Casella v. Borders , 404 F. App'x 800 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-2160
JESSIE M. CASELLA,
Plaintiff - Appellant,
v.
MATT BORDERS, individually and in his official capacity;
UNNAMED TOWN OF CULPEPER POLICE OFFICERS 1 - 100,
individually and in their official capacity; SCOTT H.
BARLOW, Chief of Police in his official capacity; TOWN OF
CULPEPER POLICE DEPARTMENT,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon,
Senior District Judge. (3:09-cv-00019-nkm-bwc)
Argued: September 24, 2010 Decided: December 15, 2010
Before SHEDD and KEENAN, Circuit Judges, and Robert J. CONRAD,
Jr., Chief United States District Judge for the Western District
of North Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
Emmett Franklin Robinson, Sr., LAW OFFICE OF E. F. ROBINSON,
PLLC, Lake Ridge, Virginia, for Appellant. Jennifer Lee
Parrish, PARRISH, HOUCK & SNEAD, PLC, Fredericksburg, Virginia;
Richard Hustis Milnor, ZUNKA, MILNOR, CARTER & INIGO, LTD.,
Charlottesville, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Jessie Casella lent her boyfriend a cellular phone
containing images of her nude body. What she could not foresee
was that law enforcement officers would eventually view these
images in an act of voyeurism. Casella challenges these
officers’ actions under 42 U.S.C. § 1983 and the Fourth
Amendment to the United States Constitution. The district court
found Casella lacked a reasonable expectation of privacy in the
contents of the cellular phone because she lacked control or
dominion over the phone when officers seized it from her
boyfriend. We agree, and accordingly, we affirm.
I.
During the early morning hours of March 30, 2008, police
offers of the Town of Culpeper, Virginia, arrested Casella’s
then-boyfriend, Nathan Newhard. The officers searched Newhard
incident to his arrest, and an unnamed officer seized the
cellular phone he possessed. Casella had lent the phone to
Newhard on February 1, 2008, “for his personal use.” This
unnamed officer opened the cellular phone’s images folder, where
he discovered nude images of Casella and Newhard in “sexually
compromising positions.”
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Sergeant Matt Borders eventually gained possession of the
phone. Casella alleges Borders then announced over the Town of
Culpeper radio system to several additional unnamed officers,
county deputies, and members of the public “that the private
pictures were available for their viewing and enjoyment.” She
further claims that several officers who were unassociated with
Newhard’s arrest, as well as an acquaintance unassociated with
the police department, traveled to police headquarters and
viewed the pictures. Casella asserts she never gave her consent
to Newhard or any other party to share or transmit the contents
of the phone. She claims that as a result of these actions, she
has suffered fear and anxiety over widespread dispersion of the
images, leading to depression and other medical issues.
Casella and Newhard filed separate actions against the Town
of Culpeper Police Department (“Town”) and several of its
officers, including Police Chief Scott Barlow, Sergeant Matt
Borders, and Unnamed Town of Culpeper Police Officers 1-100.
Casella alleged intentional infliction of emotional distress and
violations of 42 U.S.C. § 1983. The district court dismissed
the § 1983 claims and declined to exercise supplemental
jurisdiction over the state-law claim. Casella appeals the
district court’s dismissal of her § 1983 claims.
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II.
“[I]n order to state a claim under § 1983, a plaintiff must
allege the violation of a right preserved by another federal law
or by the Constitution.” Kendall v. City of Chesapeake, Va.,
174 F.3d 437, 440 (4th Cir. 1999) (citing Baker v. McCollan, 443
U.S. 137, 140, 144 n.3 (1979)). Casella alleges a violation of
her Fourth Amendment rights. 1
“The ‘capacity to claim the protection of the Fourth
Amendment depends . . . upon whether the person who claims the
protection . . . has a legitimate expectation of privacy in the
invaded place.’” United States v. Gray, 491 F.3d 138, 144 (4th
Cir. 2007) (quoting Minnesota v. Carter, 525 U.S. 83, 88
(1998)). To be legitimate, a subjective expectation of privacy
must be objectively reasonable. Id.Where an individual claims an expectation of privacy in
property held by another, this Court has looked at “whether that
person claims an ownership or possessory interest in the
property, and whether he has established a right or taken
precautions to exclude others from the property.” United States
1
The district court, presumably out of caution in facing a
confusingly worded Amended Complaint, addressed Casella’s claims
under both the Fourth Amendment and Fourteenth Amendment
substantive due process. Casella’s counsel made clear at oral
argument, however, that she only appeals the district court’s
judgment regarding her assertion of her Fourth Amendment rights.
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v. Rusher, 966 F.2d 868, 875 (4th Cir. 1992) (citing Rawlings v.
