Hemingway et al v. Russo et al
Filing
77
AMENDED MEMORANDUM DECISION AND ORDER granting in part and denying in part. Plaintiff's motion is DENIED. Plaintiffs' second, third, fourth, and fifth causes of action are DISMISSED WITH PREJUDICE. Defendant Bradley Bailey is entitled to qualified immunity. Plaintiffs' claims against him are DISMISSED WITH PREJUDICE. Defendant Kevin Wyatt is entitled to qualified immunity. Plaintiffs' claims against him are DISMISSED WITH PREJUDICE. In all other respects, Defendants' motion is DENIED. Signed by Judge Jill N. Parrish on 8/27/2018. (mas)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
TRUDY HEMINGWAY, et al.,
AMENDED1 MEMORANDUM DECISION
AND ORDER
Plaintiffs,
v.
E. ROBERT RUSSO, et al.,
Case No. 2:16-cv-00313
Defendants.
District Judge Jill N. Parrish
Before the court are cross-motions for summary judgment. The first (ECF No. 43) was
filed on December 15, 2017 by defendants Bradley Bailey, Daniel Bartlett, Cottonwood Heights
City, Christopher McHugh, Daniel Morzelewski, Robert Russo, and Kevin Wyatt (collectively,
“Defendants”). The second (ECF No. 44) was filed on the same day by plaintiffs Aaron
Christensen, Trudy Hemingway, Daniel McGuire, and Michael McGuire (collectively,
“Plaintiffs”). For the reasons below, Defendants’ motion is granted in part and denied in part,
and Plaintiffs’ motion is denied.
I.
LEGAL STANDARD
Summary judgment is appropriate when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). A dispute is genuine only if “a reasonable jury could find in favor of the
1
This Order was amended on August 27, 2018, pursuant to the court’s Order Granting in Part
and Denying in Part Defendant Daniel Morzelewski’s Motion to Amend Judgment (ECF No.
76). Part III of this Order has been amended to reflect that Officer Morzelewski did plead the
affirmative defense of absolute quasi-judicial immunity. Part III has also been amended to
include a more comprehensive discussion and resolution of Officer Morzelewski’s assertion of
quasi-judicial immunity.
nonmoving party on the issue.” Macon v. United Parcel Serv., Inc., 743 F.3d 708, 712 (10th Cir.
2014). “In making this determination,” the court must “view the evidence and draw reasonable
inferences therefrom in the light most favorable to the nonmoving party.” Id. (citation omitted).
“When a defendant asserts qualified immunity at summary judgment, the burden shifts to
the plaintiff to show that: (1) the defendant violated a constitutional right and (2) the
constitutional right was clearly established.” Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir.
2009). This burden is a heavy one. See Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir.
1995). And qualified immunity protects “all but the plainly incompetent or those who knowingly
violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
In qualified immunity cases, the requirement that the court view the evidence and draw
inferences in the light most favorable to the nonmoving party “usually means adopting . . . the
plaintiff’s version of the facts.” Scott v. Harris, 550 U.S. 372, 378 (2007). However, “a
plaintiff’s version of the facts must find support in the record.” Thomson v. Salt Lake Cty., 584
F.3d 1304, 1312 (10th Cir. 2009).
When both parties move for summary judgment, the court must analyze each motion
individually and on its own merits. See Buell Cabinet Co., Inc. v. Sudduth, 608 F.2d 431, 433
(10th Cir. 1979). Consequently, the court considers Defendants’ motion under the qualified
immunity analysis before turning to Plaintiffs’ motion.
II.
FACTS
The following recitation of facts adopts Plaintiffs’ version of events to the extent that
their story finds support in the record.
A. THE TAYLORSVILLE RESIDENCE
Trudy Hemingway owns a home in Taylorsville, Utah (the “Taylorsville Residence”). In
2015, the Taylorsville Residence was listed on Salt Lake County records as a single-family
2
residence. It had one mailbox, one street address, and one set of utilities. The City of Taylorsville
had no record of there being separate apartments in the home. And Hemingway had not obtained
a building permit to convert part of the home into apartments, nor had she informed anyone with
the City of Taylorsville about any apartments at her home.
Nevertheless, in late 2015, the home was, in fact, home to more than one family. Ms.
Hemingway and her adult sons Aaron Christensen and Michael McGuire lived on the main level.
Hemingway’s adult son Daniel McGuire lived in a portion of the basement. And a woman named
Misty Italasano rented another portion of the basement from Hemingway.
Italasano’s basement residence was separated from the rest of the Taylorsville Residence
by a door, in front of which Italasano had placed several items of furniture. That door remained
closed and locked by a double-sided deadbolt that required a key to be unlocked from either side.
Hemingway had the only key. The only other entrance to Italasano’s residence was an exterior
basement door opening to a set of stairs on the side of the house.
B. INVESTIGATION OF MISTY ITALASANO
In October 2015, a confidential informant told Detective Christopher McHugh of the
Cottonwood Police Department that Italasano was selling methamphetamine out of the
Taylorsville Residence. The informant told McHugh that Italasano lived in the basement of the
home, and the informant described the basement as containing “a small kitchen on the left, a
bedroom on the right, and then multiple doors . . . in the backside of the basement.”
The informant also told McHugh that James Andrew Carter and Greg Magalogo were
associated with Italasano. Carter was a convicted felon and a federal fugitive with an outstanding
national warrant for his arrest on a weapons charge. Magalogo was also a convicted felon with a
history of assault involving firearms.
3
For approximately one month, McHugh conducted surveillance on the Taylorsville
Residence. During that time, McHugh surveilled the home almost daily on weekdays—
sometimes for a few minutes, sometimes for a few hours. In the course of his surveillance,
McHugh recorded and investigated as many license plates as possible from vehicles parked at the
residence or nearby. He discovered that some of the vehicles belonged to Hemingway and her
sons. And, working with the Unified Police Department (“UPD”), McHugh determined that
Hemingway owned the home and that police had been called there for minor complaints in the
past.2
While surveilling the Taylorsville Residence, McHugh observed Italasano, Magalogo,
and Carter coming and going. Once, somewhere in the middle of his month of surveillance,
McHugh watched Italasano enter the front door and then exit about ten minutes later. But on all
other occasions, Italasano and those accompanying her entered by walking through the side gate
on the left side of the house, down the steps, and into the basement where she lived.
Beyond Italasano, McHugh knew there were other residents in the building, including at
least Hemingway and Michael McGuire. McHugh also observed younger men who were not
suspected in drug activity coming and going through the front entrance. He did not observe any
of these individuals use the basement door that Italasano used.
On two occasions, McHugh used his confidential informant to conduct controlled drug
purchases at the Taylorsville Residence. On the first buy, the informant entered the building by
walking through the side gate, down the steps, and then through the basement door. On the
second buy, the informant parked in front of the residence. McHugh observed Italasano come up
the stairs, exit through the side gate, and approach the car.
2
There is no evidence that the past complaints were related to drug activity.
