.
Furthermore, as to Defendants Pierce and Zinram, the Court finds that there is a genuine
issue of material fact as to whether Defendants Pierce and Zinram violated Plaintiff’s Fourth
Amendment rights by entering Plaintiff’s residence in the afternoon of July 25, 2013, prior to
Defendant Kloss returning to Plaintiff’s residence with a search warrant. In particular, the Court
cites the following evidence of record that conflicts with Defendants' general assertion that the
photographs taken with Defendant Zinram's camera displayed the wrong time because it was not
adjusted for daylight savings time: (1) Wilkinson’s testimony that when she arrived at Plaintiff’s
house around 3:00 p.m., she saw police officers going in and out of Plaintiff’s residence, prior to
the issuance of the search warrant; (2) photographs 8516 and 8531, time stamped as taken by
Defendant Zinram at 2:40 p.m. and 2:52 p.m., which times were consistent with the time
indicated on Plaintiff's kitchen clock (approximately 2:45 P.M.) depicted in the photos; and (3)
photographs 8644-8646, time stamped as being taken by Trooper Zinram at 3:28 p.m., and
showing Trooper Pierce inside Plaintiff’s residence prior to Defendant Kloss's arrival with the
search warrant. The Court further finds that a reasonable officer would have been on notice that
entering and searching Plaintiff’s residence under these circumstances was a violation of
Plaintiff’s rights under the Fourth Amendment and, therefore, Defendants Pierce and Zinram

20

would not be entitled to qualified immunity. Accordingly, Defendants’ motion for summary
judgment is denied to the extent it seeks summary judgment on Plaintiff’s claim that Defendants
Pierce and Zinram violated Plaintiff’s rights under the Fourth Amendment by entering Plaintiff’s
residence in the afternoon of July 25, 2013, prior to Defendant Kloss's return to Plaintiff’s
residence with a search warrant.
2.

Plaintiff’s Fourth Amendment claim based upon Defendants’ seizure
of Plaintiff’s residence while they awaited a search warrant.

Next, Plaintiff claims that Defendants Machacek, Sterniak, Kloss, Pierce, and Dietz
violated his Fourth Amendment rights when they seized his residence while they awaited
Defendant Kloss’s return with the search warrant. In response, Defendants contend that they are
entitled to summary judgment on this claim because their conduct in connection with the
“seizure” or securing of Plaintiff’s home while Defendant Kloss obtained the search warrant did
not violate Plaintiff’s Fourth Amendment rights and, alternatively, Plaintiff's right to be free
from such a seizure was not clearly established and known to reasonable officers at the time of
their conduct and, therefore, they are entitled to qualified immunity.
In Segura v. U.S., 468 U.S. 796 (1984), the Supreme Court held “that securing a
dwelling, on the basis of probable cause, to prevent the destruction or removal of evidence while
a search warrant is being sought is not itself an unreasonable seizure of either the dwelling or its
contents.” Segura, 468 U.S. at 810. Thus, under circumstances where the temporary securing of
premises is “undertaken to preserve the status quo while a search warrant is being sought,” that
conduct will not violate the Fourth Amendment. Id. at 809.
Here, the Court finds that, in light of Ms. Fewell’s body being found in Plaintiff’s
bedroom and Plaintiff’s statements that he had found the gun in Ms. Fewell’s hand and moved it,
the gun was his gun, and Ms. Fewell had told him the night before that she had been unfaithful to
21

him with his friend, the Defendants had probable cause to believe that a homicide happened in
Plaintiff’s residence and, therefore, to temporarily secure Plaintiff’s residence, including keeping
Plaintiff out of the residence. Defendants’ motion for summary judgment on Plaintiff’s claim that
they violated his rights under the Fourth Amendment when they seized his residence while they
awaited Defendant Kloss’s return with the search warrant will be granted.
3.

