Moore v. Andreno, No. 06-3623 (2d Cir. 2007)
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06-3623-cv Moore v. Andreno 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2006 (Argued: February 7, 2007 Decided: October 22, 2007) Docket Nos. 06-3623-cv(L), 06-3748(XAP) -----------------------------------------------------x RICHARD B. MOORE, Plaintiff-Appellee-Cross-Appellant, -- v. -JOSEPH A. ANDRENO, DELAWARE COUNTY DEPUTY SHERIFF AND KURT R. PALMER, DELAWARE COUNTY DEPUTY SHERIFF, Defendants-Cross-Claimants-AppellantsCross-Appellees, COUNTY OF DELAWARE AND THOMAS MILLS, DELAWARE COUNTY SHERIFF, Defendants-Cross-Claimants, RUTH M. SINES, Defendant-Cross-Defendant. -----------------------------------------------------x B e f o r e : 33 WALKER and SACK, Circuit Judges, and DANIELS, District Judge.* Appeal by Defendants Andreno and Palmer from a judgment of 34 the United States District Court for the Northern District of New 35 York (Thomas J. McAvoy, Judge) denying their motion for summary 36 judgment. 1 2 3 Because the law governing third-party consent searches * The Honorable George B. Daniels, of the United States District Court for the Southern District of New York, sitting by designation. -1- 1 is unsettled, and because defendants made a reasonable mistake in 2 applying that law to the situation with which they were 3 confronted, we hold that defendants are entitled to qualified 4 immunity and the district court erred in denying them summary 5 judgment. 6 REVERSED and REMANDED. 7 8 9 10 11 12 13 14 15 FRANK W. MILLER, East Syracuse, N.Y., for Defendants-Cross-ClaimantsAppellants-Cross-Appellees. TERRENCE P. O LEARY, Walton, N.Y., for Plaintiff-AppelleeCross-Appellant. JOHN M. WALKER, JR., Circuit Judge: 16 Courts have long acknowledged that a person has the right to 17 establish a private sanctum in a shared home, a place to which he 18 alone may admit or refuse to admit visitors. 19 recurrence of domestic violence in our society, we are loath to 20 assume that a man may readily threaten his girlfriend, take her 21 belongings, lock her out of part of his house, and then invoke 22 the Fourth Amendment to shield his actions. 23 Andreno and Kurt R. Palmer, responding to an emergency call, were 24 faced with reconciling these two competing interests. 25 misapplied the relevant constitutional calculus, they are police 26 officers, not lawyers or mathematicians. 27 law governing the authority of a third party to consent to the 28 search of an area under the predominant control of another is -2- Yet, with the Deputies Joseph A. While they And thus, because the 1 unsettled, and because Deputies Andreno and Palmer made a 2 reasonable mistake in applying that law to the situation with 3 which they were confronted, the district court erred in denying 4 them summary judgment on qualified immunity grounds. BACKGROUND 5 6 Richard B. Moore and Ruth M. Sines were on-again, off-again 7 lovers.1 8 time in 1996-1997 and again in 2001-2002. 9 Moore s home; her furniture was there and she paid some of the They lived together in Moore s home for a period of Sines had a key to 10 bills. However, Sines was subject to certain restrictions: her 11 children lived with their fathers and Moore s study was off 12 limits to her, and it was undisputed that Moore, as she put it, 13 always kept it locked. 14 On or about April 9, 2002, while traveling to New York from 15 Tennessee, Moore and Sines had an argument, and Moore threatened 16 to kill Sines. 17 Moore s home in Delaware County, New York, Sines decided to move 18 out and had begun to pack her belongings when she discovered that 19 her helmet and snorkeling equipment were missing. 20 upstairs to see what had been going on upstairs in the last two 21 days, suspecting that Moore had moved her effects. 1 2 3 4 Shortly after their return two days later to 1 Sines went Upstairs, Like the district court, we rely on the facts set forth in defendants statement of material facts in light of the plaintiff s failure to respond timely to the defendants summary judgment motion. -3- 1 she noticed two new locks on the door to Moore s study. 2 that her missing equipment might be in Moore s study, Sines cut 3 the locks with a bolt cutter. 4 Thinking Sometime thereafter, Sines received a telephone call from an 5 unidentified caller. Fearing that it might be Moore and that he 6 could be en route to his home and bent on violence, Sines called 7 the Delaware County Sheriff s Department. 8 Department dispatched Deputies Andreno and Palmer to the scene. 9 Upon their arrival, a hysterical Sines requested the The Sheriff s 10 Deputies assistance in retrieving her belongings from Moore s 11 study.2 12 any moment. 13 allowed in th[e] [study] unless [Moore] was there and that she 14 had cut the locks off the door. 15 that the Deputies were likely to find marijuana in the study. She explained that she feared that Moore might return at She also informed the Deputies that she wasn t She may also have informed them 16 In the company of the Deputies, Sines entered the study and 17 searched it, including by opening a desk drawer and rummaging in 18 a closet. 19 paraphernalia.3 1 2 3 4 5 6 The Deputies then seized the drugs. 