James Turk v. Daniel Comerford , 488 F. App'x 933 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0771n.06
No. 11-3682
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
JAMES TURK; MARY BETH TURK, individually ) Jul 17, 2012
and as mother of WKT and KMT, minors, ) LEONARD GREEN, Clerk
)
Plaintiffs-Appellants, )
)
v. ) On Appeal from the United States
) District Court for the Northern
DANIEL COMERFORD; JASON STASENKO; NICK ) District of Ohio
REXING; MARK ADAMS, individually and in his )
official capacity with the other Cuyahoga County )
Sheriff’s Office, )
)
Defendants-Appellees. )
Before: BOGGS, NORRIS, and KETHLEDGE, Circuit Judges.
BOGGS, Circuit Judge. James and Mary Beth Turk appeal two district-court
decisions granting qualified immunity to officers from an FBI task force who entered and searched
their home. The officers were looking for fugitive John Mattice. Four days earlier, Turk1 had
accompanied Mattice to the scene of a sexual assault that Mattice allegedly committed. According
to the Turks’ complaint and evidence, the officers surrounded the Turks’ home without any
indication that Mattice was with Turk, pushed through his door as he turned the deadbolt, and
searched his house, threatening him with jail time all the while. The Turks filed this § 1983 suit,
alleging that the officers violated their Fourth Amendment rights. Over the course of two summary-
1
“Turk” will refer to James Turk. “Mrs. Turk” will refer to his wife, Mary Beth Turk.
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judgment motions, decided by different judges, the district court held that all of the officers were
entitled to qualified immunity on all of the Turks’ claims. For reasons discussed below, we affirm
the decisions granting qualified immunity to an officer who was not present during the initial entry
and remained with Turk during the subsequent search, and to all officers on the Turks’ claim that
the officers violated their Fourth Amendment rights by entering the curtilage of their home.
However, we reverse the decisions granting qualified immunity on the Turks’ illegal-entry, illegal-
search, and illegal-detention claims, and remand for further proceedings consistent with this opinion.
I
Taken in the light most favorable to the Turks, the facts are as follows. On Friday, February
13, 2009, former police officer James Turk met John Mattice at the intersection of Interstate 480 and
Ridge Road in Cleveland, Ohio. Unbeknownst to Turk,2 who was working as a private investigator
for attorney Ed Heffernan, Cleveland Police had arrested Mattice for rape in October 2008. Worse,
because Mattice missed a scheduled court appearance, a bench warrant for his arrest had been issued.
Turk went with Mattice to 3900 Fulton Court, the scene of the alleged crime, and spoke with a tenant
named Emily.3 On request, he gave Emily one business card with his name, and another with both
his and Heffernan’s. He then asked for, and received, permission to take a photograph of the couch
where the incident took place and left. The entire visit, according to Turk, took approximately ninety
2
Turk allegedly did not learn what Mattice was wanted for until Sunday, February 15 or
Monday, February 16, when he read a newspaper article featuring Mattice as the fugitive of the
week.
3
Emily, apparently, was Mattice’s former girlfriend. It is not clear whether Turk knew this
at the time of his visit.
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seconds. After leaving the scene of the alleged crime, Turk dropped Mattice off in the same place
that he had picked him up earlier and proceeded to Akron on other business.
The Cleveland/Cuyahoga Fugitive/Gang Task Force (Task Force), a group of officers from
various law-enforcement agencies, deputized as federal agents by the FBI, began searching for
Mattice when he failed to appear in court “[o]n or about February 10, 2009.” Because the alleged
rape occurred at 3900 Fulton Court, and 3900 Fulton Court was the address listed on Mattice’s arrest
warrant, Task Force Officers Jason Stasenko and Mark Adams began their search at 3900 Fulton
Court. They learned that Mattice no longer lived at that address, but got Emily’s contact information
from a current resident. Emily and Stasenko spoke several times over the next three days. “[A]t one
point [Emily] indicated that Mattice had grown suspicious that she was helping the police, that she
feared for her safety, and that she no longer believed she could assist [the Task Force] in locating
Mattice.” On February 13, Emily called Stasenko, sounding “panicky . . . scared and intimidated.”
She told Stasenko that Turk and Mattice had come to 3900 Fulton Court while she was there, that
“Turk was pushy, [and] pushed his way into the house,” and that the two men left together in the
same car.4 Stasenko ran Turk’s name through a number of databases. He learned Turk’s home
address and that Turk had been found not guilty of Intimidation in the Cuyahoga County Common
Pleas Court.
On the morning of Tuesday, February 17, Turk’s son was getting ready for school when he
saw a man with a cap, dark clothing, and a gun outside of his window. He told his father that he
4
Turk denies that he was pushy, and claims that he tape recorded his interaction with Emily
to guard against such accusations.
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thought there was a terrorist in the backyard. Turk told his son to get behind him, and walked toward
his daughter’s room. Through his front window, Turk saw cars and men in hats “all over the place.”
