Green, Michael v. Butler, Marlo ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2993
MICHAEL J. GREEN and
CHERYL POULSEN,
Plaintiffs-Appellants,
v.
MARLO BUTLER, DAVID CARROLL,
MARK SALSBERRY, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 3120—Charles P. Kocoras, Chief Judge.
____________
ARGUED MAY 4, 2005—DECIDED AUGUST 24, 2005
____________
Before RIPPLE, ROVNER and WOOD, Circuit Judges.
RIPPLE, Circuit Judge. Michael Green and Cheryl Poul-
sen rented a room in their residence to a state parolee,
Michael Belter. The named Illinois parole agents (“the
agents” or “the State”) entered the residence to search
Belter, prompting Mr. Green and Ms. Poulsen to file this
§ 1983 action for violations of their rights under the
Fourth Amendment. The district court granted summary
judgment to the agents, holding that Mr. Green and Ms.
2 No. 04-2993
Poulsen failed to demonstrate a Fourth Amendment vio-
lation and, in the alternative, that the officers enjoyed
qualified immunity. Mr. Green and Ms. Poulsen appeal the
grant of summary judgment. For the reasons set forth in
the following opinion, we reverse the judgment of the
district court and remand for further proceedings.
I
BACKGROUND
A. Facts
In February 2003, Mr. Green owned a home in
Warrenville, Illinois, where he resided with his girlfriend,
Ms. Poulsen. Mr. Green also rented a room in the house to
Belter, “[a] long-time acquaintance” of Mr. Green’s. R.29
at 1. Belter had been convicted in state court of criminal
sexual assault against a minor. At the time of the search,
he was on parole and electronically monitored.
As a condition of his parole, Belter executed a “Host Site
Agreement” when he moved into the residence. He identi-
fied himself as the host and did not indicate that anyone else
lived at the residence.1 As relevant here, the agreement
1
It is apparent that the Host Site Agreement’s purpose was
to ensure that the homeowner—Mr. Green—knew that the
parolee was subject to search at any time and consented to such
search. The form’s introductory provision stated: “I, ___[Host’s
Name]___, voluntarily agree to allow ___[Offender’s Name]___,
to reside at my residence . . . .” R.26, Ex.16. The “I” in the consent
provision thus referred to the host, not the offender.
Belter listed his own name in both the “Host’s Name” and
“Offender’s Name” spaces, placed his own initials next to
(continued...)
No. 04-2993 3
provided: “I [the undersigned] understand that my resi-
dence is subject to search at any time by parole agents or
designated Illinois Department of Corrections’ [sic] staff and
I explicitly consent thereto.” R.26, Ex.16. Mr. Green knew
that Belter was on parole, but neither he nor Ms. Poulsen
knew about the Host Site Agreement or its conditions. There
is some evidence that Belter’s parole agent, Richard Guise,
knew that Belter lived with Mr. Green; according to Belter,
Guise told him to execute the agreement in the way that he
did because it was merely a “technicality.” R.28 at 12. When
Guise retired, Belter’s file was transferred first to parole
agent Jeffrey Bryant. Bryant apparently knew that Belter
lived with Mr. Green because at one point Belter asked
Bryant to stop calling him at the residence telephone
number because the calls had caused problems with his
host. After a short period, Belter’s file again was transferred
to parole agent Marlo Butler, who repeatedly received
computer status updates indicating that Belter lived alone.
On February 23, 2003, Butler and Bryant made a routine
visit to Belter’s residence. Belter answered the door, quickly
stepped outside and shut the door behind him. The agents
asked to enter the residence, but Belter refused to let them.
Belter informed the agents that he was renting a room, that
the owner, Mr. Green, was not at home but would return
soon and that Mr. Green would not want them to come
inside. The agents asked Belter to inform Mr. Green that
they would return later that afternoon and left without
entering the residence.
Butler then called fellow parole agent Mark Salsberry.
1
(...continued)
each condition and signed over the space labeled “Host’s
Signature.”