Plaintiff’s Fourth Amendment claim that the search warrant
was not supported by probable cause

Plaintiff claims that Defendant Kloss violated his Fourth Amendment rights by obtaining
a search warrant based upon a false affidavit of probable cause. The Defendants contend that
summary judgment should be granted with respect to this claim, arguing that the District Justice
had a sufficient basis to find probable cause for a search warrant and that “Plaintiff cannot
identify any false statements or omissions in Kloss’s Affidavit, let alone any that were material
to the finding of probable cause.” (ECF No. 94 at pp. 17, 20-21).
In response, Plaintiff argues “the Warrant Application was completed with such reckless
disregard for the truth, as to be lacking any indicia of probable cause.” (ECF No. 99 at p. 8). In
particular, Plaintiff contends that, while “Kloss cites that pipes and bongs were in plain view
throughout the residence[,] [n]o bongs in plain view were seized and no pipes in plain view were
seized, except that pipes were seized from the bedroom of my co-tenant… Kloss even later
admits to Judge Garhartt at the Suppression hearing that no bongs were seen in plain view.” (Id.,
citing ECF No. 100-3 at p. 49). Plaintiff contends further that “Kloss cites that prescription pills
are seen in the residence (on the counter) not in their containers, yet photographic evidence
refutes this.” (Id. at pp.8-9). Plaintiff also argues that Defendant Kloss stated in the Affidavit of
Probable Cause that the firearm did not belong to Plaintiff, thereby asserting that the firearm was
illegally possessed and/or was evidence of Plaintiff’s dishonesty, without first contacting the
22

person alleged to be the rightful owner of said firearm (Cyril Nick Ley Jr) or requesting from
Plaintiff a sales/registration form for the gun. (Id. at pp. 9-10). Plaintiff continues: “Kloss alleged
to see several items in plain view. The problem is that in every case of what he alleged to be in
plain view (in my room and in the common area), [h]e either failed to seize the alleged evidence,
or photographic evidence refutes his narrative.” (Id. at p. 10). Plaintiff also faults Defendant
Kloss for failing to establish that Matthew Karash has normal hearing, and not including in the
Affidavit of Probable Cause that Matthew was sleeping throughout the night. (Id. at p. 11).
The Third Circuit has explained that “[a] section 1983 plaintiff who challenges the
validity of a search warrant by asserting that law enforcement agents submitted a false affidavit
to the issuing judicial officer must satisfy the two-part test developed by the Supreme Court in
Franks v. Delaware, 438 U.S. 154, 155–56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).” Sherwood v.
Mulvihill, 113 F.3d 396, 399 (3d Cir.1997). Under the Franks test, as explained in Mulvihill,
“the plaintiff must prove, by a preponderance of the evidence, (1) that the affiant knowingly and
deliberately, or with a reckless disregard for the truth, made false statements or omissions that
create a falsehood in applying for a warrant; and (2) that such statements or omissions are
material, or necessary, to the finding of probable cause.” Id.
The first step of the test requires the Court to determine whether the original Affidavit
contains recklessly false statements or omissions. The Third Circuit explained the standards for
false assertions or omissions:
Assertions are made with reckless disregard when, “viewing all the evidence, the
affiant must have entertained serious doubts as to the truth of his statements or
had obvious reasons to doubt the accuracy of the information he reported.”
[Wilson, 212 F.3d] at 788 (internal quotations omitted). Assertions can be made
with reckless disregard for the truth “even if they involve minor details—
recklessness is measured not by the relevance of the information, but the
23