4
Throughout McHugh’s surveillance, he observed what he calls “short-stay traffic.”
People would approach the home, go through the side gate, down the stairs, and into the
basement. They would stay “for two to three minutes, usually less than five minutes,” and then
exit, walk up the stairs, go back through the side gate, re-enter their vehicle, and leave.
In short, while several factors suggested to McHugh that the building was a single-family
residence, there were other significant indicia that the building was a multifamily residence and
that Italasano was actually living in a basement apartment.
C. SEARCH WARRANT AFFIDAVIT
On October 30, 2015, McHugh submitted an affidavit for a warrant to search the
Taylorsville Residence. In the affidavit, McHugh characterized the Taylorsville Residence as “a
single family residence.” He described people entering the residence for short periods of time
and then exiting. He also described instances where vehicles would approach the residence and
Italasano would exit and make contact with the vehicles’ drivers. McHugh’s affidavit indicated
that he was “able to gather license plate information [from] the vehicles coming and going from
the residence[,] and they were connected to people with narcotics history.” McHugh’s affidavit
identified Magalogo, indicated he was staying with Italasano at the Taylorsville Residence, and
described him as “a known gang enforcer for a Polynesian gang” with “multiple convictions for
aggravated assault and felon in possession of a dangerous weapon.” The affidavit recounted the
controlled buys and then requested a search warrant for the “suspected place,” which included
“the entire premise and curtilage at that location.”
McHugh’s affidavit is notable for what it did not include. It omitted entirely any
indication that Hemingway and her sons lived at the Taylorsville Residence. It also omitted any
indication that Italasano’s basement residence was a separate unit. Specifically, the affidavit
omitted the following information known to McHugh:
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1. Trudy Hemingway owned the Taylorsville Residence.
2. Hemingway lived in the Taylorsville Residence.
3. Hemingway’s adult son Michael McGuire also lived in the Taylorsville Residence.
4. The building had two apparent and well-used entrances: one in the front, and one through
a side gate and down a set of concrete stairs.
5. Italasano was living in the basement. McHugh observed her entering via the front door on
only one occasion, and she exited again after ten minutes. Otherwise, Italasano used the
basement door exclusively.
6. Magalogo was living in the basement. McHugh never observed him entering or exiting
via the front door.
7. The basement where Italasano and Magalogo lived included a kitchen and a bedroom.
8. McHugh conducted surveillance for nearly a month.
9. During his surveillance, McHugh saw individuals he did not suspect of drug-related
activity coming and going through the front door. McHugh did not observe the same
individuals using the basement door.
10. Several of the vehicles parked near the residence were registered to Hemingway and her
sons.
11. McHugh did not suspect Hemingway or her sons of involvement in Italasano’s criminal
activity.
12. All short-stay traffic related to suspected criminal activity was to the basement—not the
main floor.
6
13. When Italasano would leave the Taylorsville Residence to conduct suspected drug
transactions in front of the Taylorsville Residence, she would exit from (and return to)
the basement.
In short, McHugh’s affidavit did not include any information that would have suggested
that anyone other than Italasano and Magalogo lived at the Taylorsville Residence. One
incomplete sentence in the affidavit, if completed, might have indicated that Italasano was just
one of several residents or that she lived in a separate unit: Describing the first controlled buy,
McHugh declared, “The CI [Confidential Informant] proceeded to the location where the CI
entered the target location through the south side door leading.” McHugh watched his informant
walk through the side gate, down a set of stairs, and into the basement. But his affidavit
inexplicably and jarringly omitted where, exactly, the south side door led. It led to Italasano’s
basement home—a fact McHugh knew when he drafted the affidavit.
After McHugh prepared his affidavit, he delivered it to then-Sergeant Daniel Bartlett,
who reviewed it. Bartlett and McHugh discussed the nature of the residence and the possibility of
separate living spaces. Bartlett learned from McHugh that Italasano rented a portion of the
basement and that Hemingway and her sons lived elsewhere in the home. He learned that, with
one exception, Italasano had been seen going in through the side gate and to the basement. He
learned that Hemingway and her sons were not suspected in the criminal activity McHugh was
investigating.
Despite their discussion regarding other residents and separate living spaces, Bartlett
suggested no changes to McHugh’s affidavit. Instead, the affidavit was passed along to a district
attorney absent any reference to other residents at the address or any indication of separate living
spaces. The district attorney also suggested no revisions to the affidavit.
7
On October 30, 2015—the same day McHugh submitted the affidavit—Justice Court
Judge Jeanne M. Robison issued a search warrant. That warrant commanded officers to search,
day or night, without knocking, “the premises known as 4796 S 3475 W, Taylorsville, Utah,
84129.” The warrant described the premises as “a single family residence, with tan vinyl siding,
a rock facia [sic], and brown shingle roof.” And it explained that “[t]he suspected place also
includes the entire premises and curtilage at that location, including all outbuildings, sheds, and
vehicles found to be under the control of [Italasano] in which evidence sought under this warrant
could be hidden.”
D. THE SEARCH
Before executing the search warrant, McHugh and Bartlett briefed UPD officers.
McHugh described his investigation and related the information contained in the warrant. He
identified Italasano, Magalogo, and Carter as “suspects,” and Hemingway and Michael McGuire
as “subjects.” McHugh and Bartlett discussed the presence of Hemingway and her sons,
explaining to the UPD officers that they believed the family was not involved in Italasano’s
criminal activity.
Then, in the wee hours of November 4, 2015, the UPD SWAT team used an explosive
charge on the basement entrance and a battering ram on the front door. In short order, the SWAT
team rounded up, handcuffed, and detained Hemingway and her sons: Aaron, Daniel, and
Michael. They also handcuffed Italasano and Charish Wakefield, a woman who had been staying
with Italasano. After securing the home, the UPD turned the scene over to Cottonwood Heights
police.
Thereafter, Cottonwood Heights police officers played various roles. Officer Daniel
Morzelewski took custody of Italasano and Wakefield. Then he escorted one of the women
(presumably Wakefield) back to the house. From there, Morzelewski entered the main level of
8
the Taylorsville Residence, where he helped take custody of Plaintiffs. At some point, Daniel
McGuire told officers that he lived in the basement but that Italasano lived in a separate
basement unit. Curious, Morzelewski walked down a set of stairs and through several basement
rooms. It is unclear whether Morzelewski was able to access Italasano’s portion of the basement
via the internal stairway.
Officer Bradley Bailey searched the basement apartment where Italasano lived.
Officer Kevin Wyatt photographed the scene and took possession of the evidence.
Wyatt’s photographs make it clear that Italasano’s basement home included a kitchen with a
washer/dryer, a dishwasher, a range/oven, a refrigerator, kitchen cabinetry, an island, a
microwave, and a sink. They also show a cluttered living room, a full bathroom, and a bedroom.
Bartlett and McHugh arrived at the scene just as the UPD was turning the scene over to
Cottonwood Heights police. Bartlett walked around the home, saw that Italasano was in custody,
and concluded that Hemingway and her sons were not involved in Italasano’s criminal activity.