4 No. 04-2993
Later that day, Salsberry, together with agents David Carroll
and Amy Freund, were briefed by Butler and Bryant at a
nearby restaurant parking lot. They met for up to fifteen
minutes, during which time the agents checked the depart-
ment computer files, which still indicated that Belter lived
alone. The agents agreed that they should return to the
residence, determine why Belter had refused them entry and
explain the parole conditions to him. Bryant’s entry in the
computer system confirmed that purpose: “AGTS CAME BY
A SECOND TIME TO GO OVER WITH HOST H/S [Host
Site] AGREEMENT AND PROGRAM RULES.” R.28 at 22.
There is no indication that the agents believed that they, or
anyone else in the home, were in danger or that the home
contained evidence of a crime.
Meanwhile, Mr. Green and Ms. Poulsen had returned to
the residence. Belter told his host of the parole agents’ visit
and informed him that they would return. Mr. Green went
out to the garage while Ms. Poulsen and Belter remained
in the house. When the agents returned, the garage door
was open, and they saw Mr. Green. Carroll and Butler
entered the garage. According to Mr. Green, “David Carroll
said ‘Where is Mike Belter?’ as he was going through the
garage, and I said ‘He’s in the house.’ He brushed me
aside with his arm and stated ‘This is what you get for
not cooperating.’” R.26, Ex.2 at 51. The two agents exited the
garage through a side door and, together with Salsberry and
Freund (Bryant remained near the street), opened and
entered through the unlocked front door of the residence,
with Mr. Green following. The parties dispute whether
the agents first knocked and announced their presence
before entering, and it is not clear whether Belter saw them
approach or whether the agents or a house occupant opened
No. 04-2993 5
the door.2 According to Ms. Poulsen, the first agent to enter
2
It appears that the “door” to Mr. Green’s home is actually
two doors—a glass storm door and a wooden interior door. It
is not clear if either door was open, nor is it clear where
Belter was located, who let the agents into the residence, or
whether the agents knocked before entering.
Belter indicated in his deposition that he was in the basement
with some friends when the door (presumably the basement
door, after the agents had entered) flew open and Carroll
called his name. R.26, Ex.9 at 66.
According to Ms. Poulsen, both doors were closed and the
agents neither knocked nor announced their presence before
entering. A “very big heavyset gentleman”—it is not clear from
her testimony whether she referred to Carroll or Salsberry—
entered first but never knocked. R.26, Ex.3 at 18-19.
Salsberry testified that he noticed people inside the house,
asked if one was Belter and, upon receiving an affirmative
response, opened the door and entered the house. It is not
clear from his testimony whether the storm door was closed
and the interior door was open, or whether both doors were
closed. He did not knock, ring the doorbell or say anything
else “because [he] could see the people standing right there.”
R.26, Ex.6 at 50.
Butler testified that Belter was “standing at the screen door”
when Salsberry spoke to him, and said nothing about a knock
or entry. R.26, Ex.4 at 62.
Freund testified that the storm door was closed, the interior
door was open and Belter was standing at the door. She recalled
Salsberry asking “Are you Mike Belter?” and then opening the
storm door and entering the residence. R.26, Ex.7 at 34-40.
Carroll alone testified that Salsberry knocked and that
someone—he was not sure who but indicated that it was not
(continued...)
6 No. 04-2993
told her to keep her dog away or he would shoot it.3 The
agents then handcuffed Belter.
Mr. Green followed the agents into the house. He testified
that he did not know who they were, and that he asked
repeatedly “Who are you people?” R.26, Ex.2 at 62. Eventu-
ally, according to Mr. Green, Carroll responded: “Here’s my
badge, here’s my ID and here’s my gun. Get out of my
way.” R.26, Ex.2 at 63. Salsberry took Belter to his bedroom
while Mr. Green and Carroll argued about whether the
former had signed a host site agreement. The other agents
looked around the rest of the residence. Accounts vary as to
how long the incident lasted, from thirteen minutes to an
hour, but at the conclusion Belter was released, Mr. Green
signed a host site agreement and Butler apologized for the
incident.