demonstration of willingness to affirmatively distort truth.” Id. “[O]missions are
made with reckless disregard for the truth when an officer recklessly omits facts
that any reasonable person would know that a judge would want to know” in
making a probable cause determination. Id. at 783.
Reedy v. Evanson, 615 F.3d 197, 213 (3d Cir.2010). The Third Circuit has acknowledged that
because “[a]ll storytelling involves an element of selectivity, [w]e cannot demand that police
officers relate the entire history of events leading up to a warrant application with every
potentially evocative detail....” Wilson v. Russo, 212 F.3d 781, 787–88 (3d Cir.2000). “Rather, a
court employs the ‘common sense approach’ of only looking to the omissions that are ‘highly
relevant.’” McGriff v. Marks, 2013 WL 1830948, at *10 (W.D.Pa. Apr. 30, 2013), quoting
Wilson, 212 F.3d at 788. In making this determination, the court should view the facts not “from
the deliberately slanted perspective that summary judgment demands” but rather “with
scrupulous neutrality.” Reedy, 615 F.3d at 232 n. 24 (3d Cir.2010).
Even if the Court determines that a probable cause affidavit was prepared with reckless
disregard for the truth, the Plaintiff's claim will still fail if the Court finds that the inaccuracies or
omissions were not "material, or necessary, to the probable cause determination." Wilson, 212
F.3d at 789. In making the materiality determination, a court must perform “reconstructive
surgery” on the original affidavit by first “excis[ing] offending inaccuracies and insert[ing] the
facts recklessly omitted, and then determin[ing] whether or not the ‘corrected’ warrant affidavit
would establish probable cause.” Id. At this stage, the Court “engage[s] in the routine probable
cause analysis, weighing the inculpatory evidence against any exculpatory evidence available to
the officer.” Id. at 791. In conducting this weighing, the Court must return to the ordinary
summary judgment standard, and consider the Corrected Affidavit as “simply ... one more set of

24

factual assertions that must then be viewed in the light most favorable to the non-movant.”
Reedy, 615 F.3d at 214 n. 24.
Here, the facts of record do not support many of Plaintiff’s contentions relative to his
claim that Defendant Kloss obtained a search warrant based upon a false affidavit of probable
cause. First, contrary to Plaintiff’s argument, several of the photographs taken inside Plaintiff’s
residence show what appear to be drugs and drug paraphernalia in Plaintiff’s residence, in areas
of the residence seen by Defendant Kloss in the morning of July 25, 2013. Specifically,
photographs 8583 and 8584 appear to show marijuana, and photographs 8542, 8551, and 8552
appear to show a pipe. (ECF No. 93-4 at pp. 47-49, 54-55). Also, Defendant Angelo testified that
he saw what appeared to him to be marijuana in Plaintiff’s bedroom. (ECF No. 93-3, transcript
of Angelo deposition, at p. 67 (internal p. 8)).
More importantly, the Court finds that, even if the Affidavit of Probable Cause was
purged of all of the “falsities” argued for by Plaintiff, and all of the alleged omissions cited by
Plaintiff were added to the affidavit (i.e. Plaintiff was the owner of the firearm used to shoot Ms.
Fewell and Matthew Karash, who had normal hearing, had slept the entire night of the shooting),
the Affidavit of Probable Cause still would have stated that Ms. Fewell was Plaintiff’s girlfriend;
her body was found by Plaintiff in Plaintiff’s bedroom, dead from a gunshot wound; Plaintiff
stated that the gun had been in Ms. Fewell’s hand when he found her, and that he had moved the
gun; the gun was registered to him; and the shooting occurred shortly after Plaintiff had
discovered and told Ms. Fewell that he knew about Ms. Fewell engaging in sexual relations with
Plaintiff’s friend. As such, the Affidavit of Probable Cause would have been more than sufficient
for the magisterial district judge to find probable cause to search Plaintiff’s residence for “[a]ny
property and/or evidence, physical, electronic or otherwise, pertaining to the suspicious

25

death/criminal homicide of the victim, Traci Lynn FEWELL; [redacted]; LKA:8013 Station
Road, Erie , PA 16510 that occurred on 07/25/13.” Accordingly, the Court finds that Plaintiff has
not and cannot show that an intentionally or recklessly false statement or omission made by
Defendant Kloss was determinative of probable cause, and therefore, summary judgment will be
granted in favor of Defendant Kloss as to Plaintiff’s claim that he violated Plaintiff’s Fourth
Amendment rights by preparing an Affidavit of Probable Cause "lacking any indicia of probable
cause."
4.