Still, Bartlett and McHugh kept Plaintiffs in handcuffs while police searched both the main level
and both portions of the basement. At some point, Italasano told Bartlett that she rented a room
from Hemingway and that she had “her own little apartment,” and Hemingway told McHugh that
Italasano rented a portion of the basement and that Italasano’s residence was separated from the
rest of the home by an interior door with a lock. McHugh verified the existence of such a lock.
Eventually, Bartlett ordered that Hemingway’s handcuffs be removed. But he kept her sons in
handcuffs and moved the whole family from the living room to the garage while another officer
walked a drug-sniffing canine through their home.
9
III.
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
ON THE BASIS OF QUALIFIED IMMUNITY
Plaintiffs bring five causes of action for alleged civil rights violations under federal and
state law: (1) illegal search and seizure by the individual defendants; (2) excessive force and
unnecessary rigor by the individual defendants; (3) violation of the right to free speech by all
defendants; (4) municipal liability by Cottonwood Heights for the conduct alleged in Claim I;
and (5) municipal liability by Cottonwood Heights for the conduct alleged in Claim II.3
Defendants argue that they are entitled to summary judgment on Plaintiffs’ first, second,
and third causes of action on the basis of absolute or qualified immunity. In response, Plaintiffs
concede their second, third, fourth, and fifth causes of action. Consequently, the question
presented by Defendants’ motion is relatively straightforward: Are the individual defendants
entitled to absolute or qualified immunity as to Plaintiffs’ first cause of action for an
unconstitutional search and seizure?
A. ABSOLUTE IMMUNITY
Defendants first argue that they are entitled to summary judgment on the basis of judicial
immunity and quasi-judicial immunity. Defs.’ Mot. Summ. J. 3, ECF No. 43. Both are forms of
absolute immunity. But neither theory applies here.
Judicial immunity is an absolute immunity from suit for acts performed in a judge’s
judicial capacity. Mireles v. Waco, 502 U.S. 9, 11 (1991). Clearly, none of the defendants in this
case were acting in a judicial capacity.
3
Plaintiffs have resolved their claims against the UPD. Consequently, none of the remaining
defendants in this action are UPD officers. Rather, Plaintiffs’ surviving claims are against
Cottonwood Heights officers (who were involved in obtaining the search warrant and who took
over the scene after the UPD SWAT team breached the home), the Cottonwood Heights police
chief, and the city itself.
10
Quasi-judicial immunity is an extension of judicial immunity to non-jurists “for acts
intertwined with the judicial process.” Valdez v. City and Cty. of Denver, 878 F.2d 1285, 1287
(10th Cir. 1989). But it does not extend to officers applying for search warrants. See Malley v.
Briggs, 475 U.S. 335, 343 (1986) (holding that officers requesting warrants are entitled only to
qualified immunity and noting that, “[i]n the case of the officer applying for a warrant, it is our
judgment that the judicial process will on the whole benefit from a rule of qualified rather than
absolute immunity”).
Furthermore, “the doctrine of quasi-judicial immunity does not apply to the execution of
a search warrant, which is ‘always subject to judicial review for unreasonableness.’” Lockard v.
City of Lawrenceburg, Ind., 815 F. Supp. 2d 1034, 1041 (S.D. Ind. 2011) (quoting Irwin v. City
of Lawrenceburg, Ind., 693 F. Supp. 2d 846, 854 (S.D. Ind. 2010)); see also Dalia v. United
States, 441 U.S. 238, 258 (1979) (“we have held—and the Government concedes—that the
manner in which a warrant is executed is subject to later judicial review as to its
reasonableness”); Zurcher v. Stanford Daily, 436 U.S. 547, 559–60 (1978) (noting that
possession of a warrant and probable cause does not necessarily shield searches from Fourth
Amendment review); Fail v. W. Valley City, No. 2:04-CV-1094-PGC, 2006 WL 842910, at *4
(D. Utah Mar. 28, 2006) (“In determining the reasonableness of an officer’s actions when the
officer executes a search warrant secured by another officer, the standard becomes one of good
faith. An officer without knowledge of the facts underlying the search warrant is entitled, when
executing the warrant, to rely on its validity. So long as the officer reasonably believed his
actions to be lawful, he is protected by qualified immunity.”) (emphasis added) (citing Salmon v.
Schwarz, 948 F.2d 1131, 1141 (10th Cir. 1991)); Harte v. Bd. of Comm’rs of City of Johnson
City, Kan., No. 13-2586-JWL, 2017 WL 5068907, at *4 (D. Kan. Nov. 3, 2017) (“Because
11
factual disputes exist as to whether the deputies exceeded the scope of the warrant by remaining
in plaintiffs’ home and continuing to search the home after the dissipation of probable cause, the
search warrant does not automatically bar plaintiffs’ trespass claim. Defendants, then, have not
established that they are entitled to quasi-judicial immunity and this claim must proceed to
trial.”); Cook v. Gibbons, No. 404CV0073 GHJTR, 2005 WL 2260689, at *2 (E.D. Ark. Sept.
12, 2005) (“Although how best to proceed in performing a search is generally left to the
discretion of officers executing a warrant, possession of a search warrant does not give the
executing officers a license to proceed in whatever manner suits their fancy. The manner in
which a warrant is executed is always subject to judicial review to ensure that it does not traverse
the general Fourth Amendment proscription against unreasonableness.”) (citations omitted).
B. QUALIFIED IMMUNITY
Turning to qualified immunity, the court first addresses alleged constitutional violations
regarding the search warrant affidavit submitted by McHugh. Then it considers alleged
constitutional violations regarding Bartlett’s review of the affidavit. Finally, the court addresses
alleged constitutional violations regarding the search and seizure by Bartlett, McHugh,
Morzelewski, Bailey, and Wyatt.
1. McHugh’s Affidavit
Plaintiffs take issue with two aspects of McHugh’s affidavit. First, they contend that
McHugh made a false statement in the affidavit when he described the residence as “a single
family residence.” Second, they contend that McHugh deliberately omitted information from the
affidavit that tended to show that the residence was not a single-family residence. Plaintiffs
believe that McHugh’s actions violate their Fourth Amendment rights (as applicable to the states
through the Fourteenth Amendment) because if this information had been included, and the false
statement amended, there would not have been probable cause to search Plaintiffs’ living area.
12
a. Whether McHugh Violated a Constitutional Right
First, the court must consider whether McHugh violated Plaintiffs’ Fourth Amendment
rights. The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no warrants
shall issue, but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.
U.S. Const. amend. IV.
A person’s Fourth Amendment rights are violated when an officer: (1) deliberately or
recklessly makes false statements or omissions in a warrant affidavit, and (2) correcting the false
statements or including the omissions would have vitiated probable cause. Stewart v. Donges,
915 F.2d 572, 582–83 (10th Cir. 1998); see also Franks v. Delaware, 438 U.S. 154, 155–56
(1978).