B. District Court Proceedings
Mr. Green and Ms. Poulsen brought this § 1983 action
against the parole agents for violating their rights under the
Fourth Amendment to the Constitution of the United States,
because the agents entered without a warrant and unreason-
ably failed to comply with the “knock and announce” rule.
The agents moved for summary judgment.
The district court granted the agents’ motion and entered
judgment in their favor. In doing so, the court rejected the
2
(...continued)
one of the agents—opened the door and let them in. R.26, Ex.5 at
58-59.
3
According to some of the officers’ depositions, they knew
or suspected that a dog was present in the home.
No. 04-2993 7
plaintiffs’ argument on the merits. It determined that, even
if the agents had failed to knock and announce their pres-
ence before entering, the knock and announce rule is but
one factor to consider in assessing whether an entry and
search is unreasonable under the Fourth Amendment.
Accordingly, the district court analyzed the totality of
circumstances, balancing the degree of privacy invasion
with the State of Illinois’ promotion of its legitimate inter-
ests. The court found the invasion of privacy to be minimal.
It noted that Mr. Green and Ms. Poulsen had a decreased
expectation of privacy because they knew that their
housemate Belter was a parolee, a fact reducing both their
subjective expectations of privacy and the objective expecta-
tions of society. Moreover, the court looked to the level of
intrusiveness inherent in the search itself. It determined that
the parole agents confined themselves to searching common
areas of the home and that there was no evidence that the
search was a veiled attempt to circumvent warrant require-
ments. On the other hand, the district court found Illinois’
interest to be compelling. The district court found a particu-
lar interest in maintaining public safety because parole
exposes a known offender to the public before he has served
fully his sentence and because recidivism rates are high.
Illinois’ interests were at their height, according to the
district court, as a reaction to Belter’s suspicious behavior
when the agents arrived the first time. On balance, then, the
district court found that the search comported with the
Fourth Amendment despite the agents’ failure to knock and
announce.
In the alternative, the district court held that the agents
enjoyed qualified immunity from suit. Even assuming that
Mr. Green and Ms. Poulsen established a Fourth Amend-
ment violation, the district court found that they could
8 No. 04-2993
not satisfy the second prong of the qualified immunity
analysis because “the unusual factual circumstances of this
case make the contours of Green and Poulsen’s rights in this
situation fuzzy enough that it would not be clear to a
reasonable agent in the same setting that the course of
conduct the agents undertook was unlawful.” R.29 at 10-11.
II
DISCUSSION
A. Standard of Review and Legal Standards
Summary judgment shall be granted “if the pleadings,
depositions, answers to interrogatories, and admissions
on file . . . show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c). We
review the district court’s grant of summary judgment
de novo, viewing the evidence in the light most favorable to
the nonmoving parties, Mr. Green and Ms. Poulsen. Ander-
son v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chortek v.
City of Milwaukee, 356 F.3d 740, 745 (7th Cir. 2004).
The Constitution of the United States guarantees that
“[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no War-
rants shall issue, but upon probable cause.” U.S. Const.
amend. IV. The touchstone of Fourth Amendment inquiry
is reasonableness,4 a standard measured in light of the
4
It is undisputed that the agents entered Mr. Green’s home
without a warrant supported by probable cause. “It is a basic
(continued...)
No. 04-2993 9
totality of the circumstances and determined by balanc-
ing the degree to which a challenged action intrudes on
an individual’s privacy and the degree to which the ac-
tion promotes a legitimate government interest. United States
v. Knights, 534 U.S. 112, 118-19 (2001); see also Ohio v.
Robinette, 519 U.S. 33, 39 (1996). The reasonableness require-
ment, and the totality of the circumstances inquiry, extends
to the manner in which a search is conducted. United States
v. Banks, 540 U.S. 31, 35 (2003).