2 1 2 In both places, Sines discovered drugs and drug 3 It is not clear from the record whether Sines entered Moore s study prior to the arrival of the Deputies in order to verify whether or not her helmet and snorkeling equipment were, in fact, in that room -- and if not, why not. She presumably had an opportunity to do so, as she cut the bolts prior to calling the Sheriff s Department. Sines found a medical bag or briefcase in the closet. Only after opening it -- perhaps thinking her snorkeling equipment -4- 1 On May 8, 2003, a state grand jury indicted Moore on two 2 counts of criminal possession of a controlled substance in the 3 fourth degree and one count of criminal possession of a 4 controlled substance in the fifth degree. 5 the county court, after suppressing the evidence taken from the 6 scene, dismissed the indictment. 7 On February 9, 2004, Moore then filed suit in the United States District Court 8 for the Northern District of New York against, principally,4 9 Deputies Andreno and Palmer, asserting claims under 42 U.S.C. §§ 10 1981, 1983, 1985, and state law. 11 is that the Deputies entry into his study and seizure of his 12 drugs violated the Fourth Amendment to the United States 13 Constitution. 14 Deputies entry into his home; he contests only the narrower, and 15 more nettlesome, question of their entry into and search of his 16 study. 17 (O Connor, J., concurring). 18 The gravamen of his complaint Moore does not dispute the legality of the Cf. United States v. Karo, 468 U.S. 705, 726 (1984) Defendants Andreno and Palmer moved for summary judgment, 19 arguing in the alternative that their search of the study was not 20 unconstitutional or, if it was, that they were nevertheless 1 might be in the medical bag -- did she discover the drugs. 1 2 3 4 4 Moore also named as defendants the County of Delaware, its Sheriff Thomas Mills, and Ruth Sines. The district court dismissed his claims against those defendants, and he has not appealed. -5- 1 entitled to qualified immunity. 2 The district court (Thomas J. McAvoy, Judge) first 3 considered whether Moore had properly alleged a constitutional 4 violation. 5 or apparent authority to consent to a search of the study, or 6 whether other exigent circumstances justified the search. 7 district court noted that [a] third party may validly grant the 8 requisite consent if she has joint access or control of the 9 property for most purposes, Moore v. Andreno, No. 3:05-cv-0175, 10 2006 WL 2008712, at *3 (N.D.N.Y. July 17, 2006), and acknowledged 11 that generally when co-occupants are residing together not as 12 mere roommates, but as part of an intimate relationship, social 13 expectations are that the co-occupants of the home enjoy full 14 access to the entire home, id. at *6. 15 nevertheless concluded that a fair-minded trier of fact could 16 reasonably conclude that [Moore] maintained exclusive control 17 over the study and that Sines did not have actual, apparent, or 18 implied authority to consent to entry into that room. 19 *7. 20 could not justify the Deputies entry into the study. 21 Sines had complained to the Sheriff s Department of possible 22 domestic violence, her allegations, the district court explained, 23 were stale: they pertained to conduct that occurred several days 24 earlier. . . . There was nothing urgent or imminent. The district court inquired whether Sines had actual The The district court Id. at The district court likewise held that exigent circumstances -6- Although Id. at 1 *10. 2 established a colorable claim of a constitutional violation. 3 4 The district court therefore held that Moore had Id. at *7. The district court next considered whether the Deputies were 5 entitled to qualified immunity, and denied it. The district 6 court held that [i]t was clearly established at all times 7 relevant hereto that third-party consent is valid only under 8 certain, well-defined circumstances. 9 extended discussion, the district court also held that no Id. at *8. Without 10 reasonable officer could have believed that exigent circumstances 11 justified the search. 12 13 Id. at *11. The Deputies appealed. DISCUSSION The Deputies argue that the district court misapplied the 14 law governing third-party consent searches and searches 15 predicated upon exigent circumstances. 16 contend that the lower court erred when it concluded that the 17 Deputies could not reasonably have believed that Sines had the 18 authority to enter into [Moore s] study. 19 Second, they liken their behavior to that of the officers in 20 United States v. Miller, 430 F.3d 93 (2d Cir. 2005), who believed 21 that the area they searched harbored an individual posing a 22 danger to others on the scene; on the basis of this comparison, 23 they urge us to reverse the district court s conclusion that 24 exigent circumstances did not justify the search of Moore s -7- First, the Deputies Appellants Br. at 20. 1 2 study. The Deputies also argue that the district court improperly 3 denied them qualified immunity. 4 Moore s study was unconstitutional, they say, it was not so 5 egregious a constitutional violation that reasonable minds could 6 not differ as to its putative legality, especially in light of 7 the confusion in the law surrounding the scope of co-occupants 8 authority to consent to searches of shared premises. 9 Whether or not the search of As a general rule, the denial of summary judgment is not 10 immediately appealable. 11 collateral order doctrine, however, [we will review] the denial 12 of a qualified-immunity-based motion for summary judgment . . . 