Before he could reach his daughter, someone “pounded on the door . . . screaming out pounding on
the windows saying, Mr. Turk, you’re fucking going to jail right now, you’re going to jail, open the
door.” In response to Turk’s asking what was going on, the officer responded: “Open this door right
now, you’re going to jail.” Task Force officers, Turk claimed, were “banging on the front door with
something, a lead pipe, flashlight, [so hard that] things were shaking all over the place.”
Because “the window on the front door [was] shaking,” Turk “went to open the door.” The
front door of Turk’s house is a double door. Only the left-hand door opens—the right-hand door “is
a dummy door.”5 The Task Force officers, however, did not know this and, as Turk “went to open
the [left-hand] door . . . [the officers] tried to force” the right-hand door. Turk began to turn the
deadbolt, but “didn’t get it all the way because . . . somebody shoved the door open in [his] face.”
Indeed, Turk claims, the door splintered because Stasenko forced it open.
Turk’s wife, Mary Beth, corroborated her husband’s account, claiming that “the person
outside the door was yelling open up, open up,” and that “[w]hen [Turk] went to unlatch the deadbolt
he never turned to open, or maybe it was pushed.” She also insisted that she “never opened the front
door,” that “[a]s . . . Turk was manipulating the deadbolt to the front door . . . law enforcement
simply barged/pushed into the foyer area of our home,” and that she said nothing to any Task Force
officer until the officers had entered her home. Stasenko, by contrast, claims that, after he knocked
5
Although it is not entirely clear, it appears from the record that the door Turk opened was
the left–hand door from his perspective, not the officers’.
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on the door and identified himself as a police officer, “Mrs. Turk appeared in the doorway, opened
the door and let [the Task Force] into the foyer. [His] recollection is that she said words to the effect
of ‘come inside, I have neighbors.’”
It is undisputed that Stasenko entered the home first, followed by Officer Mark Adams and
Officer William Chapman.6 Next came Officer Daniel Comerford, who had been in the Turks’
backyard “covering” the back of the house “in the event the fugitive was present and tried to escape.”
Comerford came inside only after Stasenko, already inside the house, called him on the radio.
Officer Nick Rexing, who had been at the side of, and then behind, the house, entered eventually.7
Precisely when he came inside, however, is in dispute: Turk claims that he entered with Stasenko
and Adams,8 Rexing claims that he entered later. Although the officers did have a warrant for
Mattice’s arrest, they did not have a search warrant for Turk’s home.
Turk captured most of what followed on a recording device hidden in his underwear.9
Initially, Turk believed that the officers were associated with city animal control because Stasenko
wore a vest with the initials “APA.”10 Thus, when Stasenko told Turk to put his German Shepherd
6
Turk voluntarily dismissed his claim against Officer Chapman on December 18, 2009.
7
Rexing explained that his task was “to establish a loose perimeter in the event the fugitive
was present, to prevent his escape and protect the safety of officers on the scene.”
8
In his deposition, Turk claimed that he could not remember which other officers entered
with Stasenko. He did testify, however, that Rexing was inside “harassing [his] family” from the
outset.
9
The parties agree that the recording is accurate.
10
APA, Stasenko explained, means “Adult Parole Authority.”
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away, Turk responded: “Oh, I thought you said you were here for the dog.” Mrs. Turk then said: “Go
through the entire house. . . . Get your people out of my front lawn.” Immediately, Turk interjected:
“Wait a minute. Wait a minute. Wait a minute.” Ibid. The following conversation ensued:11
Officer: No, that’s how we do this.
Turk: Wait a minute. Because I work for an investigator.
Officer: You know what?
...
Officer: I’m going to put you in cuffs, you’re going to jail.
Turk: What?
Officer: All right. You were with this guy on Friday. So if you want
to play around with me
Turk: No, no, no, no, no, no, I don’t want to play around.
Mrs. Turk: You know, my kids are here, please.
Officer: Wait a minute.
Mr. Turk: I don’t want to play around, okay.
Officer: You were with him on Friday, right? Don’t lie to me or
you’re going to jail. You understand?
Mr. Turk: On the advice of my attorney - - can I call my attorney?
Officer: You can call your attorney after we’re done with you, okay?
Mrs. Turk: Go through my house - -
Officer: Is he here right now?
Mrs. Turk: No.
Mr. Turk: You cannot (inaudible) house (inaudible). 12
Stasenko grabbed Turk’s wrist and kept him in the foyer area, while other officers “spoke to [Mrs.
Turk] . . . about searching the house.” Turk, at this point, asked his wife to get Heffernan’s phone
number. She did so, and Turk spoke to Heffernan on the phone. Heffernan told him that, unless the
officers produced an arrest warrant, they would have to leave. Turk then gave the phone to Stasenko,
11
The transcript of the recording does not indicate which officer is which.
12
Not once in the transcript does any officer use the name “Mattice.” All references are to
“him,” or “he.”
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who told Heffernan: “I’m letting you know that we’re here - - they gave us consent to search, they’re
cooperating with us, okay. I told him that if he doesn’t cooperate he’s going to go to jail based on
investigative purposes of the Sheriff’s Department.” Stasenko continued:
Sir, all right, I’m just - - I’m doing a courtesy of talking to you. We have a warrant
for [Mattice’s] arrest, okay. If he turns himself in today, great. All right. We don’t
have to bother anymore [sic] people. Your client was with him on Friday, okay.
