Scott v. Wellesley Police ( 1998 )

USCA1 Opinion

      [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]

                 United States Court of Appeals

                     For the First Circuit











No. 98-1280



                        LORENZO Q. SCOTT,



                      Plaintiff, Appellant,



                                v.



               WELLESLEY POLICE DEPARTMENT, ET AL.,



                      Defendants, Appellees.







           APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



            [Hon. Nancy Gertner, U.S. District Judge]







                              Before



                      Selya, Circuit Judge,

                Campbell, Senior Circuit Judge,

                   and Lynch, Circuit Judge.









     Lorenzo Q. Scott on brief pro se.

     Douglas I. Louison, Stephen C. Pfaff, and Merrick and Louisonon brief for appellees.









September 24, 1998















           Per Curiam.  In connection with a rash of burglaries that

    plagued Wellesley, Massachusetts and neighboring communities in

    1994 and 1995, plaintiff Lorenzo Scott was convicted in state

    court of breaking and entering in the nighttime and sentenced

    to a lengthy prison term.  In 1996, he filed the instant

    damages action against four officers of the Wellesley Police

    Department (and the department itself), advancing vague

    allegations of Fourth Amendment violations and other

    improprieties surrounding his arrest and conviction.  From a

    judgment dismissing most of his claims pursuant to Fed. R. Civ.

    P. 12(c) and the remaining ones pursuant to Rule 56, plaintiff

    now appeals.  We affirm.

        Little discussion is required.  Plaintiff's contentions,

    as presented on appeal, reduce to the following three claims:

    that defendant Price violated the Fourth Amendment in

    connection with (1) the pre-arrest search of plaintiff's

    automobile, (2) the post-arrest search of his residence, and

    (3) the post-arrest search of a pawnshop.  The district court

    disposed of each of these allegations at the summary judgment

    stage.  We agree with the court that, to the extent they are

    not barred under Heck v. Humphrey, 512 U.S. 477 (1994),

    plaintiff's claims each fail on the merits.

        The challenge to the car search was not properly raised

    below and so has been waived.  In any event, plaintiff has

    failed to call into question the state court's findings that

    probable cause and exigent circumstances existed.  At a

    minimum, he has failed to establish that the search was so

    unreasonable that qualified immunity would not apply.

    Moreover, while it is undisputed that Price was present at the

    time (along with other officers from Wellesley and elsewhere),

    there is no indication that he participated in the decision to

    unlock the car or otherwise assisted in the search.

        The search warrant for plaintiff's residence was obtained

    on the basis of an affidavit from a Lexington police officer,

    to which Price and others had contributed information.  The

    showing of probable cause made therein was easily sufficient to

    shield defendants from liability.  See, e.g., Malley v. Briggs,

    475 U.S. 335, 344-45 (1986) ("Only where the warrant

    application is so lacking in indicia of probable cause as to

    render official belief in its existence unreasonable ... will

    the shield of immunity be lost.").  The charge that Price

    purposefully contributed false information to the affidavit

    proves unavailing, since it was not advanced in the complaint

    and lacks a proper evidentiary foundation in any event.

        Plaintiff's final claim--that the warrantless search of

    the pawnshop was unlawful--likewise fails as a matter of proof.

    Plaintiff has not adequately called into question Price's

    averment that the pawnshop owner voluntarily turned over the

    jewelry in question to the Lexington police officers.

        Affirmed.