13 to the extent that the district court has denied the motion as a 14 matter of law. 15 F.3d 29, 38 (2d Cir. 2003). 16 however, the plaintiff here has not filed a statement of material 17 facts, and so, like the district court, we are unable to accept 18 his facts for purposes of deciding whether the Deputies may 19 properly invoke qualified immunity. 20 86, 91 (2d Cir. 1996) (permitting immediate appeal when 21 defendants accepted plaintiff s version of the facts). 22 See 28 U.S.C. § 1291. Under the O Bert ex rel. Estate of O Bert v. Vargo, 331 Unlike in most such appeals, Cf. Salim v. Proulx, 93 F.3d Nevertheless, our appellate jurisdiction over this case is 23 not in doubt. The district court s holding that the law 24 governing third-party consent searches was clearly established is -8- 1 a conclusion of law and is thus immediately appealable. See 2 Proulx, 93 F.3d at 89 (noting that the collateral order rule is 3 easy to apply when a defendant challenges a denial of qualified 4 immunity on the argument that the district court erred in ruling 5 that the law the defendant is alleged to have violated was 6 clearly established ). 7 question, the district court s conclusion that it cannot be said 8 that the Deputies acted reasonably under the circumstances is 9 also immediately appealable. Moreover, while we think it a closer Moore, 2006 WL 2008712, at *9. The 10 district court s determination on that score did not require 11 resolution of disputed facts; rather, the district court came to 12 its decision on the basis of the uncontroverted, albeit one- 13 sided, record before it. 14 failure to oppose the defendants motion, the only version of 15 facts that the court had before it -- and therefore the 16 undisputed version of the facts -- was that proffered by the 17 defendants. 18 19 20 21 22 23 24 25 26 27 28 29 In light of the plaintiff s counsel s And so, we now turn to the inquiry into the merits of a qualified immunity defense: The first step in a qualified immunity inquiry is to determine whether the alleged facts demonstrate that a defendant violated a constitutional right. If the allegations show that a defendant violated a constitutional right, the next step is to determine whether that right was clearly established at the time of the challenged action -that is, whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. A defendant will be entitled to qualified immunity if either (1) his actions did not violate clearly -9- 1 2 3 4 5 established law or (2) it was objectively reasonable for him to believe that his actions did not violate clearly established law. Iqbal v. Hasty, 490 F.3d 143, 152 (2d Cir. 2007) (citations 6 omitted) (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)).5 7 We address these steps in order, beginning with the question of 8 whether the Deputies conduct, as alleged, violated a 9 constitutional right. We review the district court s conclusions 10 de novo. Savino v. City of New York, 331 F.3d 63, 71 (2d Cir. 11 2003). 12 I. The Constitutional Violation 13 A. Third-Party Consent 14 The Fourth Amendment forbids unreasonable searches and 15 seizures. 16 intrusion into the lives of private citizens is made up of an 17 interlacing web of standards and rules. 18 balance the nature and quality of the intrusion on the 19 individual s . . . interests against the importance of the 20 governmental interests alleged to justify the intrusion, United 21 States v. Place, 462 U.S. 696, 703 (1983), under the totality of 1 2 3 4 5 6 7 8 This constitutional bulwark against government 5 For instance, [w]e must Despite continued criticism of this rigid order of battle, see Scott v. Harris, 127 S. Ct. 1769, 1774 n.4 (2007) (internal quotation marks omitted), unless and until the Supreme Court heeds the plea to overrule Saucier, we will continue to ask first whether a constitutional violation has occurred and only then ask whether defendants are nevertheless entitled to qualified immunity. Cf. Pierre N. Leval, Judging Under the Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 1275 (2006). -10- 1 the circumstances, United States v. Knights, 534 U.S. 112, 118 2 (2001) (internal quotation marks omitted). 3 has also admonished that a warrantless search is per se 4 unreasonable . . . subject only to a few specifically established 5 and well-delineated exceptions. 6 U.S. 218, 219 (1973) (omission in original) (internal quotation 7 marks omitted). 8 9 Yet the Supreme Court Schneckloth v. Bustamonte, 412 In United States v. Matlock, the Supreme Court explicated one such well-delineated exception: that pertaining to 10 search[es] of property, without warrant and without probable 11 cause, but with proper consent voluntarily given. 12 165-66 (1974). 13 the Court has explained, 14 15 16 17 18 19 20 21 22 415 U.S. 164, Such consent may be given by a third party. As the authority which justifies the third-party consent . . . [rests on] mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right . . . . Id. at 171 n.7. We have refined the Matlock rule, holding that a third party 23 has authority to consent to a search of a home when that person 24 (1) has access to the area searched and (2) has either (a) common 25 authority over the area, (b) a substantial interest in the area, 26 or (c) permission to gain access to the area. 27 Davis, 967 F.2d 84, 87 (2d Cir. 1992); see also United States v. -11- United States v. 1 Gradowski, 502 F.2d 563, 564 (2d Cir. 1974) (per curiam).6 2 Despite the stringency of these rules concerning third-party 3 consent searches, we also ask whether a police officer s 4 objectively reasonable belief that he has obtained consent, even 5 if in fact he has not, renders a search constitutional. 