That’s why we’re here. We have information - - listen. We have information from
other sources that he was with him, okay. This gives us enough to come out here and
talk to him, okay. If he didn’t tell us a lot of stuff that we already know he was going
to go to jail on our investigation and we were going to hold him for at least 72 hours
if we didn’t charge him with obstructing justice or harboring a fugitive, that kind of
thing. Okay. That’s why we’re here now. They gave us consent to search, said he’s
not here, that’s fine, and then they called you. That’s why we’re here. I don’t care
if he’s going to arraignment, I don’t care if he’s, you know - - didn’t go to (inaudible)
99 percent of the time we hear the same thing.13
Turk continued to talk to Stasenko while Stasenko was talking to Heffernan. Turk asked whether
he could finish getting dressed. Stasenko told him no. He asked whether he could walk through his
house. Stasenko told him no. Turk then asked whether he was being detained. Again, Stasenko said
no. Ultimately, after being told again that he would go to jail, Turk agreed to stand in his foyer with
the officers and stopped asking questions.
As Turk, and later Stasenko, spoke to Heffernan, Mrs. Turk grew increasingly agitated,
exclaiming: “Please go search and fucking get out of my house,” “I have a ten year old here,” and
“go through my fucking house and look, okay.”
13
Heffernan told Stasenko that Mattice planned to appear at his scheduled arraignment later
that day.
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Turk’s responses varied. Some of his words indicated that he did not consent to the officers’
search. As Mrs. Turk grew more agitated, he said: “All right, don’t, please talk to me, please talk
to me. . . . She’s upset.” While Stasenko was still on the phone with Heffernan, and when Mrs. Turk
began to lead officers around the house, Turk said: “Beth, wait - - would you wait until he’s - -”
Mrs. Turk cut him off: “Here, they’ve already started, I’m giving them (inaudible) to get them out
of here. Okay. Come on.”
But Turk also made comments suggesting that he would allow officers to search. He told
Officer Stasenko: “We’re going to be very cooperative,” and in response to an officer’s telling him
that his wife consented to the Task Force’s “tak[ing] a look, [to] make sure [Mattice is] not here,”
said: “that’s fine.” He also offered the officers coffee, and said to his wife: “Beth, they’re just doing
their job, they’re mistaken.”
After Stasenko finished talking with Heffernan, he and Officer Comerford began to ask Turk
about his interaction with Mattice. Turk refused to answer, claiming that he could not remember
what he did the Friday before. The officers continued to threaten Turk with jail time, telling him:
“County jail is a great place to remember things.” The officers also tried softer tactics, stating: “if
you would just give us the information that we need, we’d leave and your wife would calm down,
your house wouldn’t be upset like this.” But all to no avail. Turk would not give the officers the
information they asked for.
Eventually, Heffernan called back or someone called him a second time. This time, he spoke
with Comerford, who told him that, if Mattice came to his arraignment, which was scheduled for that
day, Turk’s involvement in the case would be over. If Mattice did not attend, however, Turk would
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have to come to the police station with Heffernan and talk to the officers. Soon after this
conversation ended, the officers left the house. The entire encounter took approximately thirty
minutes.
On April 17, 2009, the Turks filed this lawsuit, alleging violations of state and federal law.
The United States filed a Notice of Substitution and Motion to Dismiss for Failure to Exhaust
Mandatory Administrative Remedies under the Federal Tort Claims Act, 28 U.S.C. § 1346. The
Turks sought, and received, leave to amend their complaint. The amended complaint omitted all of
the first complaint’s common-law tort claims, and added the Cuyahoga Metropolitan Housing
Authority as a party. In the amended complaint, the Turks alleged that the officers’ search was
unconstitutional under state and federal law, that the Cuyahoga County Sheriff and Cuyahoga
Metropolitan Housing Authority failed to train the Task Force adequately, that the same two
municipal parties maintained illegal policies and customs, and that the individual officers were liable
under Bivens.
Later, the Turks voluntarily dismissed their claims against the municipal parties and
Chapman. After discovery on the remaining claims against the Task Force officers, the United States
filed a motion for summary judgment, based on qualified immunity. The district court granted in
part and denied in part the motion. First, it held that the Turks’ version of the officers’ initial entry,
if true, would support a finding of liability on Fourth Amendment grounds. The district court
reasoned, however, that the Turks’ claim based on the Task Force’s subsequent search failed because
Mrs. Turk gave the officers permission to search, and Mr. Turk’s words were not clear enough to
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vitiate his wife’s express consent. Finally, the district court held that Stasenko did not unreasonably
seize Turk, because he detained him in the foyer only incident to a lawful consensual search.