In interpreting the Fourth Amendment, the Supreme
Court has “looked to the traditional protections against
unreasonable searches and seizures afforded by the com-
mon law at the time of the [Constitution’s] framing.” Wilson
v. Arkansas, 514 U.S. 927, 931 (1995). One such “traditional
protection” is the requirement that “officers entering a
4
(...continued)
principle of Fourth Amendment law that searches and sei-
zures inside a home without a warrant are presumptively
unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980)
(internal quotation marks omitted). In Kyllo v. United States, 533
U.S. 27, 31 (2001), the Supreme Court reiterated this principle,
noting that “[w]ith few exceptions, the question whether a
warrantless search of a home is reasonable and hence constitu-
tional must be answered no.” It is clear, however, that a
parolee does not have a sufficient expectation of privacy to justify
the warrant requirement. See United States v. Knights, 534 U.S. 112,
120-21 (2001); Griffin v. Wisconsin, 483 U.S. 868, 873-74 (1987). Mr.
Green and Ms. Poulsen make no argument before us that the
absence of a warrant in this case violated their
Fourth Amendment rights. Instead, they argue that the non-
observance of the knock and announce requirement rendered
unconstitutional the entry of the officers. We shall limit our
own inquiry to the argument made before us.
10 No. 04-2993
dwelling must knock on the door and announce their
identity and purpose before attempting forcible entry.”
Richards v. Wisconsin, 520 U.S. 385, 387 (1997).
This common law “knock and announce” principle forms
“an element of the reasonableness inquiry under the Fourth
Amendment.” Wilson, 514 U.S. at 934; see generally id. at 931-
36 (surveying the common law principle). In Wilson, the
Supreme Court noted three circumstances in which
an unannounced entry could be reasonable: (1) when there
is a threat of physical violence to the officers; (2) when it is
necessary to apprehend an escaped prisoner; or (3) when
officers have reason to believe that evidence would be
destroyed. Id. at 936. In Richards, the Supreme Court largely
repeated the situations that it identified in Wilson, noting
that “[i]n order to justify a ‘no-knock’ entry, the police must
have a reasonable suspicion that knocking and announcing
their presence, under the particular circumstances, would be
dangerous or futile, or that it would inhibit the effective
investigation of the crime by, for example, allowing the
destruction of evidence.” Richards, 520 U.S. at 394. In United
States v. Banks, 540 U.S. 31 (2003), the Court described the
knock and announce rule as one of a class of “factual
considerations of unusual, albeit not dispositive, signifi-
cance” to the reasonableness inquiry. Id. at 36. Banks reaf-
firmed that “[t]he standard for a no-knock entry stated in
Richards applies on reasonable suspicion of exigency or
futility.” Id. at 37 n.3. The Court went on to explore a no-
knock entry based on exigency without considering the
futility exception. Id.No. 04-2993 11
B. Fourth Amendment Violation
1.
The parties focus most of their attention on one issue: the
agents’ failure to knock and announce their presence and
intentions before entering the house.5 Simply stated, the
parties dispute whether the agents knocked and announced
their presence, whether Belter saw them as they approached
and whether the agents or an occupant of the home opened
the door. This factual dispute ordinarily would preclude a
grant of summary judgement. See Sledd v. Lindsay, 102 F.3d
282, 288 (7th Cir. 1996). However, the State argues that, even
assuming a failure to knock and announce, summary
judgment to the agents was appropriate because their
failure was excused.
We adhere to the principle that we must view the facts
in a light most favorable to Mr. Green and Ms. Poulsen.
There is evidence supporting the plaintiffs’ version of
events, and we therefore must assume that the agents
entered the home without knocking or announcing their
presence and purpose, and, thus, that they failed to
comply with the knock and announce rule. Moreover,
we must accept that Mr. Green did not know the iden-
tity of the agents, and that Belter did not see them or invite
5
Mr. Green and Ms. Poulsen raised the no-knock argument
in their opposition to the State’s motion for summary judgment,
but the district court did not explicitly address it. Instead,
the district court balanced the plaintiffs’ privacy interests with
the State’s interest in an overall reasonableness analysis, focusing
on Belter’s consent and the “special needs” inherent
in monitoring parolees.