6 Illinois v. Rodriguez, 497 U.S. 177, 188 (1990) (holding a search 7 constitutional when the facts available to the officer[s] . . . 8 [would] warrant a man of reasonable caution in the belief that 9 the consenting party had authority over the premises (internal 10 quotation marks omitted)); see also Florida v. Jimeno, 500 U.S. 11 248, 249 (1991). 12 authority to consent to a search of a particular area, he still 13 may have apparent authority to consent to the search. 14 United States v. Buckner, 473 F.3d 551, 555 (4th Cir. 2007). 15 However, the Rodriguez apparent authority rule applies [only] to 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 6 See That is, even if a third party lacks actual See, e.g., Another refinement of Matlock is found in United States v. Groves. See 470 F.3d 311, 319 (7th Cir. 2006) (noting that factors indicative of third party s authority include (1) possession of a key to the premises; (2) a person s admission that she lives at the residence in question; (3) possession of a driver s license listing the residence as the driver s legal address; (4) receiving mail and bills at that residence; (5) keeping clothing at the residence; (6) having one s children reside at that address; (7) keeping personal belongings such as a diary or a pet at that residence; (8) performing household chores at that residence; (9) being on the lease for the premises and/or paying rent; and (10) being allowed into the residence when the owner is not present (citations omitted)); see also 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 8.3(a), at 148 n.22 (4th ed. 2004) ( The Matlock formulation is not a model of clarity. ). -12- 1 mistakes of fact [and] not mistakes of law. 4 Wayne R. LaFave, 2 Search and Seizure: A Treatise on the Fourth Amendment § 8.3(g), 3 at 175 (4th ed. 2004); see, e.g., United States v. Brown, 961 4 F.2d 1039, 1041 (2d Cir. 1992) (per curiam) ( Rodriguez would not 5 validate, however, a search premised upon an erroneous view of 6 the law. 7 landladies are generally authorized to consent to a search of a 8 tenant s premises could not provide the authorization necessary 9 for a warrantless search. (citation omitted)); see also Koch v. 10 Town of Brattleboro, 287 F.3d 162, 167 & nn.3-4 (2d Cir. 2002). 11 Such, then, was the state of the law when Deputies Andreno For example, an investigator s erroneous belief that 12 and Palmer accompanied Sines into Moore s study, permitted her to 13 forage in his desk and closet for her belongings, and discovered 14 the drugs. 15 Georgia v. Randolph, 547 U.S. 103 (2006). 16 held that a search conducted on the basis of one co-tenant s 17 consent is unreasonable as to a physically present and objecting 18 co-tenant. 19 emphasized that the reasonableness of a consent search is 20 informed by widely shared social expectations. Id. at 111. 21 example, [a] person on the scene who identifies himself, say, as 22 a landlord or a hotel manager calls up no customary understanding 23 of authority to admit guests without the consent of the current 24 occupant. Four years later, however, the Supreme Court decided Id. at 120. In Randolph, the Court In doing so, however, Randolph For Id. at 112; see also id. at 111 ( When someone comes -13- 1 to the door of a domestic dwelling with a baby at her hip, . . . 2 she shows that she belongs there, and that fact standing alone is 3 enough to tell a law enforcement officer or any other visitor 4 that if she occupies the place along with others, she probably 5 lives there subject to the assumption tenants usually make about 6 their common authority when they share quarters. ). 7 thus subtly elided the existing distinction between a third 8 party s actual authority to consent (i.e., Matlock) and his 9 apparent authority to consent (i.e., Rodriguez). The Court Cf. id. at 112 10 (noting an instance in which even a person clearly belonging on 11 premises as an occupant may lack any perceived authority to 12 consent (emphasis added)). 13 While the ramifications of Randolph for the Davis rule are 14 not clear, we need not strive to discern them. Under either 15 Davis or Randolph, we see no basis to disturb the district 16 court s conclusion that Sines lacked sufficient actual authority 17 to consent to the Deputies search of Moore s study. 18 under Davis, the law in effect at the time of the search, Sines 19 lacked actual authority to consent to the search of Moore s study 20 because, though she had obtained physical access to the room by 21 the time the Deputies arrived, she did not have control over the 22 premises. 23 that a third party has authority to consent to a search of an 24 area satisfy a conjunctive test: the third party must have both First, Davis reads Matlock to require that one who asserts -14- 1 access to and some measure of control (or right to exert control) 2 over the area. 3 v. Whitfield, 939 F.2d 1071, 1074-75 (D.C. Cir. 1991) 4 (interpreting Matlock as asking whether a third party has access 5 to and makes mutual use of an area). 