Braskett v. Fender et al, No. 3:2011cv01078 - Document 54 (D. Or. 2012)

Court Description: MEMORANDUM OPINION AND ORDER ON MOTION FOR SUMMARY JUDGMENT: The defendants' motion for summary judgment 30 is GRANTED. Signed on 8/3/12 by Magistrate Judge Dennis J. Hubel. (kb)

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

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