Judge O’Malley, who handled the case initially, was appointed to the Federal Circuit and left
the Northern District of Ohio. Judge Polster took over. After this substitution, the United States
moved for reconsideration of Judge O’Malley’s earlier decision denying the officers qualified
immunity for their initial entry. Judge Polster granted the motion. He reasoned that the officers were
entitled to qualified immunity because they reasonably believed that Turk consented to their entry
when he began to turn the dead-bolt on his door. Judge Polster also disposed of all claims against
Comerford and Rexing, reasoning that neither officer was present in the house until after Stasenko,
Adams, and Chapman had entered, and both were entitled to assume that their fellow officers acted
constitutionally. The Turks appeal.
II
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” FED . R. CIV . P. 56(a).
“[A]t the summary judgment stage the judge’s function is not himself to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). There is a genuine issue for trial if “the
record taken as a whole could . . . lead a rational trier of fact to find for the non-moving party.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). We review de
novo a district court’s grant of summary judgment, construing the facts and drawing all reasonable
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inferences in the moving party’s favor. Hirsch v. CSX Transp., Inc., 656 F.3d 359, 362 (6th Cir.
2011).
III
“Every person who, under color of . . . [state law], subjects, or causes to be subjected, any
citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by
the Constitution and laws, shall be liable to the party injured.” 42 U.S.C. § 1983. Section 1983,
however, does not make government officials liable for every act later held unconstitutional. Rather,
“[q]ualified immunity, shields federal and state officials from money damages unless a plaintiff
pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the
right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 131 S.
Ct. 2074, 2080 (2011). We need not address these two elements in a particular order. Ibid. (citing
Pearson v. Callahan, 555 U.S. 223, 236–37 (2009)).
Because qualified immunity is an affirmative defense, the defendant bears the burden of
pleading it in the first instance. Lanman v. Hinson, 529 F.3d 673, 683 (6th Cir. 2008); Sheets v.
Mullins, 287 F.3d 581, 586 (6th Cir. 2002). Once the defendant raises qualified immunity, however,
the burden shifts to the plaintiff, who must demonstrate both that the challenged conduct violated
a constitutional or statutory right, and that the right was so clearly established at the time of the
alleged violation “that every reasonable official would have understood that what he [was] doing
violate[d] that right.” al-Kidd, 131 S. Ct. at 2083 (internal quotation marks omitted). If the plaintiff
fails to establish either element, the defendant is immune from suit.
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IV
The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” U.S. CONST . amend. IV.
It has long been clear that, under this Amendment, an officer may not search for a person named in
an arrest warrant in a third-person’s house, unless the officer has a search warrant, obtains consent,
or faces exigent circumstances. Steagald v. United States, 451 U.S. 204, 216 (1981). Because the
Task Force officers violated this right, the Turks allege, they are amenable to suit under § 1983.
Without question, Task Force officers had no warrant to search Turk’s house. Nor do they
claim that exigent circumstances justified their actions. Rather, Appellees argued below, and
maintain here, that they did not violate the Fourth Amendment because the Turks consented to the
officers’ entering, and then searching, their home.
“While the Fourth Amendment protects citizens against unreasonable searches and seizures,
a search of a person is not unreasonable if that person gives free and voluntary consent.” United
States v. Beauchamp, 659 F.3d 560, 571 (6th Cir. 2011). “The notion of voluntariness,” the Supreme
Court has observed, “is itself an amphibian. It purports at once to describe an internal psychic state
and to characterize that state for legal purposes.” Culombe v. Connecticut, 367 U.S. 568, 604–05
(1961) (Frankfurter, J.). Complex though voluntariness may be, there are guideposts that help us
determine whether an individual consented to an officer’s search of his own free will.
We consider consent voluntary only if “it is unequivocal, specific and intelligently given,
uncontaminated by any duress or coercion.” United States v. Moon, 513 F.3d 527, 537 (6th Cir.
2008) (internal quotation omitted). In determining whether this is so, we analyze the totality of the
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circumstances, including “both the characteristics of the [consenting individual] and the details of
the [search].” Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). We therefore take into account
“the age, intelligence, and education of the [consenting] individual; whether the individual
understands the right to refuse to consent; and whether the individual understands his or her
constitutional rights.” Beauchamp, 659 F.3d at 572. We also consider whether the officer advised
the consenting individual of his constitutional rights, how long the search took, and whether the
officer used physical punishment, Bustamonte, 412 U.S. at 226, or some “more subtle form[] of
coercion that might flaw [the consenting individual’s] judgment.” United States v. Watson, 423 U.S.
411, 424 (1976).
Here, we consider two discrete Fourth Amendment events: the officers’ initial entry and their
subsequent search.
The Entry
As Turk went to find his daughter, he saw cars and men in hats outside of his house. He then
heard someone pounding on his door with a heavy object and telling him that, unless he opened the
door, he was “fucking going to jail right now.” According to Turk, whose account we must credit
at this stage, Task Force officers then attempted to break down the “dummy” side of his front door.
Moments later, as he began to turn the deadbolt on the side of the door that opened, the left-hand
side, Task Force officers pushed the left-hand door open, causing it to splinter, and rushed into the
house.