6 Rith, 164 F.3d 1323, 1329 (10th Cir. 1999) ( [T]he . . . test is 7 disjunctive: a third party has authority to consent to a search 8 of property if that third party has either (1) mutual use of the 9 property by virtue of joint access, or (2) control for most 10 See Davis, 967 F.2d at 86-87; cf. United States But see United States v. purposes over it. ). 11 As a preliminary matter, we note that no case in this 12 circuit has delimited the requisite access necessary to satisfy 13 the first prong of the Davis test. 14 Glastonbury, 348 F.3d 48, 53 (2d Cir. 2003). 15 case, it is arguable whether Sines possessed the requisite access 16 to Moore s study. 17 arrived, she had already cut the locks on the study door and 18 therefore had physical access to the room. 19 Sines s access was acquired by force, and we stated in Ehrlich 20 that we have never adopted as the clear law of this circuit 21 [the] view that access must mean physical access and not legal 22 access. 23 clear precedential guidance . . . on . . . whether some amount 24 of physical force is permissible under the access prong of Ehrlich v. Town of In the instant On the one hand, by the time the Deputies On the other hand, Id. at 60; see also id. at 54 (noting our lack of -15- 1 Davis ). 2 may have lacked legal access. 3 the access requirement to be satisfied when the party who 4 consented to the search had a key to the searched area, see 5 United States v. Buettner-Janusch, 646 F.2d 759, 765 (2d Cir. 6 1981), or was the owner of the searched container and could get 7 into [it] whenever he wanted despite not having the key, see 8 Davis, 967 F.2d at 87 n.3. 9 under which Sines acted. 10 Thus, while she had physical access to the study, Sines In other cases, we have found These were not the circumstances Regardless of whether Sines s forced access to the study was 11 enough to satisfy the first prong of Davis, she lacked authority 12 to consent to the search because she failed to satisfy the second 13 prong: Sines did not have any real measure of control over the 14 study. 15 and Moore were not married and did not share ownership of the 16 house. 17 possession of the trunk in his bedroom, coupled with his ready 18 access to it, indicate that, at the very least, he retained 19 common authority over it. ); see also United States v. Backus, 20 349 F.3d 1298, 1304 (11th Cir. 2003) (holding that an estranged 21 wife who was a domestic violence victim and co-owner of a home 22 could consent to a search even though her husband had changed the 23 locks); United States v. Duran, 957 F.2d 499, 505 (7th Cir. 1992) 24 ( [A] spouse presumptively has authority to consent to a search First, she had no common authority over the area as she See Davis, 967 F.2d at 87 ( Cleare s ownership and actual -16- 1 of all areas . . . . ); United States v. Brannan, 898 F.2d 107, 2 108 (9th Cir. 1990) (affirming a wife s actual authority to 3 consent to a search of her home, despite the fact that her 4 husband had changed the locks, when she had left the home due to 5 fear of her husband); United States v. Long, 524 F.2d 660, 661 6 (9th Cir. 1975) (same). 7 Second, Sines did not have a substantial interest in the 8 study, as required by Davis. Her only interest in that room came 9 from her personal belief that some of her belongings were being 10 kept there. Sines s intuition, standing alone, did not give her 11 a substantial interest in the study. 12 circuit has yet defined what constitutes a substantial interest 13 for purposes of the Davis test, the Supreme Court has stated that 14 15 16 17 18 19 20 21 22 23 24 [c]ommon authority is . . . not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched. While no case in this 25 Matlock, 415 U.S. at 171 n.7 (citations omitted). 26 inconsistent with these principles to define substantial 27 interest in terms of a property interest alone, particularly in 28 a case in which the third party lacked common authority and joint 29 access, and in which the property interest itself was purely -17- It would be 1 speculative.7 2 In Davis, the court determined that Cleare, the consenting 3 party, had a substantial interest in the searched container based 4 on the fact that it was his trunk and he kept personal items of 5 some importance in it. 6 Cleare s property interest in the trunk and in the items 7 contained therein -- and consistent with the spirit of Matlock -- 8 the elements of mutual use, joint access, control, and assumption 9 of risk were also present: 967 F.2d at 87. But in addition to 10 11 12 13 14 15 16 17 18 19 20 [Cleare] testified that he owned the footlocker, that he could open it at any time he wished if [he] had to, and that he kept various personal items in it, including photographs of present and former girlfriends. Cleare also testified that Content never asked him not to look inside the containers that Content had placed in the footlocker, and that nothing could have stopped him from inspecting them. He added that Content never forbade him to show the footlocker or its contents to others. Id. at 86 (alteration in original) (footnote omitted). 21 do not mean to say that all of these factors must be present for 22 the substantial interest requirement to be met, the fact that 23 none of them was present in this case strongly indicates that 24 Sines did not have a substantial interest in Moore s study. While we 25 Finally, Sines did not have permission to gain access to the 26 searched area, as Moore expressly forbade her to enter the study. 