12 No. 04-2993
them into the home before their entry.6
The State first argues that the agents’ failure to comply
with the knock and announce rule should be excused.
However, the factors justifying a no-knock entry identified
in Wilson, Richards and Banks largely are inapplicable to
this case.7 The agents here were not, for example, in pur-
suit of an escaped prisoner. Moreover, consistent with
the discussion in Banks, our cases have focused upon
exceptions to the knock and announce principle based on an
exigency, such as manifest danger to the officers or others.
See Leaf v. Shelnutt, 400 F.3d 1070, 1084-85 (7th Cir. 2005); see
also United States v. Gillaum, 372 F.3d 848, 854 (7th Cir. 2004)
(“Absent exigent circumstances, law enforcement officers
must knock on the entry door of a dwelling and ‘announce
their identity and intention before attempting forcible
entry.’” (quoting United States v. Espinoza, 256 F.3d 718, 723
(7th Cir. 2001))). It is possible that, in a situation such as the
one at issue here, the agents reasonably could have sus-
6
Because it ultimately does not affect the outcome of this case,
we assume that the agents’ alleged actions would not be a
violation of the knock and announce rule if co-occupant
Belter knew of the agents’ presence or otherwise indicated
his consent before they entered.
7
The agents did not break the door, but entering without
permission constituted a “forcible entry” for purposes of the
knock and announce rule. See Sabbath v. United States, 391 U.S.
585, 589-91 (1968) (construing the phrase “break open” in the
federal knock and announce statute, 18 U.S.C. § 3109, to include
opening a closed but unlocked door); Leaf v. Shelnutt, 400 F.3d
1070, 1082 n.12 (7th Cir. 2005) (finding a “breaking” when officers
parted blinds to enter an open door); see also United States v.
Antrim, 389 F.3d 276, 279 (1st Cir. 2004) (analyzing entry as
“forcible” though police used key to open the door).
No. 04-2993 13
pected an exigency based on Belter’s behavior on their first
visit of the day—the threat of imminent danger or perhaps
of the destruction of evidence—but they do not claim such
a justification. Indeed, it is clear that Butler and Bryant did
not believe that they faced an exigent circumstance because
they allowed Belter to return inside while they left the house
for a considerable period to meet with other agents. More-
over, Bryant’s notation about the purpose for the agents’
return to the home indicated nothing about an imminent
threat.
The State thus focuses its attention to the “futility”
exception, relying upon cases such as United States v. McGee,
280 F.3d 803 (7th Cir. 2002),8 and arguing that the agents’
entry was justified because it would have been futile to
knock and announce. According to the State, Mr. Green
already had notice that they would return and therefore
knew their identities and purpose; knocking and announc-
ing thus would have been futile, a “useless gesture.” Id. at
807. The State also argues that knocking and announcing
would have been “futile” because they reasonably believed
that the occupants had been warned of their return and
8
In United States v. McGee, 280 F.3d 803, 805 (7th Cir. 2002), an
FBI entry team knocked on and then entered through an outer
door of McGee’s apartment. Approximately ten seconds later, the
team broke down an interior door and entered, this time without
knocking. Unbeknownst to the entry team, McGee had exited
from the rear of the apartment after hearing the first knock and
had been apprehended; he thus was not in the apartment when
the team actually entered. We rejected McGee’s knock and
announce challenge, holding that it would have been a “useless
gesture” for the agents to knock and announce before entering
the inner door when McGee was not in the apartment and thus
could not authorize entry. Id. at 807.
14 No. 04-2993
knew their identities. See, e.g., United States v. Pelayo-Landero,
285 F.3d 491, 498 (6th Cir. 2002) (noting that knocking and
announcing is a “useless gesture” when the occupant
already knows the officer’s identity and purpose); United
States v. Kane, 637 F.2d 974, 978 (3d Cir. 1981) (same).