Turk’s account, if true, describes a textbook Fourth Amendment violation. “It is axiomatic
that the physical entry of the home is the chief evil against which the wording of the Fourth
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Amendment is directed,” Welsh v. Wisconsin, 466 U.S. 740, 748 (1984) (internal quotation omitted);
see also Payton v. New York, 445 U.S. 573, 587 (1980) (“Freedom from intrusion into the home or
dwelling is the archetype of the privacy protection secured by the Fourth Amendment.”) (quoting
Dorman v. United States, 435 F.2d 385, 389 (D.C. Cir. 1970) (Leventhal, J.)). This “overriding
respect for the sanctity of the home . . . has been embedded in our traditions since the origins of the
Republic.” Id. at 601. Indeed, as then-future Prime Minister Pitt the Elder put it:
The poorest man may in his cottage bid defiance to all the forces of the Crown. It
may be frail; its roof may shake; the wind may blow through it; the storm may enter;
the rain may enter; but the King of England cannot enter—all his force dares not
cross the threshold of the ruined tenement!
Miller v. United States, 357 U.S. 301, 307 (1958) (quoting The Oxford Dictionary of Quotations 379
(2d ed. 1953)).14
Here, law-enforcement officers, without a warrant, consent, or any exigent circumstance,
literally forced their way into the Turks’ home, arrogating to themselves powers beyond those of the
King of England. True, Turk’s turning the deadbolt may have shown that he was willing to talk with
14
Most believe that this quotation comes from a March 1763 speech to the House of
Commons on an excise tax. No reliable records, however, substantiate this attribution. There are
no contemporaneous records of House of Commons debates until 1771. There is a historical record
of a 1763 debate on the “Cyder Tax,” however, which reads: “Mr. Pitt spoke against this measure,
particularly against the dangerous precedent of admitting the officers of excise into private houses.
Every man’s house was his castle, he said.” 15 Parliamentary Hist. Eng. 1307 (1763) (available at
http://www2.odl.ox.ac.uk/gsdl/cgi-bin/library?e=d-000-00---0modhis06--00-0-0-0prompt-10---4-
-----0-1l--1-en-50---20-about---00001-001-1-1isoZz-8859Zz-1-0&a=d&c=modhis06&cl=CL1&d
=modhis006-aao.2.15.1.40 (last visited 7/13/12)).
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the officers face-to-face.15 But, without more, there is nothing about unlocking a door that
demonstrates consent—“unequivocal, specific and intelligently given,” Moon, 513 F.3d at 537—to
an officer’s entry into a home. Cf. United States v. Carter, 378 F.3d 584, 589 (6th Cir. 2004) (en
banc) (holding that stepping aside from doorway leaving officers clear path to enter, after being
asked for consent to search, was valid consent).
But even if Turk did mean to consent by beginning to unlock the door, a reasonable factfinder
could conclude that the officers’ threatening jail time and pounding on the door so hard that the glass
shook was coercive and therefore vitiated any consent that Turk gave. Indeed, we have found
coercion in significantly less trying circumstances. See Beauchamp, 659 F.3d at 572 (holding that
officers coerced suspect into consenting by failing to inform him of his right to refuse search and
asking for consent during frisk for weapons); United States v. Tatman, 397 F. App’x 152, 164–66
(6th Cir. 2010) (holding that consent to search house, given by domestic-violence victim pursuant
to signed consent form, was invalid because officers told her that it would be in her best interest to
sign form and victim saw abusive husband handcuffed and placed in police cruiser); United States
v. Worley, 193 F.3d 380, 386 (6th Cir. 1999) (holding that plain-clothes officers obtained consent
coercively by asking for permission to search bag, without detention, threat, or speech above
conversational tone, since suspect responded: “You’ve got the badge, I guess you can.”); United
States v. Tillman, 963 F.2d 137, 143–44 (6th Cir. 1992) (holding that consent was involuntary
because police told suspect that he was not free to leave and that search warrant would take two to
15
Such a conversation, of course, could take place through a door cracked open, or on Turk’s
front porch.
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three hours to obtain); cf. United States v. Bond, 433 F. App’x 441, 443 (6th Cir. 2011) (holding that
officer’s telling suspect that he would get a search warrant for hotel room did not make officers’
request to enter hotel room coercive). Thus, even if Turk’s turning the deadbolt were an act of
consent (which we hold that it was not), that consent was a product of coercion. Under either
analysis, the Task Force officers’ initial entry violated the Fourth Amendment.
The district court on reconsideration reached, and the officers urge, a different conclusion.
The district court reasoned that, because Turk began to turn the deadbolt after the officers knocked
on the door, and because the Turks did not object to the officers’ entry after they pushed the door
open, an objectively reasonable officer in Stasenko’s position could have believed that “the Turks
gave implied consent to enter their home.” Likewise, the officers argue that the Turks provided
“nothing . . . to demonstrate that a reasonable officer would not believe consent to enter was implied
from the circumstances or to rebut Stasenko’s assertion that he reasonably believed he had consent
to enter.” Appellees’ Br. at 33.