McHugh described the Taylorsville Residence as “a single family residence.” Plaintiffs
argue this was an intentional, knowing, or reckless misstatement. There is significant evidence in
the record to support Plaintiffs’ assertion that McHugh knew (or at least inferred) that the
Taylorsville Residence was not a single-family residence. Consequently, for purposes of
Defendants’ motion, the court adopts Plaintiffs’ version of the facts and assumes McHugh knew
that the Taylorsville Residence was, in fact, a multifamily dwelling. Therefore, describing the
home as “a single family residence” in the affidavit constituted a knowing and intentional
misstatement.
Even if McHugh did not make the false statement knowingly and deliberately, there is
evidence in the record to support the finding that he acted with a reckless disregard for the truth.
“A reckless disregard for the truth exists when the affiant in fact entertained serious doubts as to
the truth of his allegations, and a factfinder may infer reckless disregard from circumstances
13
evincing obvious reasons to doubt the veracity of the allegations.” DeLoach v. Bevers, 922 F.2d
618, 622 (10th Cir. 1990) (citations and alterations omitted). In this case, McHugh’s month-long
surveillance of the Taylorsville Residence evinced obvious reasons to doubt the veracity of
McHugh’s sworn statement that the Taylorsville Residence was a single-family residence:
Hemingway and Michael McGuire’s residence in the building and their exclusive use of the front
door; Italasano’s near-exclusive use of the basement door; short-stay traffic related to suspected
drug transactions taking place exclusively in the basement; the CI’s report of the basement
layout; and the two drug buys (one in the basement and one where Italasano exited from the
basement to complete the transaction).
In addition to the alleged misstatement, McHugh also omitted all indicia of separate
residences. Nowhere in his affidavit did he mention Hemingway or her sons. Nowhere did he
indicate that there were two well-used entrances to the Taylorsville Residence. Nowhere did he
disclose that Italasano and Magalogo, the subjects of his investigation, used only one of those
entrances to conduct suspected drug transactions. McHugh’s affidavit, viewed in the light most
favorable to Plaintiffs, seems specifically crafted to mislead the magistrate. An otherwise
uninformed reader perusing the affidavit would be led to believe that Italasano and Magalogo
had the run of the Taylorsville Residence, that they were the sole residents, and that the CI
conducted a controlled buy and simply entered the building through the south side door. From
the affidavit, the magistrate had no reason to suspect that there was anyone other than a notorious
drug dealer and a violent ex-con living at the Taylorsville Residence. But McHugh knew
otherwise. He knew there were unsuspected individuals living in the home. He had never seen
them use the basement entrance. He had never seen a suspected or confirmed drug transaction
involving the main floor. Yet he failed to disclose any of this information to the magistrate.
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These facts suggest that McHugh’s omissions were knowing and deliberate. He did not
accidentally forget to include the name of the building’s owner and primary resident. He did not
simply happen to leave the Hemingway family out of his affidavit and then, days later, brief the
UPD regarding an entire family unsuspected of criminal activity.
And even if McHugh’s omissions were not made knowingly, a jury could conclude they
were made recklessly. The Fourth Amendment “categorically prohibits the issuance of any
warrant except one ‘particularly describing the place to be searched and the persons or things to
be seized.’” Maryland v. Garrison, 480 U.S. 79, 84 (1987) (quoting U.S. Const. amend. IV).
“The manifest purpose of this particularity requirement was to prevent general searches.” Id. By
omitting what he did from his affidavit, McHugh presented to the magistrate a picture of an
entire building being used for drug trafficking, when the evidence available to him suggested
only a portion of the building being used for that purpose. A reasonable person would know
these omissions involved the type of information a magistrate would wish to know when
considering a search warrant. See Stonecipher v. Valles, 759 F.3d 1134, 1142 (10th Cir. 2014)
(citing Wilson v. Russo, 212 F.3d 781, 787–88 (3d Cir. 2000) (holding that “omissions are made
with reckless disregard if an officer withholds a fact in his ken that any reasonable person would
have known that this was the kind of thing the judge would wish to know”)); see also DeLoach,
922 F.2d at 622 (“Recklessness may be inferred from omission of facts which are ‘clearly
critical’ to a finding of probable cause.”) (citing Hale v. Fish, 899 F.2d 390, 400 (5th Cir. 1990);
United States v. Reivich, 793 F.2d 957, 961 (8th Cir. 1986)).
McHugh knowingly or recklessly made a misstatement and omissions. But would
amending and including McHugh’s false statement and omissions have vitiated probable cause to
search the entire Taylorsville Residence? When false statements are involved, “the existence of
15
probable cause is determined by setting aside the false information and reviewing the remaining
contents of the affidavit.” Grubbs v. Bailes, 445 F.3d 1275, 1278 (10th Cir. 2006) (quoting
Taylor v. Meacham, 82 F.3d 1556, 1562 (10th Cir. 1996)). “Where information has been omitted
from an affidavit, we determine the existence of probable cause by examining the affidavit as if
the omitted information had been included and inquiring if the affidavit would still have given
rise to probable cause for the warrant.” Id. (quoting Taylor, 82 F.3d at 1562). “But whether we’re
talking about acts or omissions the judge’s job is much the same—we must ask whether a
warrant would have issued in a but-for world where the attesting officer faithfully represented
the facts.” United States v. Herrera, 782 F.3d 571, 575 (10th Cir. 2015).
Simply put, the question is whether, with a remedied affidavit, there still existed “a fair
probability that contraband or evidence of a crime [would] be found in a particular place.”
United States v. Carter, No. 06-20073, 2007 WL 60937, at *5 (D. Kan. Jan. 8, 2007) (quoting
Illinois v. Gates, 462 U.S. 213, 238 (1983)). However, in a civil rights suit like this one, whether
there was probable cause is a question of fact when there is room for disagreement. See
DeLoach, 922 F.2d at 623 (noting that the Tenth Circuit has “long recognized that it is a jury
question in a civil rights suit whether an officer had probable cause to arrest”); see also Stringer
v. Dilger, 313 F.2d 536, 541 (10th Cir. 1963); Marland v. Heyse, 315 F.2d 312, 314 (10th Cir.
1963); Llaguno v. Mingey, 763 F.2d 1560, 1565 (7th Cir. 1985) (“It is true that the issue of
probable cause ordinarily is for the judge rather than the jury. . . . But where the issue arises in a
damage suit, it is . . . a proper issue for the jury if there is room for a difference of opinion.”) (en
banc) (considering probable cause to search). Had McHugh submitted a remedied affidavit, it is
clear there still would have been a fair probability that contraband and other evidence of criminal
conduct would be found in Italasano’s basement home. However, “[t]he fourth amendment
16
requires not only that [a] warrant sufficiently specify the evidence to be seized, but also that the
scope of the warrant be limited to the specific areas and things for which there is probable cause
to search.” United States v. Leary, 846 F.2d 592, 605 (10th Cir. 1988). There is room for a
difference of opinion regarding whether a remedied affidavit would have demonstrated probable
cause to search the rest of the Taylorsville Residence. Consequently, construing facts in
Plaintiffs’ favor, the court must conclude that McHugh’s false statements and omissions, if
amended and included, would have vitiated probable cause to search the main floor of the
Taylorsville Residence. Therefore, the misstatement and omissions were material, and Plaintiffs
have established that McHugh violated their Fourth Amendment rights.
b. Whether the Right Plaintiffs Assert was Clearly Established
Because Plaintiffs have established that McHugh violated a constitutional right, the court
must consider whether that right was clearly established.