We cannot accept the State’s futility argument. Contrary
to the State’s submissions, McGee is inapplicable to these
facts. In McGee, we noted that the futility exception applies
when “a precipitous entry into a suspect’s residence
was harmless because that suspect was not home or was not
in a position to have ever answered his door.” McGee, 280
F.3d at 807 (citing United States v. Barnes, 195 F.3d 1027, 1029
(8th Cir. 1999)). In other words, the futility exception we
articulated in McGee renders a failure to knock and an-
nounce harmless when the homeowner could not have
authorized entry. That is not the case here; indeed, two
agents stopped to speak to the owner without identifying
themselves, and there was no reason not to knock before
entering the home. Moreover, because this is an appeal from
a motion for summary judgment, we must view
the disputed facts in a light most favorable to Mr. Green.
Under this standard, we credit his claim that he did not
know the identity of the individuals who approached
him and asked for Belter; we must accept as well Belter’s
view that he did not see the agents approaching before they
entered. This is not a situation where the occupant recog-
nized the officers and then sought to bar entry. See United
States v. Peterson, 353 F.3d 1045, 1049 (9th Cir. 2003). Rather,
it is one in which the occupants claim that they did not
know the identity of the officers. Accordingly, the State’s
futility argument is inapposite to the circumstances pre-
sented. See Leaf, 400 F.3d at 1084 n.17. It would not be
reasonable for the agents to believe that, under the cir-
cumstances, knocking or announcing their identity and
No. 04-2993 15
requesting permission to enter would have been a useless
gesture.
The State also argues an exception not mentioned in
Wilson or its progeny: that Mr. Green consented to the entry
by knowingly hosting a parolee, or that he at least tacitly
approved the entry by not objecting when the agents
approached him in the garage. See United States v. Ramirez,
523 U.S. 65, 70 (1998); Wilson, 514 U.S. at 934. In a related
argument, the State points out that Belter, a resident of the
house, had consented to the entry as a condition of his
parole, and perhaps Belter also implicitly gave consent if he
saw the agents’ approach.
We find this consent argument unavailing. It is true that
an individual may consent to an officer’s entry, thus
obviating the need for the officer to announce his presence
and purpose. This principle may apply even when the
occupant is unaware of the officer’s identity, for example,
when he responds with “[t]he door is open; come on in” to
unknown individuals knocking at his door. See United States
v. Hatfield, 365 F.3d 332, 340-41 (4th Cir. 2004). But viewing
the facts in a light most favorable to Mr. Green, the officers
were unknown and uninvited, and their entry was without
consent. Nor can it be said that Belter or Mr. Green con-
sented by agreeing to the conditions in the host site agree-
ment. Belter consented to a search at any time; however
neither Belter nor the homeowner consented to the activity
alleged here: parole agents walking into the house without
informing anyone of their identity and purpose.
Indeed, the alleged entry of unknown and uninvited
agents presented the very dangers that the knock and
announce rule was intended to address, and, contrary to the
State’s argument, requiring the agents to announce their
presence and purpose at the front door, or at least to Mr.
16 No. 04-2993
Green, would not “subordinate reasonableness to pure and
empty formalism.” Appellees’ Br. at 20. One purpose of the
rule is to protect the privacy of the occupants and to give
them an opportunity to prepare for the agents’ entry,
allowing them “to pull on clothes or get out of bed.”
Richards, 520 U.S. at 393 n.5. Under the circumstances, which
presented no exigency, it was an unreasonable invasion of
privacy for the officers to fail to afford Belter, Ms. Poulsen
or other occupants an opportunity to prepare for their entry.
The occupants were given no opportunity to comply with
the officers’ request.
More importantly, the entry alleged presented signif-
icant dangers for the officers, who, in entering
unannounced, exposed themselves to the risk that an
occupant would mistake their entry for an invasion and
reasonably would take defensive measures to protect
himself from the perceived, though mistaken, threat. See
United States v. Sargent, 319 F.3d 4, 8 (1st Cir. 2003); 2 Wayne
R. LaFave, Search and Seizure § 4.8(a), at 662-63 (4th ed.
2004). In the same vein, observance of the knock and
announce rule is a significant safeguard to the occupants of
the home, including innocent third parties for whom the
surprise of an unannounced entry by law enforcement
officers might elicit panic or other forms of irrational
conduct—action that easily can be misapprehended by
law enforcement officers and result in deadly defensive
measures on their part. See Sledd, 102 F.3d at 286.9 Specific to
9
The danger, and potential tragedy, of escalating violence
prompted by mistaken self-defense on the part of police and
occupant is illustrated by Sledd v. Lindsay, 102 F.3d 282 (7th Cir.