The district court erred and the officers are mistaken. Of course, it is possible to give consent
by conduct. See, e.g., United States v. Hinojosa, 606 F. 3d 875, 882 (6th Cir. 2010) (holding that
consent does not have to be verbal to be valid); Carter, 378 F.3d at 589 (“Carter asks us to hold as
a matter of law that consent must be given verbally . . . this we decline to do. Although a man’s
home is his castle, trumpets need not herald an invitation. The police may be kept out or invited in
as informally as any other guest.”). But that conduct, like any other kind of consent, must
unequivocally and specifically convey a message of consent, intelligently given and uncontaminated
by duress or coercion. Moon, 513 F.3d at 537.
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Turk’s beginning to move the deadbolt, after being told that he would go to jail if he did not
let the officers in, satisfies none of these criteria. It is, at best, an ambiguous gesture in response to
a direct threat of imprisonment. Indeed, if Stasenko had truly believed that Turk’s turning the
deadbolt was an act of consent, he had no reason to push the door open, rather than waiting for Turk
to finish opening it. Nor does the Turks’ failure to object after the unconstitutional entry bear on
this conclusion. The issue that we must decide is whether a reasonable officer in Stasenko’s shoes
could have interpreted Turk’s beginning to turn the deadbolt as consent to entry. That the Turks did
not object once the officers entered may be relevant to the factfinder, charged with deciding which
version of events to accept. But it does not affect our analysis, which turns only on what Stasenko
knew when he entered the home. In the totality of the circumstances, it was not objectively
reasonable to interpret Turk’s beginning to turn a deadbolt as an unequivocal and uncoerced
invitation to enter.
This conclusion makes the second piece of the qualified-immunity analysis relatively simple.
Officer Stasenko violated Turk’s right to be free from a warrantless search of his home for Mattice,
absent consent or exigent circumstances. The Supreme Court’s holding in Steagald clearly
established this right in 1981. Steagald, 451 U.S. 204. The officers who broke down Turk’s door
are not entitled to qualified immunity for their entry.
The Search
That the officers’ entry violated clearly established Fourth Amendment law, however, does
not mean that the same is necessarily true of their subsequent search. See Evans v. Vinson, 427 F.
App’x 437, 444 (6th Cir. 2011) (explaining that “doctrine[s] relating to the exclusionary rule . . . do[]
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not speak to the legality of the search itself and [are] thus inapplicable to the § 1983 context.”);
Chatman v. Slagle, 107 F.3d 380, 382 (6th Cir. 1997). Rather, the search was an independent Fourth
Amendment event, subject to independent Fourth Amendment analysis. As before, the Turks claim
that the officers violated their right to be free from a warrantless search of their home for Mattice,
absent consent or exigent circumstances. As before, the Task Force officers claim that an objectively
reasonable officer could have believed that he had consent to search the house, and that qualified
immunity is, therefore, appropriate.
The same general Fourth Amendment principles apply. An officer may not conduct a
warrantless search for a person named in an arrest warrant in a third-person’s house without exigent
circumstances or consent that “is unequivocal, specific and intelligently given, uncontaminated by
any duress or coercion.” Moon, 513 F.3d at 537 (internal quotation omitted). To determine whether
an officer had such consent, we examine the totality of the circumstances, taking into account
relevant characteristics of both the consenting individual and the request to search. Bustamonte, 412
U.S. at 226; Beauchamp, 659 F.3d at 572.
The burden to demonstrate that consent was voluntary “is not satisfied by showing a mere
submission to a claim of lawful authority.” Florida v. Royer, 460 U.S. 491, 497 (1983). And
consent coercively obtained, whether by trickery, see Bumper v. North Carolina, 391 U.S. 543,
548–49 (1968) (holding that search of sixty-six-year-old woman’s home was unconstitutional
because officers obtained consent by claiming, falsely, that they had a warrant), by “demanding
admission to make search of [a home] under government authority,” but without a warrant or exigent
circumstance, Amos v. United States, 255 U.S. 313, 317 (1921), or by openly threatening conduct,
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Kaupp v. Texas, 538 U.S. 626, 631–32 (2003) (per curiam) (holding that consent to seizure was not
valid where group of officers woke adolescent in the middle of the night “with the words we need
to go and talk.” (internal quotation marks omitted)), is no consent at all for Fourth Amendment
purposes. “A suspect’s knowledge of a prior illegal [act] can also give rise to a sense of futility,”
and vitiate consent. United States v. Haynes, 301 F.3d 669, 683 (6th Cir. 2002) (citing United States
v. Furrow, 229 F.3d 805, 814 (9th Cir. 2000), overruled on other grounds by United States v.
Johnson, 256 F.3d 895 (9th Cir. 2001)); Beauchamp, 659 F.3d at 572.
With the house surrounded, Turk’s liberty threatened, and the front door splintered, Mrs.
Turk allowed the Task Force to search her home. As soon as the Task Force officers entered, she
said: “Go through the entire house. . . . Get your people out of my front lawn.” Later, she asked that
the officers “[p]lease go search and fucking get out of my house,” and led them through “to get them
out of here.”