27 See Davis, 967 F.2d at 86 (finding valid consent when the 1 2 3 7 There is no evidence that Sines s personal property was actually being kept in the study; she was unable to find the missing items during her search. -18- 1 consenting party was never asked not to look inside the searched 2 containers and never forbidden to show them to others); cf. 3 United States v. Zapata-Tamallo, 833 F.2d 25, 27 (2d Cir. 1987) 4 (per curiam) (concluding that a host may consent to a search of 5 his guest s bag when the guest failed to show that the bag was 6 obviously his ); Buettner-Janusch, 646 F.2d at 765 ( [T]o 7 perform his laboratory duties, Macris was authorized to enter any 8 part of the laboratory and to open any jars of chemicals found 9 there. ); United States v. Perez, 948 F. Supp. 1191, 1200-01 10 (S.D.N.Y. 1996) (noting that the defendant never prohibited his 11 father from examining the contents of the storage bins kept in 12 the closet and the armoire of [his] bedroom ). 13 satisfy both parts of the Davis test, Sines was without authority 14 to consent to a search of the study, and the Deputies therefore 15 cannot rely on consent to argue that the search was reasonable. 16 Under Randolph, the constitutional calculus of determining Having failed to 17 whether the search was unreasonable might be somewhat different. 18 See 547 U.S. at 111 ( [T]he reasonableness of a search is in 19 significant part a function of commonly held understanding about 20 the authority that co-inhabitants may exercise in ways that 21 affect each other s interests. ). 22 understanding of social practices, as Randolph uses that concept, 23 that could have led the officers to believe that Sines, who 24 admitted to the officers that she had broken the locks on Moore s -19- But we see no common 1 study and lacked permission to enter it, had authority to consent 2 to a search of the room. 3 was usual and placed no burden on the police to eliminate the 4 possibility of atypical arrangements, in the absence of reason to 5 doubt that the regular scheme was in place. (emphasis added)). Cf. id. at 112 ( Matlock relied on what 6 A study is commonly thought to be a private place. 7 Lloyd L. Weinreb, Generalities of the Fourth Amendment, 42 U. 8 Chi. L. Rev. 47, 62 (1974) ( [W]ithout special information one 9 [might] suppose that husband and wife have independent authority 10 to admit persons to the living room and the kitchen, and probably 11 to the bathroom and bedroom; neither would have authority to 12 admit persons to the other s study . . . . ). 13 locked the door to his study, see United States v. Andrus, 483 14 F.3d 711, 718 (10th Cir. 2007) ( The inquiry into whether the 15 owner . . . has indicated a subjective expectation of privacy 16 traditionally focuses on whether the subject . . . is physically 17 locked. ); United States v. Kinney, 953 F.2d 863, 866 (4th Cir. 18 1992); United States v. Block, 590 F.2d 535, 537 (4th Cir. 1978),8 19 and refused Sines permission to enter, see Rith, 164 F.3d at 1331 20 (noting that an agreement or understanding between the defendant 21 and the third party that the latter must have permission to enter 1 2 3 4 5 8 See Moore, moreover, The presence of a lock is not dispositive in all cases. It is not certain that, had Moore locked his study only after his altercation with Sines, he could have terminated any preexisting authority on her part to consent to its search. See, e.g., Brannan, 898 F.2d at 108; Long, 524 F.2d at 661. -20- 1 2 the defendant s room would vitiate consent). As Chief Justice Roberts has explained, at a bare minimum, 3 a person [who] wants to ensure that his possessions will be 4 subject to a consent search only due to his own consent, . . . 5 [may] place these items in an area over which others do not share 6 access and control, [like] . . . a private room. 7 U.S. at 135 (Roberts, C.J., dissenting) (third emphasis added); 8 United States v. Morning, 64 F.3d 531, 536 (9th Cir. 1995) ( A 9 defendant cannot expect sole exclusionary authority unless he . . 10 . has a special and private space within the joint residence. ), 11 abrogated by Randolph, 547 U.S. at 108 n.1; Zapata-Tamallo, 833 12 F.2d at 27; United States v. Robinson, 479 F.2d 300, 302 (7th 13 Cir. 1973) (upholding consent when the defendant [did not] claim 14 exclusive dominion and control over a specific room or portion of 15 a room or particular area of the apartment ). 16 what Moore did, and his ability to do so is unaffected by his 17 decision otherwise to share his home with another. 18 Randolph, 547 That is precisely With these social expectations operating in the background, 19 and with the specific knowledge that Sines was not permitted to 20 enter the study and had used force to gain access, the Deputies 21 could not validate their warrantless search of Moore s study on 22 the basis of consent. 23 B. Exigent Circumstances 24 The Deputies also argue that their entry into the study was -21- 1 justified because they worried that Moore might arrive and wish 2 to (or already be on the premises prepared to) do violence to 3 Sines. 4 a situation may insulate a warrantless search from constitutional 5 attack if law enforcement agents were confronted with an urgent 6 need to render aid or take action. 7 916 F.2d 766, 769 (2d Cir. 1990) (en banc) (quoting Dorman v. 8 United States, 435 F.2d 385, 391 (D.C. Cir. 1970) (en banc)). 