“The law is clearly established when a Supreme Court or Tenth Circuit decision is on
point, or if the clearly established weight of authority from other courts shows that the right must
be as plaintiff maintains.” Dodds v. Richardson, 614 F.3d 1185, 1206 (10th Cir. 2010) (citing
Harman v. Pollock, 586 F.3d 1254, 1261 (10th Cir. 2009) (“Harman I”). “A clearly established
right is one that is sufficiently clear that every reasonable official would have understood that
what he is doing violates that right.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (internal
quotation marks omitted).
The Supreme Court has repeatedly warned courts not to “define clearly established law at
a high level of generality.” Id. (internal quotation marks omitted). This is especially true “in the
Fourth Amendment context, where the Court has recognized that [i]t is sometimes difficult for an
officer to determine how the relevant legal doctrine . . . will apply to the factual situation the
officer confronts.” Id. (internal quotation marks omitted). Still, “[t]his is not to say that an
17
official action is protected by qualified immunity unless the very action in question has
previously been held unlawful, but it is to say that in the light of pre-existing law the
unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640 (1987) (citations
omitted).
McHugh submitted his affidavit in late 2015. By that time, the Franks holding was more
than thirty-five years old. And the Tenth Circuit’s holding in Stewart was more than fifteen years
old. Both cases are on point, and both establish that material false statements and omissions in a
warrant affidavit, made knowingly and intentionally or with a reckless disregard for the truth,
violate the Fourth Amendment. See Franks, 438 U.S. at 155–56; Stewart, 915 F.2d at 583–83.
As the court noted above, clearly-established law should not be defined at a high level of
generality. Mullenix, 136 S. Ct. at 308. But that principle does not require the existence of a
Tenth Circuit or Supreme Court case involving precisely the misstatement and omissions at issue
here. Instead, “[t]he contours of the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.” Anderson, 483 U.S. at 640. And
“officials can still be on notice that their conduct violates established law even in novel factual
circumstances.” Handy v. City of Sheridan, 636 F. App’x 728, 738 (10th Cir. 2016) (quoting
Quinn v. Young, 780 F.3d 998, 1005 (10th Cir. 2015)). Indeed, in considering the clearlyestablished-law prong in qualified immunity cases under Franks and Stewart, the Tenth Circuit
does not consider whether it was clearly established that particular misstatements or omissions
violated plaintiffs’ rights. Instead, it considered (more broadly) whether material misstatements
and omissions violate plaintiffs’ rights. See, e.g., Salmon v. Schwarz, 948 F.2d 1131, 1139 (10th
Cir. 1991) (material omissions from an arrest affidavit); Pierce v. Gilchrist, 359 F.3d 1279, 1299
(10th Cir. 2004) (falsification of evidence post-arrest).
18
Here, a reasonable official would have understood from Franks and Stewart that drafting
a search warrant affidavit for the Taylorsville Residence with the material misstatement and
omissions noted above violated Plaintiffs’ rights. Consequently, McHugh is not entitled to
qualified immunity from suit under § 1983 for submitting a misleading affidavit.
2. Bartlett’s Review of McHugh’s Affidavit
As McHugh’s superior officer, Bartlett reviewed the affidavit before its submission.
Plaintiffs argue that Bartlett is also liable for violations of the Fourth Amendment because he
reviewed the affidavit but failed to prevent the harm caused by McHugh’s false statement and
omissions.
a. Whether Bartlett Violated a Constitutional Right
First, the court must consider whether Bartlett violated Plaintiffs’ constitutional rights.
The Tenth Circuit has instructed:
[A]ll law enforcement officials have an affirmative duty to intervene to protect the
constitutional rights of citizens from infringement by other law enforcement
officers in their presence. An officer who fails to intercede is liable for the
preventable harm caused by the actions of the other officers where that officer
observes or has reason to know . . . that any constitutional violation has been
committed by a law enforcement official.
Vondrak v. City of Las Cruces, 535 F.3d 1198, 1210 (10th Cir. 2008) (quoting Anderson v.
Branen, 17 F.3d 552, 557 (2d Cir. 1994)). However, “[i]n order for liability to attach, there must
have been a realistic opportunity to intervene to prevent the harm from occurring.” Id. (quoting
Anderson, 17 F.3d at 557).
As the court has already explained, a reasonable jury could find that McHugh knowingly
or recklessly made a material misstatement and material omissions in the affidavit. Bartlett
reviewed the affidavit and knew it did not fully reflect McHugh’s understanding of the
Taylorsville Residence. Bartlett knew there were other individuals residing in the home. He
19
knew they were not suspected in the crimes McHugh was investigating. He and McHugh even
discussed the possibility that the home contained separate living spaces. Bartlett was so
convinced the Hemingway family was not involved that he and McHugh also discussed the
family’s presence at length with the UPD before executing the warrant.
Bartlett had reason to know that McHugh had committed a constitutional violation in
how he drafted the affidavit. Bartlett also had a realistic opportunity to intervene and require
McHugh to draft an accurate affidavit—one that did not omit or misstate material facts. Despite
his knowledge and opportunity, Bartlett did nothing to intervene. His failure to intervene makes
him potentially liable for the preventable harm caused by McHugh’s actions.
b. Whether the Right Plaintiffs Assert was Clearly Established
Because Plaintiffs have established that Bartlett violated a constitutional right, the court
must consider whether that right was clearly established.
As early as 1984, the Tenth Circuit made it clear that law enforcement officials who fail
to intervene to prevent constitutional violations by another officer may be liable under § 1983. In
Lusby v. T.G. & Y. Stores, Inc., the Tenth Circuit reached that conclusion in circumstances
involving an excessive force claim. 749 F.2d 1423, 1433 (10th Cir. 1984). And in Mick v.
Brewer, the court held that “the law was clearly established that a law enforcement official has
an affirmative duty to intervene to prevent another law enforcement official’s use of excessive
force” before June 18, 1992. 76 F.3d 1127, 1136 (10th Cir. 1996).
In Hall v. Burke, the Tenth Circuit noted that officers’ affirmative duty to intervene is not
limited to the excessive force context:
[I]t is clearly established “that all law enforcement officials have an affirmative
duty to intervene to protect the constitutional rights of citizens from infringement
by other law enforcement officers in their presence. An officer who fails to
intercede is liable for the preventable harm caused by the actions of the other
officers where that officer observes or has reason to know: (1) that excessive
20
force is being used, (2) that a citizen has been unjustifiably arrested, or (3) that
any constitutional violation has been committed by a law enforcement official [.]