Plaintiff’s Fourth Amendment claim against Defendants (other than
Trooper Sterniak) based upon the manner in which the search
warrant was executed

Defendants contend that summary judgment should be granted as to Plaintiff’s claim that
all Defendants, other than Defendant Sterniak, violated his Fourth Amendment rights when “he
was not shown or provided the Warrant before the search, officers did not read the warrant
themselves, and inventories were not properly done.” In particular, Defendants contend that
“even if Plaintiff’s version of events is accepted as true:” (1) the Fourth Amendment does not
require that the officer executing a search warrant present the owner of the premises with a copy
of the warrant prior to conducting the search; (2) any failure to provide Plaintiff with the
inventories from the search does not result in a Fourth Amendment violation but rather, at worst,
implicates “ministerial procedures or non-compliance with the rules of criminal procedure;” and
(3) Defendants are not even aware of a “rule” that requires officers executing a search warrant to
independently read and verify a warrant. (ECF No. 94, Defendants' Brief, at pp. 31-32 (citations
omitted)).
In response, Plaintiff contends that: (1) none of the officers or persons who entered his
house (other than Defendant Kloss) "testified to having read the warrant prior to [the] search and

26

none of them testified to having ensured the warrant was signed by a neutral magistrate" (ECF
No. 99, Plaintiff's Opposition Brief, at p. 22 (citing Groh v. Ramirez, 540 U.S. 551 2004)); and
(2) Defendant Kloss’s execution of the search warrant violated Plaintiff's Constitutional rights
because he allegedly failed to "knock and announce" and hand a copy of the Warrant to Plaintiff,
and he failed to prepare inventories in Plaintiff's presence, without reasonable explanation (Id. at
p. 27).
Turning first to Plaintiff’s contention that he was not given the search warrant until very
late in the afternoon of July 25, 2013, when the search was completed, even assuming that this
version of the facts is supported by the evidence of record, the Court finds that this timing does
not violate Plaintiff’s rights under the Fourth Amendment. In U.S. v. Wright, 777 F.3d 635 (3d
Cir. 2015), the appellate court explained:
The Supreme Court has observed that “neither the Fourth Amendment nor
Federal Rule of Criminal Procedure 413” requires “the executing officer
[to] present the property owner with a copy of the warrant before
conducting his search.” United States v. Grubbs, 547 U.S. 90, 98–99, 126
S.Ct. 1494, 164 L.Ed.2d 195 (2006). The Fourth Amendment “protects
property owners not by giving them license to engage the police in a
debate over the basis for the warrant, but by interposing, [before the
search], the ‘deliberate, impartial judgment of a judicial officer ... between
the citizen and the police,’ and by providing, [after the search], a right to
suppress evidence improperly obtained and a cause of action for
damages.” Id. at 99, 126 S.Ct. 1494 (second alteration in original) (quoting
Wong Sun v. United States, 371 U.S. 471, 481–482, 83 S.Ct. 407, 9
L.Ed.2d 441 (1963)).
Wright, 777 F.3d at 641. Therefore, to the extent Plaintiff’s Fourth Amendment claim against the
Defendants is premised upon their failure to serve Plaintiff the search warrant prior to their
searching his residence, Defendants’ motion for summary judgment is granted.

3

Fed.R.Crim.P. 41(f)(1)(c) provides in relevant part, “[t]he officer executing the warrant must give a copy of the
warrant and a receipt for the property taken to the person from whom, or from whose premises, the property was
taken or leave a copy of the warrant and receipt at the place where the officer took the property.”