9 See generally Brigham City v. Stuart, 126 S. Ct. 1943, 1947 We need not tarry long on this argument. The exigency of United States v. McDonald, 10 (2006) ( One exigency obviating the requirement of a warrant is 11 the need to assist persons who are seriously injured or 12 threatened with such injury. ). 13 urgency of the officers need depends on six factors: 14 15 16 17 18 19 20 21 22 23 24 We have explained that the (1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect is reasonably believed to be armed ; (3) a clear showing of probable cause . . . to believe that the suspect committed the crime ; (4) strong reason to believe that the suspect is in the premises being entered ; (5) a likelihood that the suspect will escape if not swiftly apprehended ; and (6) the peaceful circumstances of the entry. McDonald, 916 F.2d at 769-70 (omission in original). 25 Considering the situation confronted by Deputies Andreno and 26 Palmer in light of these factors (adapted to the circumstances of 27 this case), we do not think that the Deputies had an urgent 28 need to enter the study and thus that exigent circumstances 29 could justify the search. The Deputies entered Moore s home -22- 1 peacefully and Sines told them that Moore was not there. 2 Tierney v. Davidson, 133 F.3d 189, 197 (2d Cir. 1998) ( It was 3 reasonable for Davidson to believe that someone inside had been 4 injured or was in danger, that both antagonists remained in the 5 house, and that this situation satisfied the exigent 6 circumstances exception. (emphasis added)). 7 with Sines for quite a while and at no time did they instruct 8 Sines to hurry, nor did they look elsewhere in the home for 9 Moore. 10 Cf. The Deputies stayed Moreover, if the Deputies had suspected that Moore might be 11 in the house, they would only have been justified in conducting a 12 protective sweep of those spaces where [he] m[ight] [have] 13 be[en] found. 14 There is no suggestion that anyone thought Moore might have 15 concealed himself in the erstwhile locked study. Maryland v. Buie, 494 U.S. 325, 335 (1990). 16 C. Conclusion 17 For the foregoing reasons, we think that the Deputies 18 search of Moore s study was unreasonable and violated the Fourth 19 Amendment. 20 Deputies search -- both because she did not have the requisite 21 access to and control over the study and because the particulars 22 of her relationship with Moore were not such that society would 23 expect her to have common authority over the study. 24 the Deputies had no urgent need to enter the study, as Moore was Sines lacked the authority to consent to the -23- Moreover, 1 not yet on the premises, and there was no indication that his 2 arrival was imminent. 3 II. Lack of a Clearly Established Right 4 We turn next to the Deputies argument that, even if they 5 violated Moore s constitutional rights, they are entitled to 6 qualified immunity because the law regarding third-party consent 7 to access in a shared dwelling was not clearly established at the 8 time of the search. 9 have been violated on the facts alleged, Saucier, 533 U.S. at If, as here, a constitutional right would 10 200, the next inquiry is whether the right was clearly 11 established, id. 12 relevant, dispositive inquiry in determining whether a right is 13 clearly established is whether it would be clear to a reasonable 14 officer that his conduct was unlawful in the situation he 15 confronted. 16 140, 148-49 (2d Cir. 2006). 17 incompetent or those who knowingly violate the law -- those who 18 are not worthy of the mantle of office -- who are precluded from 19 claiming the protection of qualified immunity. 20 475 U.S. 335, 341 (1986). The Supreme Court has clarified that [t]he Id. at 202; see also Demoret v. Zegarelli, 451 F.3d Normally, it is only the plainly Malley v. Briggs, 21 The district court concluded that the law governing consent 22 searches was clearly established at all times relevant hereto. 23 Moore, 2006 WL 2008712, at *8. 24 officers could only conclude that [neither consent nor] exigent It further held that reasonable -24- 1 circumstances justified the Deputies search of Moore s study. 2 Id. at *11. 3 We disagree. For constitutional suits like this one to deter misconduct, 4 without also deterring citizens from taking jobs in the public 5 sector, police officers must be able to understand the legal 6 constraints on their conduct. 7 Union Free Sch. Dist., 365 F.3d 107, 129 (2d Cir. 2004) ( The 8 compromise between remedy and immunity that we have chosen turns 9 critically upon notice. ). See Back v. Hastings on Hudson See generally Hope v. Peltzer, 536 10 U.S. 730, 739-40 (2002). 11 was clearly established that a warrantless search of an area is 12 unconstitutional absent probable cause or the voluntary consent 13 of a person with authority to consent to such a search. 14 clearly established, a right must have been recognized in a 15 particularized rather than a general sense. 16 F.3d 57, 81 (2d Cir. 2004). 17 a lawyer would learn or intuit from researching case law, but 18 what a reasonable person in the defendant s position should know 19 about the constitutionality of the conduct. 20 Wyandanch Union Free Sch. Dist., 187 F.3d 272, 278 (2d Cir. 21 1999). 22 Thus, it is not enough to say that it To be Sira v. Morton, 380 Indeed, [t]he question is not what McCullough v. The law applying and interpreting Davis was not clearly 23 established at the time of the search. 