Turk was not so definitive. When Mrs. Turk first consented to search, his immediate reaction
was: “Wait a minute. Wait a minute. Wait a minute.” As Mrs. Turk began to lead officers around
the house, he said to the officers: “Please talk to me. Please talk to me. . . . She’s upset,” and to his
wife: “Wait a minute, wait. Wait until he’s done talking to Ed [Heffernan],” and “Beth, wait - -
would you wait until he’s - - ” However, Turk also told Officer Stasenko: “We’re going to be very
cooperative,” and in response to an officer’s telling him that his wife consented to the Task Force’s
“tak[ing] a look, [to] make sure he’s not here,” said: “that’s fine.” He also offered the officers
coffee, and said to his wife: “Beth, they’re just doing their job, they’re mistaken.”
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After breaking down the door and barging into the Turks’ home, no reasonable officer could
have believed that the Turks’ subsequent consent16 was voluntary. Rather, the coercion inherent in
the totality of the circumstances—the surrounded home, the unequivocal threats of imprisonment,
the splintered door, the ten-year-old daughter in a back bedroom—would have put any reasonable
officer on notice that the Turks’ consent was not freely given.17 Task Force officers are not entitled
to qualified immunity for the search that followed their illegal entry.
V
Turk also claims that Officer Stasenko violated his Fourth Amendment rights by physically
detaining him in the foyer. The district court dismissed this claim, pursuant to Michigan v. Summers,
452 U.S. 692 (1981) (holding that officers may detain occupants present during execution of a valid
16
In reaching our conclusion, we assume arguendo that the Turks did, in fact, ostensibly
consent to the officers’ search. We do not decide whether Mrs. Turk’s leading the officers around
the house, despite Mr. Turk’s somewhat inconsistent protests, qualified as consent, in light of
Georgia v. Randolph, 547 U.S. 103, 106 (2006) (holding that, when two occupants have joint control
over a home and the police seek consent to search, “a physically present co-occupant’s stated refusal
. . . prevails [over the other occupant’s consent], rendering the warrantless search unreasonable and
invalid as to him.”).
17
Consider, for instance, an officer who approaches a person sitting on his front porch. With
no reasonable suspicion, much less probable cause, the officer draws his gun, presses it against the
person’s head and demands consent to enter the person’s home. Once inside, the officer holsters his
gun and politely asks for consent to search, which the person gives. Of course, in isolation, the
officer’s second request is not particularly coercive. But the person’s consent to the officer’s search
of the home is still invalid because the officer’s earlier coercive tactics linger in the totality of the
circumstances.
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search warrant).18 But since we hold that the officers’ entry and search were invalid, we consider
this claim on its merits. See Johnson v. Hayden, 67 F. App’x 319, 324 (6th Cir. 2003).
“The Fourth Amendment protects the right of the people to be secure in their persons against
unreasonable seizures. This protection, however, applies only if a person is ‘seized’ within the
meaning of the Fourth Amendment.” United States v. Williams, 615 F.3d 657, 663 (6th Cir. 2010)
(internal citations and alterations omitted). “[N]ot all personal intercourse between policemen and
citizens involves ‘seizures’ of persons. Only when the officer, by means of physical force or show
of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has
occurred.” Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). An “encounter between a police officer and
a citizen [qualifies as] a seizure or detention within the meaning of the Fourth Amendment, if, in
view of all the circumstances surrounding the incident, a reasonable person would have believed that
he was not free to leave.” I.N.S. v. Delgado, 466 U.S. 210, 215 (1984).
Examples of circumstances that might indicate a seizure, even where the person did
not attempt to leave, would be the threatening presence of several officers, the
display of a weapon by an officer, some physical touching of the person of the
citizen, or the use of language or tone of voice indicating that compliance with the
officer’s request might be compelled.
United States v. Mendenhall, 446 U.S. 544, 555 (1980). “Once a consensual encounter escalates to
the point where the individual is ‘seized,’ the police officer must have a reasonable suspicion of
criminal activity to justify a Terry stop, or probable cause to justify an arrest, in order for the seizure
18
The district court noted that courts in other circuits have applied the holding of Summers
to consent searches.
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to comply with the Fourth Amendment.” United States v. Campbell, 486 F.3d 949, 954 (6th Cir.
2007).19
Stasenko physically detained Turk, grabbing him by his wrist to keep him in the foyer and
away from his wife. When Turk asked to finish getting dressed, Stasenko told him no—compelling
him to stay in the foyer by threatening him with jail time. Nothing in the record suggests that
Stasenko had reasonable suspicion or probable cause to justify his actions. And, of course, it has
been clearly established, at least since Terry, that a seizure not justified by probable cause or
reasonable suspicion violates the Fourth Amendment. Qualified immunity is not appropriate for
Turk’s illegal-detention claim.