27

Second to the extent that the defendants did not “knock and announce” prior to entering
Plaintiff’s home, such conduct did not violate Plaintiff’s rights under the Fourth Amendment
because it is not necessary to “knock and announce” “if knocking and announcing would be
‘futile’,” and “knocking and announcing” would have been futile here where it was known by the
Defendants that Plaintiff’s residence was unoccupied and Plaintiff was waiting outside of the
residence with the police for Trooper Kloss to return with the search warrant. Hudson v.
Michigan, 547 U.S. 586, 589-90 (2006), quoting Richards v. Wisconsin, 520 U.S. 385, 394
(1997). See also U.S. v. May, 2010 WL 2985899, at *3 (S.D. Ala. July 27, 2010) (concluding
that where defendant was already in custody when officers arrived at his home to execute the
search warrant, the residence's other occupants (a woman and two children) were standing
outside when the search warrant team arrived, and the woman had advised officers that no one
else was in the house, “[u]nder those circumstances . . . for the officers to ‘knock and announce’
before going inside an unoccupied house would have been a hollow, futile, and utterly pointless
exercise.”).
Third, Plaintiff contends that Defendants violated his rights under the Fourth Amendment
when they did not complete the inventories in Plaintiff’s presence, as allegedly required under
state and federal rules of criminal procedure. Presumably the applicable rules upon which
Plaintiff relies are Fed.R.Crim.P. 41, and its state counterpart, Pa.R.Crim.P. 209; however, it is
beyond dispute that the execution of the search warrant at issue was solely a state undertaking,
without any participation by federal officers or agents. Thus, the only procedural rule that would
have any relevancy to this case is Pa.R.Crim.P. 209. The version of Pa.R.Crim.P. 209 in effect
on July 25, 2013, provided:
An inventory of items seized shall be made by the law enforcement officer
serving a search warrant. The inventory shall be made in the presence of
28

the person from whose possession or premises the property was taken,
when feasible, or otherwise in the presence of at least one witness. The
officer shall sign a statement on the inventory that it is a true and correct
listing of all items seized, and that the signer is subject to the penalties and
provisions of 18 Pa.C.S. §4904(b)--Unsworn Falsification to Authorities.
The inventory shall be returned to and filed with the issuing authority.
Pa.R.Crim.P. 209 (A).
Here, although it was feasible to do so, the inventories were not prepared in Plaintiff’s
presence and, thus, were prepared in violation of Pa.R.Crim.P. 209. Nevertheless, "'[f]ederal
cases interpreting a comparable rule of criminal procedure, see Rule 41(d) of the Federal Rules
of Criminal Procedure, have concluded that although important, the procedures required for
execution and return of the warrant are ministerial and that irregularities should not void an
otherwise valid search absent a showing of prejudice …'" United States v. Primo, 369 F.Supp.2d
607, 635 (W.D.Pa. Mar. 23, 2005), quoting Commonwealth v. Mason, 507 Pa. 396, 404, 490
A.2d 421 (citations omitted). There is no evidence that this procedural defect caused any
prejudice to Plaintiff or that the Defendants acted in bad faith by failing to have Plaintiff present
during the inventory. Therefore, Plaintiff’s rights under the Fourth Amendment were not violated
by the Defendants’ failure to complete the inventories in Plaintiff’s presence as required under
Pa.R.Crim.P. 209, and Defendants’ motion for summary judgment on this Fourth Amendment
claim will be granted.
Fourth, with respect to Plaintiff’s claim that all of the Defendants, except Defendant
Kloss, violated his Fourth Amendment rights by searching his residence without reading the
search warrant prior to executing it, the Court was unsuccessful in locating any reported cases
that established that a law enforcement officer who fails to read a search warrant prior to
executing it thereby violates a plaintiff’s Fourth Amendment rights. While Plaintiff cites to Groh
v. Ramirez , 540 U.S. 551 (2004) as support for such a legal proposition, the Court finds that the
29

Groh decision is inapposite. In Groh, the Court held that a search was unreasonable under the
Fourth Amendment where the warrant on which the search was based did not list the items to be
seized at all, and further concluded that an action for damages under Bivens could proceed
because the petitioner, the officer who executed the search warrant, was not entitled to qualified
immunity where he had failed to read the warrant because if he had read the warrant, he would
have known the warrant was so obviously deficient. Groh, 540 U.S. at 563. “It is incumbent on
the officer executing a search warrant to ensure the search is lawfully authorized and lawfully
conducted.” Id. “That is not a duty to proofread; it is, rather, a duty to ensure that the warrant
conforms to constitutional requirements.” Id. at 563 n. 6. See also U.S. v. Watson, 498 F.3d 429,
433 (6th Cir. 2007) (“Groh does not impose a strict proofreading requirement upon an officer
obtaining a search warrant, but rather a duty to ensure that the warrant conforms to constitutional
requirements.”) (citation omitted). Therefore, the Court concludes that, even assuming arguendo
that said conduct violates the Fourth Amendment, there was no clearly established precedent that
would have put the Defendants on notice that they violated Plaintiff’s rights under the Fourth
Amendment by failing to read the search warrant prior to executing it. Therefore, Defendants
Machacek, Zinram, Pierce, Dietz, Angelo, Rogers, Weindorf,4 are entitled to qualified immunity
with respect to this Fourth Amendment claim and Defendants’ motion for summary judgment as
to such claim will be granted accordingly.
Finally, to the extent that Plaintiff cites the failure of the Defendants to notice the lack of
a signature on the search warrant by the magisterial district judge as having violated his Fourth
4