Kentucky, 448 U.S. 98, 105-06 (1980)). “A person who is
aggrieved by an illegal search and seizure . . . of a third
person’s . . . property has not had any of his Fourth Amendment
rights infringed . . . .” Rakas v. Illinois, 439 U.S. 128, 134
(1978).
III.
We review de novo a district court’s decision to grant a
motion to dismiss. Novell, Inc. v. Microsoft Corp., 505 F.3d
302, 307 (4th Cir. 2007).
The parties do not dispute whether Casella had a subjective
expectation of privacy in the contents of the cellular phone.
They both agree she did. The parties differ, however, as to
whether Casella’s expectation of privacy was reasonable once she
relinquished physical control of it.
Casella cites an unpublished Tenth Circuit case, Donohue v.
Hoey, 109 Fed. Appx. 340 (10th Cir. 2004), in support of her
position. In Donohue, a murder victim’s husband sued when
officers shared among one another the nude honeymoon photographs
of his deceased wife. Id. at 348. That court held that the
plaintiff, who had abandoned the photographs in his former home,
had re-established any reasonable expectation of privacy he may
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have lost when officers refused his demand to return the
photographs. Id.Donohue is both non-binding and unpersuasive. Once the
Donohue plaintiff lost a legitimate expectation of privacy in
the photographs by abandoning them in his former home, this
expectation could not be reestablished merely by demanding them
back from the police. After all, by the time police had
possession of the photos, a private investigator working
pursuant to police authority had already retained the negative
images in his own file, and he could have shared the images with
any number of people. Id. at 348. Further, Casella here fails
to allege that she demanded the photographs back, making Donohue
factually inapposite.
More legally on point, this Court addressed in an
unpublished opinion a defendant prisoner’s challenge to the
search of his mail, which officers had seized from a third
party’s residence. United States v. Gallo, No. 87-5151, 1998 WL
46293, at *3 (4th Cir. May 12, 1988). The defendant argued that
the third party held his mail only as a bailee and that, despite
the third party’s actual possession of it, the defendant had a
reasonable expectation of privacy in the containers that were
searched. Id. This Court held that the defendant lacked a
reasonable expectation of privacy. Id. It stated:
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Imprisoned as he was, [the defendant] could not hope
to exercise any control over those locations, and
there is no evidence that he ever had exercised any
control. While [the defendant] undoubtedly hoped and
intended that these areas would not be searched by law
enforcement officers, this has little to do with the
objective reasonable expectation required for
standing. The fact that some of the materials seized
in the search were his property is not determinative.
The fourth amendment inquiry focuses on expectations
of privacy in the location or containers searched, not
[on] property interests in items discovered in the
search.
Id. (citing Rawlings, 448 U.S. at 105-06). While Casella is no
prisoner, the legal principle fits well. Casella alleges no
facts indicating she exercised a right to control the cell phone
or its contents after giving the phone to Newhard. She
“undoubtedly hoped and intended” that the images would not be
viewed by anyone other than Newhard, but hopes and intentions do
not make Fourth Amendment rights.
As the Supreme Court observed in Rakas, “one who owns or
lawfully possesses or controls property will in all likelihood
have a legitimate expectation of privacy by virtue of this right
to exclude.” 439 U.S. at 143 n.12. The Amended Complaint fails
to assert facts from which the Court can infer that Casella,
after she relinquished possession of the phone, had the right or
ability to exclude others from viewing the images stored
therein.
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Casella’s Amended Complaint further fails to allege any
demands or limitations regarding dissemination of the cellular
phone’s contents. Rather, she rests on the allegation that “At
no time did Plaintiff give her consent to Nathan Newhard or any
other party to the transmission or any sharing of the contents
of her cellular telephone.” The mere absence of Casella’s
consent to transmit or share the images, however, does not make
her expectation of privacy in those images reasonable. 2 In
addition, when Newhard was arrested on March 20, 2008, nearly
two months had passed since Casella had lent him the phone,
suggesting she lent the phone to Newhard for an extended period
rather than on a day-to-day basis.
While the officers’ actions as alleged may be
reprehensible, the Fourth Amendment’s scope of protection does
not extend to the Appellant. Casella fails to plead facts from
which it is plausible to conclude that she had a reasonable, and
therefore legitimate, expectation of privacy in the contents of
the cellular phone.
2
Casella attempts to buttress her arguments with facts not
alleged in the Amended Complaint. The Court will not consider
facts not pled, nor will it entertain facts that cannot be
inferred from the bare allegations of the Amended Complaint.
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IV.
For the foregoing reasons, we hold that Casella lacked a
legitimate expectation of privacy in the contents of the
cellular phone. We therefore affirm the district court’s
dismissal of her § 1983 claim.
AFFIRMED
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