VI
The district court on reconsideration held that Rexing and Comerford could not be liable
because they did not enter until after Stasenko, Adams, and Chapman, and because law-enforcement
officers may generally assume that other officers have acted lawfully. See Sargent v. City of Toledo
Police Dep’t, 150 F. App’x 470, 474 (6th Cir. 2005) (explaining that “no Fourth Amendment
violation occurs when an officer follows a partner inside after the partner has already entered the
home,” unless “there is [some] indication either that [the officer] ordered [the partner] to enter the
house illegally or that [the officer] knew that [the partner] entered the home without consent”). This
conclusion was correct as to Comerford. In his deposition, Turk explained that Comerford did not
enter until Stasenko called him on the radio in response to Turk’s calling Heffernan. Nor did Turk
19
Summers, 452 U.S. 692, of course, carves out an exception to this general rule.
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specifically allege that Comerford did anything, other than speak to him in person, and to Heffernan
on the phone. There is no indication, in short, that Comerford personally participated in any
unconstitutional conduct. The district court was correct to hold that the Turks’ claims against
Comerford must fail.
Rexing is a different story. There is dispute in the record over when Rexing entered. Turk’s
deposition testimony suggests that Rexing was in the home early in the incident, even though Turk
claimed that he could not remember which other officers entered with Stasenko. Id. at 93. In his
later-produced affidavit, Turk averred that Rexing entered with Stasenko, Adams, and Chapman.
Rexing, by contrast, swore in his affidavit that, when he came inside, “Stasenko, Adams, and
Chapman were in the foyer with James and Mary Beth Turk.” This is a genuine issue of material
fact, not amenable to resolution on summary judgment.20 The district court erred by dismissing the
Turks’ entry and search claims against Rexing, even though, as we discuss below, the Turks’ breach-
of-curtilage claims against Rexing fail.21
20
It is true that “[a] party may not create a factual issue by filing an affidavit, after a motion
for summary judgment has been made, which contradicts her earlier deposition testimony.” Reid v.
Sears, Roebuck and Co., 790 F.2d 453, 460 (6th Cir. 1986). But Turk’s affidavit is not inconsistent.
Rather, he testified in his deposition that Rexing was inside “harassing [his] family” early in the
incident, while Stasenko was detaining him in the foyer, and later claimed that Rexing entered with
Stasenko. These two statements are complementary, not contradictory.
21
Of course, at trial the Turks must prove that Rexing, himself, acted unconstitutionally, for
“[t]his Court has consistently held that damage claims against government officials arising from
alleged violations of constitutional rights must allege, with particularity, facts that demonstrate what
each defendant did to violate the asserted constitutional right.” Heyne v. Nashville Metro. Pub. Sch.,
655 F.3d 556, 564 (6th Cir. 2011) (quoting Lanman, 529 F.3d at 684).
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VII
Finally, the Turks claim that Task Force officers violated the Fourth Amendment by
breaching the curtilage of their home. A house’s curtilage is an area “so intimately tied to the home
itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.”
Hardesty v. Hamburg Twp., 461 F.3d 646, 652 (6th Cir. 2006) (quoting United States v. Dunn, 480
U.S. 294, 301 (1987)). A law-enforcement officer may enter a home’s curtilage without a warrant
if he has a legitimate law-enforcement objective, and the intrusion is limited. United States v.
Weston, 443 F.3d 661, 667 (8th Cir. 2006). Unquestionably, one such permissible intrusion is a
“knock and talk,” an investigative technique where an officer knocks on the door of a house to
engage the person inside in conversation. Hardesty, 461 F.3d at 653. Also, “where knocking at the
front door is unsuccessful in spite of indications that someone is in or around the house, an officer
may take reasonable steps to speak with the person being sought out even where such steps require
an intrusion into the curtilage.” Id. at 654.
What is not clear is whether officers’ surrounding a house, with no warrant, exigent
circumstances, or consent, violates the Fourth Amendment, even during a knock-and-talk. Very few
cases address this issue, and what little law exists is not consistent. Compare United States v. Butler,
No. 06-CR-215, 2007 WL 2220260, at *8 (E.D. Wis. Aug. 1, 2007) (holding that surrounding house
during knock-and-talk was justified by legitimate law-enforcement purpose where officers had
reason to believe that large quantities of heroin were present), with United States v. Berry, 468 F.
Supp. 2d 870, 880 (N.D. Tex. 2006) (holding that entry onto curtilage could not be justified as
knock-and-talk, where “[t]here were at least eight officers present. The officers carefully planned the
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operation, staked out their positions surrounding Berry’s house, and took cover positions. Four
officers entered Berry’s patio and approached the front door.”). In this scenario, the officers are
entitled to qualified immunity, since Turk’s right not to have officers surround his house during a
knock and talk is not so clearly established “that every reasonable official would have understood
that what he [was] doing violate[d] that right.” al-Kidd, 131 S. Ct. at 2083 (internal quotation marks
omitted).
VIII
In sum, we REVERSE the district court’s grant of summary judgment on the Turks’ Fourth
Amendment entry, search, and seizure claims. We also REVERSE the district court’s grant of
summary judgment for Rexing, but AFFIRM its grant of summary judgment for Comerford, and its
disposition of the Turks’ breach-of-curtilage claim. We REMAND for proceedings consistent with
this opinion.
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