Plaintiff stated in his Opposition Brief that “[i]f Sterniak isn’t signed on the log and denies entry I will abandon my
claim against Sterniak for this particular aspect of the violations that occurred, but only for this aspect.” (ECF 99 at
pp. 30-31). Defendant Sterniak is not signed in on the crime scene entry log as participating in the search of
Plaintiff’s residence once the search warrant arrived, and he stated in his deposition that he remained outside of
Plaintiff’s residence for the remainder of the day after his brief entrance in the morning of July 25, 2013, and that he
left before the search warrant arrived. (ECF No. 93-1 at pp. 41-42; ECF 93-4 at p. 6 (internal p. 24)).

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Amendment rights, the Court in U.S. v. Jackson, 617 F.Supp.2d 316, 324 n. 7 (M.D. Pa. 2008),
aptly found that “the text of the Fourth Amendment does not mandate that a warrant be signed,
making a lack of signature more akin to the technical mistakes discussed in Sheppard and
referenced in Groh”), citing Groh, 540 U.S. at 551; Massachusetts v. Sheppard, 468 U.S. 981
(1984). In particular, the Court in Jackson observed:
[p]rovided that a search warrant is applied for in person, the text of neither
the Fourth Amendment nor Federal Rule of Criminal Procedure 41
required the issuing authority to sign the warrant. Instead, the Fourth
Amendment dictates that a warrant shall not “issue” unless it is supported
by probable cause. Generally, an issuing authority’s finding of probable
cause is conveyed via his or her signature on a warrant. However, signing
a search warrant is just one of a number of methods that an issuing
authority may use to signal that the warrant complies with the Fourth
Amendment’s probable cause requirement. In the absence of a signature,
“a court may consider other evidence that the judge found probable cause
and approved the warrant. To hold otherwise would elevate form over
substance and allow inadvertent, procedural errors to vitiate substantively
valid warrants.
Id. at 320-21 (citations omitted).
Upon review of the Application for Search Warrant and Authorization form in this case,
it is apparent that Defendant Kloss applied for the search warrant in person. (ECF No. 93-1 at p.
2). Magisterial District Judge Hammer signed and dated that part of the form which indicated
that the Application had been sworn to and subscribed before him on July 25, 2013. Id. The box
on the Search Warrant was checked that stated: “This warrant shall be served as soon as
practicable and shall be served only between the hours of 6AM to 10PM but in no event later
than,” and the date and time the search warrant was issued was filled in: “25th day of July 2013 at
3:15 PM, o’clock.” Id. It was not signed by Judge Hammer, as the issuing authority, but, instead,
was twice stamped with Judge Hammer's seal. Id.

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In light of the above, the Court finds that there is sufficient evidence from which to
conclude that the Judge Hammer found probable cause and approved the search warrant; thus,
the warrant “contains sufficient indicia of issuance to satisfy Fourth Amendment requirement.”
Jackson, 617 F.Supp.2d at 321. Accordingly, the search warrant did not violate the Fourth
Amendment, and any failure by Defendant Kloss or the other Defendants to notice that the
search warrant was not signed by the issuing authority could not have resulted in a violation of
Plaintiff’s Fourth Amendment rights.
An appropriate Order follows.

/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge

Dated: September 26, 2017

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