In order for liability to attach, there must have been a realistic opportunity to
intervene to prevent the harm from occurring. Whether an officer had sufficient
time to intercede or was capable of preventing the harm being caused by another
officer is an issue of fact for the jury unless, considering all the evidence, a
reasonable jury could not possibly conclude otherwise.”
12 F. App’x 856, 861 (10th Cir. 2001) (emphasis added) (quoting Anderson v. Branen, 17 F.3d
552, 557 (2d Cir. 1994) (citations omitted)). The broad language of Hall makes it clear that
officers who fail to intercede are liable when those officers observe or have reason to know that
any constitutional violation has been committed by a law enforcement official.
As the court has already explained, it was clearly established that material misstatements
and omissions, made in a warrant affidavit, violated Plaintiffs’ Fourth Amendment rights.
Bartlett knew that Hemingway and at least one of her sons lived at the Taylorsville Residence.
He knew they were not suspected of involvement with Italasano’s alleged criminal activity. He
was aware that there might be separate living units in the Taylorsville residence. But the affidavit
he reviewed stated, without reservation, that the building was a single-family residence, and it
omitted entirely any mention of other, unsuspected occupants. Upon reading McHugh’s drafted
affidavit, Bartlett had reason to know that McHugh had misstated and omitted material
information. Any reasonable officer, knowing what Bartlett knew, would have known it was his
duty to intervene. Therefore, Bartlett is not entitled to qualified immunity.
3. Search and Seizure by Bartlett, McHugh, Morzelewski, Bailey, and Wyatt.
Finally, Plaintiffs allege that, at some point during the search and seizure, Bartlett,
McHugh, Morzelewski, Bailey, and Wyatt became aware that there was a risk their named
suspect (Italasano) lived in a separate unit within the Taylorsville Residence. This required the
officers to retreat from their search and release Plaintiffs. Plaintiffs argue that the officers’ failure
to retreat and Plaintiffs’ continued detention violated their Fourth Amendment rights.
21
a. Whether Bartlett, McHugh, Morzelewski, Bailey, and Wyatt Violated a Constitutional
Right
First, the court must consider whether the officers violated Plaintiffs’ constitutional
rights.
The Fourth Amendment “protects the individual’s privacy in a variety of settings.”
Payton v. New York, 445 U.S. 573, 589 (1980). And nowhere “is the zone of privacy more
clearly defined than when bounded by the unambiguous physical dimensions of an individual’s
home.” Id. While the Fourth Amendment does not differentiate among types of “homes,” a basic
principle of Fourth Amendment law is that “searching two or more apartments in the same
building is no different than searching two or more completely separate houses.” United States v.
Hinton, 219 F.2d 324, 325–26 (7th Cir. 1955); see also Garrison, 480 U.S. at 90 (Blackmun, J.,
dissenting) (Fourth Amendment protection applies to an apartment, “the equivalent of a singlefamily house”) (citing Ker v. California, 374 U.S. 23, 42 (1963)); McDonald v. United States,
335 U.S. 451, 454–55 (1948) (treating defendant’s room in a “rooming house” as a home).
Consequently, “[f]ederal courts have consistently held that the Fourth Amendment’s requirement
that a specific ‘place’ be described when applied to dwellings refers to a single living unit (the
residence of one person or family). Thus, a warrant which describes an entire building when
cause is shown for searching only one apartment is void.” Hinton, 219 F.2d at 326 (citing United
States v. Barkouskas, 38 F.2d 837 (M.D. Penn. 1930); United States v. Diange, 32 F. Supp. 994
(W.D. Penn, 1940); United States v. Chin On, 297 F. 531 (D. Mass. 1924); United States v.
Innelli, 286 F. 731 (E.D. Penn. 1923); United States v. Mitchell, 274 F. 128 (N.D. Cal. 1921));
see also United States v. Rios, 611 F.2d 1335, 1347 (10th Cir. 1979) (“Generally a single warrant
may authorize the search of several different places or residences; however probable cause must
be shown for searching each area.”) (citing Hinton, 219 F.2d at 325–26).
22
Sometimes, it is not readily apparent from a building’s exterior (or even from its interior)
whether it contains one or several homes. The Supreme Court addressed this issue in Garrison
and held that a search becomes unconstitutional if it continues after officers realize, or
reasonably should realize, that there are separate units within the area they are searching and the
officers are therefore “put on notice of the risk that they might be in a unit erroneously included
within the terms of the warrant.” 480 U.S. at 87 (noting that officers “were required to
discontinue the search of respondent’s apartment as soon as they discovered that there were two
separate units on the third floor”); see also Peterson v. Jensen, 371 F.3d 1199, 1203 (10th Cir.
2004) (“[A]ny search or seizure that took place after the officers knew or reasonably should have
known that they were in the wrong residence would no longer be protected by qualified
immunity.”) (quoting Pray v. City of Sandusky, 49 F.3d 1154, 1159 (6th Cir. 1995)).
The Garrison analysis “applies to detentions as well. In particular, the Supreme Court has
held that officers executing a search warrant for contraband have the authority ‘to detain the
occupants of the premises while a proper search is conducted.’” Harman v. Pollock, 586 F.3d
1254, 1262 (10th Cir. 2009) (“Harman II”) (quoting Michigan v. Summers, 452 U.S. 692, 705
(1981)). Accordingly, “an officer’s authority to detain the occupant of a residence while
searching for contraband pursuant to a warrant lasts only as long as the search is proper.” Id.
(citing Summers, 452 U.S. at 705).
Because the officers’ roles in the search and detention were distinct, the court considers
in turn whether each officer violated Plaintiffs’ Fourth Amendment rights.
Officer Bailey
It is undisputed that Bailey searched Italasano’s basement home. However, Plaintiffs do
not present any evidence to suggest that he searched Plaintiffs’ residence or participated in their
23
detention. At oral argument, counsel for Plaintiffs conceded that Bailey is entitled to qualified
immunity. Consequently, the court does not consider whether Bailey violated Plaintiffs’ Fourth
Amendment rights.
Officer Wyatt
Wyatt’s only involvement was as a photographer. While he photographed Italasano’s
basement home, it is unclear whether he ever entered Plaintiffs’ residence. At oral argument,
counsel for Plaintiffs conceded that Wyatt is also entitled to qualified immunity. Consequently,
the court does not consider whether Wyatt violated Plaintiffs’ Fourth Amendment rights.
Officers Bartlett and McHugh
In Garrison, “[t]he objective facts available to the officers at the time suggested no
distinction between McWebb’s apartment and the third-floor premises.” 480 U.S. at 88. The
Court noted:
Nothing [the suspect] did or said after he was detained outside 2036 Park Avenue
would have suggested to the police that there were two apartments on the third
floor . . . . When the officers entered the foyer on the third floor, neither [the
suspect] nor [the plaintiff] informed them that they lived in separate apartments.”
Id. at 88 n.12.