24 court has never adequately defined the meaning of access under -25- As we noted earlier, this 1 Davis. See Ehrlich, 348 F.3d at 53. Nor have we ever passed on 2 how substantial an interest must be to vest a third party with 3 authority to consent to a search over an area in which she has 4 such an interest. 5 we would use to measure substantiality, for it surely cannot 6 depend on the presence or absence of a property right in an area, 7 see Randolph, 547 U.S. at 110-11. 8 between access and permission to gain access is also obscure. 9 For instance, the dictionary definition of access given by the And, indeed, it is not even clear what metric Finally, the difference 10 district court includes permission to approach. See Webster s 11 Third International Dictionary 11 (1981) (defining access to 12 include permission, liberty, or ability to enter ). 13 Thus, it was not clear at the time of the search whether the 14 physical access Sines gained by forcibly cutting off the locks to 15 the study satisfied the access requirement of Davis. 16 that Davis distinguishes between access and permission to gain 17 access -- part 2(c) of the test -- could suggest that even though 18 Sines s access was improperly obtained, it nevertheless 19 constituted access within the meaning of the first prong. 20 However, because we have never decided whether physical force is 21 permissible under the access prong, Ehrlich, 348 F.3d at 54, a 22 reasonable officer could not be sure that Sines did not have the 23 requisite access to the study, see also id. at 60 ( Since the 24 issue before us is the existence of qualified immunity, we need -26- The fact 1 not delimit the specific boundaries of the access requirement. ). 2 Moreover, based on the ambiguity in the law, an officer could 3 have reasonably believed that Sines s suspicion that Moore had 4 hidden her personal effects in his study was sufficient to 5 constitute a substantial interest that could validate her 6 consent. 7 requires is reasonable, . . . the officer is entitled to the 8 immunity defense. And [i]f the officer s mistake as to what the law Saucier, 533 U.S. at 205. 9 In concluding that, for purposes of qualified immunity, the 10 Deputies could have reasonably believed that Sines had authority 11 to consent to the search, we note that this analysis is distinct 12 from that in Part I.A., in which we concluded that, for purposes 13 of determining whether there had been a constitutional violation, 14 common understanding could not have supported a belief that Sines 15 had authority to consent. 16 whether the search itself was unreasonable, in violation of the 17 Fourth Amendment (i.e., the first part of the qualified immunity 18 test), based on common social understanding as clarified in 19 Randolph; the former concerns the question of whether the 20 officers belief in the lawfulness of their conduct was 21 unreasonable, thereby precluding a qualified immunity defense 22 (i.e., the second part of the qualified immunity test), based on 23 the state of the existing law, which of course pre-dated 24 Randolph. The latter concerns the question of In Anderson v. Creighton, a warrantless search case, -27- 1 the Supreme Court highlighted the distinction between these two 2 analyses and noted that it was possible for officers to have 3 conducted an unreasonable search based on a reasonable mistaken 4 belief. 5 possible to say that one reasonably acted unreasonably ); see 6 also Saucier, 533 U.S. at 202 ( In Anderson, . . . we rejected 7 the argument that there is no distinction between the 8 reasonableness standard for warrantless searches and the 9 qualified immunity inquiry. ). 10 483 U.S. 635, 643-44 (1987) (suggesting that it is Thus, in this case, we conclude that the Deputies acted 11 unreasonably when they searched the study because no . . . 12 authority [to consent] could sensibly be suspected. 13 547 U.S. at 112. 14 was unclear, the Deputies could reasonably have believed that 15 Sines had access and a substantial interest and therefore had 16 authority to consent to the search. 17 ( We acknowledged that there was some surface appeal to the 18 argument that, because the Fourth Amendment s guarantee was a 19 right to be free from unreasonable searches and seizures, it 20 would be inconsistent to conclude that an officer who acted 21 unreasonably under the constitutional standard nevertheless was 22 entitled to immunity because he reasonably acted unreasonably. 23 This superficial similarity, however, could not overcome . . . 24 our history of applying qualified immunity analysis to Fourth Randolph, However, we also conclude that because the law -28- Cf. Saucier, 533 U.S. at 203 1 Amendment claims against officers. (internal quotation marks and 2 citation omitted)). 3 Because we believe that, at the time of the search, the law 4 was not clearly established as to whether Sines had authority to 5 consent to a search of the study, Deputies Andreno and Palmer are 6 entitled to qualified immunity. 7 decide whether the law governing searches purportedly justified 8 by the exigency of the circumstances was clearly established at 9 the time the Deputies searched Moore s study. We therefore do not need to 10 CONCLUSION 11 For the foregoing reasons, the judgment of the district 12 court is REVERSED. The case is REMANDED to the district court so 13 that it may enter summary judgment in defendants favor. 14 -29-
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