While the Supreme Court identified no objective facts suggesting a distinction between
the third-floor apartments in Garrison, several facts available to Bartlett and McHugh suggested
a distinction at the Taylorsville Residence. Indeed, the information McHugh omitted from his
affidavit contained multiple strong indicia that the Taylorsville Residence contained separate
living units. Those indicia were strong enough that McHugh and Bartlett discussed the
possibility and even disclosed their concern to the UPD in a briefing.
That possibility became more certain when Bartlett and McHugh actually entered the
Taylorsville Residence, which had objective indications that it contained separate units.
24
Italasano’s residence had a separate entrance, and it had the objective appearance of a separate
unit, complete with a full kitchen and bathroom.4 The only way to move between Italasano’s
portion of the basement to the rest of the home was through a door that had been bolted shut
(until UPD put a hole through it) and that had been blocked (until Bartlett moved a sofa from
Italasano’s side of the door).
In addition, Bartlett and McHugh were explicitly informed that there were separate living
units within the Taylorsville Residence. Italasano told Bartlett that she rented a room from
Hemingway and that she had “her own little apartment.” Hemingway told McHugh that Italasano
rented a portion of the basement and that Italasano’s residence was separated from the rest of the
home by an interior door with a lock, which McHugh verified. Daniel McGuire told Bartlett that
he and Italasano lived in separate units. And during Plaintiffs’ detention, Bartlett determined that
Hemingway and her sons were not involved and even had Hemingway’s handcuffs removed.
In short, the record indicates that Bartlett and McHugh knew early on (even before the
UPD breached the doors) that there was a possibility that the Taylorsville Residence contained
separate living units. Both officers knew that Hemingway and her sons were not included in the
warrant or in the underlying affidavit. Neither believed Hemingway or her sons to be involved in
Italasano’s suspected drug trafficking. And once they entered the Taylorsville Residence, Bartlett
and McHugh were informed (and saw the signs) that the building contained separate units.
Nevertheless, Bartlett and McHugh kept Plaintiffs detained and searched their home.
Obviously, the point is moot if Italasano’s basement residence was not, in fact, a separate
unit. But a reasonable jury could find that it was. A reasonable jury could also find that Bartlett
4
Italasano’s residence was so obviously its own separate living space that Officer Alcivar (who
is not a defendant in this action) and Bartlett both referred to Italasano’s home as a “basement
apartment” in their incident reports.
25
and McHugh knew or should have known that there were separate units in the Taylorsville
Residence prior to entry and that their very entry violated Plaintiffs’ rights. Or a reasonable jury
could find that Bartlett and McHugh discovered that there were separate units shortly after
entering and that any subsequent searches or detention violated Plaintiffs’ rights. And even if a
jury found that Bartlett and McHugh never discovered there were separate units, it could
conclude that their failure to do so was not “objectively understandable and reasonable.”
Garrison, 480 U.S. at 88; see also Harman v. Pollock, 446 F.3d 1069, 1085 (10th Cir. 2006)
(“Harman I”) (concluding that “there are material facts in dispute as to the reasonableness of the
officers’ delay in realizing that they were at a separate residence not anticipated in the warrant”
and that “factual disputes exist as to whether the full scale search took place after the officers
should have realized they were in the wrong residence”).
As the Tenth Circuit determined in Harman I, it is for a jury to decide these issues. 446
F.3d at 1085. But construing facts in favor of Plaintiffs on Defendants’ motion for summary
judgment, Bartlett and McHugh violated Plaintiffs’ Fourth Amendment rights.
Officer Morzelewski
Morzelewski helped detain Plaintiffs and searched their home. He was not present at the
UPD briefing where McHugh and Bartlett explained that the Hemingway family was not
suspected of criminal involvement with Italasano. And there is no evidence that he had any prior
knowledge of the Taylorsville Residence, of the information omitted from the warrant affidavit,
of Plaintiffs, or of Italasano.
However, Morzelewski did observe the outward signs that there were separate units
within the Taylorsville Residence. He was also present when Daniel McGuire explained that he
and Italasano lived in separate basement units. Finding McGuire’s explanation at least plausible,
26
Morzelewski took the time to descend the internal stairway and peruse the basement. But after
his search, he returned and continued to detain Plaintiffs.
As with Bartlett and McHugh, a reasonable jury could find that, at some point during the
search and detention, Morzelewski became aware that the Taylorsville Residence contained
separate units and that he was therefore on notice of the risk that he might be in a unit
erroneously included in the warrant. Or a reasonable jury could conclude that his “failure to
realize the overbreadth of the warrant” was not “objectively understandable and reasonable.”
Garrison, 480 U.S. at 88. Construing facts in favor of Plaintiffs, Morzelewski also violated
Plaintiffs’ Fourth Amendment rights.
b. Whether the Right Asserted by Plaintiffs was Clearly Established
Because Bartlett, McHugh, and Morzelewski violated a constitutional right, the court
must inquire whether the right was established at the time such that “every reasonable official
would have understood that what he is doing violates that right.” Mullenix, 136 S. Ct. at 308.
Here, the constitutional right was clearly established.
In 1987, the Supreme Court in Garrison established that officers who discover they are
searching pursuant to an overbroad search are required to discontinue their search; the Court also
established that the validity of a search pursuant to an overbroad warrant depends on whether
officers’ failure to realize the overbreadth of the warrant was “objectively understandable and
reasonable.” 480 U.S. at 87–88. In that case, the Court considered the proper execution of a
warrant commanding officers to search “the premises known as 2036 Park Avenue third floor
apartment.” 480 U.S. at 80. To the Court, the plain language of the warrant “indicate[d] that it
was intended to authorize a search of the entire third floor.” Id. at 82. But at some point during
the search, the officers became aware that the third floor actually consisted of a common area
and two distinct apartments. Id. at 81. Consequently, the warrant was overbroad.
27
The Supreme Court had no difficulty concluding that the officers legally entered the
third-floor common area. Id. at 86. However, the Court noted that “[i]f the officers had known,
or should have known, that the third floor contained two apartments before they entered the
living quarters on the third floor, and thus had been aware of the error in the warrant, they would
have been obligated to limit their search to [one] apartment.” Id. To the extent the officers did
not know that the third floor contained two apartments, the officers “were required to discontinue
the search of respondent’s apartment as soon as they discovered that there were two separate
units on the third floor and therefore were put on notice of the risk that they might be in a unit
erroneously included within the terms of the warrant.” Garrison, 480 U.S. at 87. Ultimately, the
Court concluded that “the validity of the search . . . pursuant to a warrant authorizing the search
of the entire third floor depend[ed] on whether the officers’ failure to realize the overbreadth of
the warrant was objectively understandable and reasonable.” Id. at 88. Because the officers’
failure to realize the overbreadth of the warrant earlier was reasonable, the Court held that the
officers had not violated the plaintiff’s rights. Id.
In Harman I and Harman II, the Tenth Circuit twice applied the rule of Garrison to the
search of a house and a detached garage located to the side and rear of the house. In Harman I,
the court noted that “the defendants knew early on . . . before the SERT/SWAT team entry, there
was a possibility that the garage was a separate residence.” 446 F.3d at 1085. When the officers
entered the garage, “this possibility became a strong suspicion.” Id. And it was confirmed after
the officers interviewed the plaintiffs and detained the suspects pursuant to the warrant. Id.
Because “[e]ach of the officers had ample notice that the garage may have been a separate
residence,” and because “[n]either plaintiff resembled any target described in the warrant or the
underlying affidavit,” the court concluded that “there are material facts in dispute as to the
28
reasonableness of the officers’ delay in realizing that they were at a separate residence not
anticipated in the warrant.” Id. Furthermore, “factual disputes exist[ed] as to whether the full
scale search took place after the officers should have realized they were in the wrong residence.”
Id.
On remand, the district court permitted additional discovery, and both parties sought
summary judgment. The district court granted the officers’ motion for summary judgment, and
the plaintiffs appealed.
In Harman II, the plaintiffs’ pivotal challenge relied on Garrison. They argued “that the
Officers were put on notice, upon or just after the initial entry into the apartment, that the garage
apartment was a separate and distinct residence from the main house under investigation,” and
that the officers should have left immediately thereafter. Id. at 1261. The officers countered that
they “reasonably believed that the Plaintiffs’ garage apartment was a ‘crash pad’ that was used to
store and use drugs connected to the main residence.” Id. They further contended that “the
discovery of . . . marijuana in the Plaintiffs’ apartment provided additional justification for the
detention and searches.” Id.
The court reaffirmed that, “[u]nder Garrison, once the Officers were put on notice of the
risk that they entered a home that was unconnected to the illegal activity described in the
warrant, they had an immediate duty to retreat.” Id. (citation omitted). Still, the court agreed with
the district court’s analysis and concluded that the officers’ “crash pad” theory found support in
the record. Id. at 1262. And the indicia of a separate dwelling did not so thoroughly dispel the
idea of a crash pad as to dispel probable cause. Id. The court’s conclusion regarding the crash
pad was bolstered by the officers’ discovering marijuana in plain view while still reasonably
29
believing that the plaintiffs were connected to the illegal activity at the main residence. Id. at
1265. 5
In Peterson v. Jensen, the Tenth Circuit applied Garrison to the search of an apartment
recently leased to new tenants. 371 F.3d 1199. In that case, officers obtained a search warrant
(related to allegations against David Brown and Tarek Shejheur) for a Utah residence on March
31, 1999. But on April 4, 1999, the Peterson family leased the apartment. The next day, while the
Petersons were moving in, the officers executed the search warrant. The officers quickly
discovered none of the four occupants were Brown or Shejheur. Also, a moving van sat in front
of the apartment, the Petersons had unloaded only a few boxes into the otherwise empty
apartment, and the Petersons informed the officers that they had recently signed a lease and
started to move in. Nevertheless, the officers continued searching the residence and detaining the
Petersons. Id. at 1201.
The Petersons brought suit under § 1983, and the officers moved to dismiss. The district
court denied the portion of the officers’ motion relating to qualified immunity, and the Tenth
Circuit heard the officers’ appeal. Construing the Petersons’ complaint liberally, the court held
that the Petersons had alleged a constitutional violation (“that the defendants continued to search
the premises after independently verifying that David Brown and Tarek Shejheur had moved out
5
In Harman II, the Tenth Circuit suggested that, “[s]tanding alone, the Officers’ ‘crash pad’
evidence and the marijuana in plain view may not have been sufficient to justify the full extent of
the detention and searches under the Fourth Amendment.” Id. at 1266. But taken together, they
established “that the search and detention were reasonable under the Fourth Amendment.” Id. at
1261. In this case, Defendants present no evidence that would suggest (and they have not argued)
that Plaintiffs’ home was a “crash pad” or that it was in any other way connected to Italasano’s
drug dealing. On the contrary, Bartlett and McHugh informed the UPD prior to the search that
the Hemingways were not suspects. It is reasonable to infer that they also relayed this
information to the Cottonwood Heights officers. The officers did discover some marijuana in
Daniel McGuire’s room. But Defendants do not argue that this discovery provided probable
cause to continue searching Plaintiffs’ residence.
30
of the apartment”). Id. at 1202–03. The court noted that the purpose of the officers’ search “was
to examine the residence, the belongings, and the persons of David Brown and Tarek Shejheur.”
Id. at 1203. However, “[b]ecause Mr. Brown and Mr. Shejheur no longer lived there, searching
the apartment did not fulfill the purpose of the warrant.” Id. Consequently, the officers’
continued search and detention violated well-established law under Garrison.6
Each of these cases was decided long before the officers executed the search warrant on
the Taylorsville Residence. While there are notable factual differences between these cases and
the one at bar, pre-existing law was sufficiently clear that the unlawfulness of Bartlett, McHugh,
and Morzelewski’s actions was apparent.
4. Conclusion
In sum, Bailey and Wyatt are entitled to qualified immunity. However, viewing the facts
in the light most favorable to Plaintiffs, Bartlett, McHugh, and Morzelewski violated Plaintiffs’
clearly-established rights. Consequently, they are not entitled to qualified immunity.
IV.
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
Plaintiffs argue that they are entitled to summary judgment against McHugh on Count 1
of the Amended Complaint: that the Magistrate would not have issued the warrant to search their
residence but for McHugh’s knowing or reckless misstatement and omissions.
However, as the court has already noted, and as the Tenth Circuit has long recognized, in
civil rights cases, the question of probable cause is for the jury to decide. See DeLoach, 922 F.2d
at 623. Viewing the evidence in the light most favorable to Defendants, there is room for a
6
The court notes that, in holding that the relevant law was clearly established at the time of the
search in Peterson, the Tenth Circuit cited only to Garrison, 480 U.S. at 87, and Pray, 49 F.3d at
1159. While the court here has cited Harman I, Harman II, and Peterson for the proposition that
the law was clearly established at the time, it appears that the Tenth Circuit takes Garrison as
sufficient precedent to establish the right Plaintiffs now claim.
31
difference of opinion as to whether McHugh’s alleged misstatements and omissions, if corrected
and included, would have vitiated probable cause. Consequently, summary judgment on this
claim is inappropriate.
V.
ORDER
For the reasons above, Defendants’ motion is GRANTED IN PART AND DENIED IN
PART. Plaintiffs’ motion is DENIED. The court orders as follows:
1. Plaintiffs’ second, third, fourth, and fifth causes of action are DISMISSED WITH
PREJUDICE.
2. Defendant Bradley Bailey is entitled to qualified immunity. Plaintiffs’ claims against
him are DISMISSED WITH PREJUDICE.
3. Defendant Kevin Wyatt is entitled to qualified immunity. Plaintiffs’ claims against
him are DISMISSED WITH PREJUDICE.
4. In all other respects, Defendants’ motion is DENIED.
Signed August 27, 2018
BY THE COURT
______________________________
Jill N. Parrish
United States District Court Judge
32
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