1996). In Sledd, the occupant heard police enter, mistook them for
(continued...)
No. 04-2993 17
the facts of this case, notice of impending entry might have
given the occupants a chance to control the dog, reducing
the risk to the agents of an accidental attack or of the need
to “shoot” the animal.
In sum, a reasonable officer would not believe that a
parolee’s consent to submit to search on demand elim-
inates the need to make such a demand, absent an exigency
or demonstrated futility. “None of the elements that have
supported dispensing with the knock and announce require-
ment in our case law exist in the current factual circum-
stances.” See United States v. Nielson, __ F.3d __, 2005 WL
1694033, at *5 (10th Cir. 2005).10
9
(...continued)
intruders, and retrieved a rifle to defend his home. The officers
saw Sledd with the firearm and shot him to death, claiming that
their action was justified, though mistaken, self-defense in
response to Sledd’s mistaken self-defense.
10
Moreover, in the criminal context, in this circuit, a violation of
the knock and announce principle does not result in the exclusion
of seized evidence. Rather, we have noted that relief for such
violations may be obtained through an action under 42 U.S.C. §
1983 or a Bivens action. United States v. Langford, 314 F.3d 892, 894-
95 (7th Cir. 2002), cert. denied, 540 U.S. 1075 (2003). To hold that
the conduct alleged here is insufficient to establish such a claim
risks making the knock and announce rule itself a useless gesture.
18 No. 04-2993
2.
Thus, we do not believe that an agent could reasonably
believe that any of the State’s asserted justifications would
excuse his failure to knock and announce. We also are
mindful that “[t]he knock and announce principle is but one
part of the reasonableness inquiry to be conducted under
the Fourth Amendment,” Leaf, 400 F.3d at 1083, and we
therefore must consider the totality of the circumstances,
Wilson, 514 U.S. at 934. “The Fourth Amendment’s flexible
requirement of reasonableness should not be read to
mandate a rigid rule of announcement that ig-
nores countervailing law-enforcement interests. . . . [T]he
common-law principle of announcement was never
stated as an inflexible rule requiring announcement under
all circumstances.” Id. The State urges that Belter, and hence
Mr. Green and Ms. Poulsen, had a decreased expectation of
privacy based on Belter’s status as a parolee, and that the
agents’ actions thus were reasonable when considered in
their totality, despite their failure to knock and announce.
We have noted that, “[i]n the case of parolees and proba-
tioners, th[e] expectation [of privacy] is significantly limited
by the supervisory relationship and restrictions imposed on
the individual by the State.” United States v. Jones, 152 F.3d
680, 686 (7th Cir. 1998).
There is a difference, however, between the reduced
expectation of privacy because one’s residence is subject to
search on demand and no expectation of privacy because the
police are free to enter, unannounced, at any time. As the
Supreme Court stated in Griffin v. Wisconsin, 483 U.S. 868,
873 (1987), “[a] probationer’s home, like anyone else’s,
is protected by the Fourth Amendment’s requirement
that searches be ‘reasonable.’” Just as “there is no blanket
exception to the knock and announce requirement for felony
No. 04-2993 19
drug cases,” United States v. Tavares, 223 F.3d 911, 916 (8th
Cir. 2000); see Richards, 520 U.S. at 394, there is no blanket
exception to the requirement for parolees absent exigency or
futility. A parolee who consents to search as a parole
condition cannot refuse an officer’s request to enter, and the
officer is excused from the general requirement that he
search only upon warrant supported by probable cause,
Knights, 534 U.S. at 121, but the officer is not excused from
identifying himself. See United States v. Musa, 288 F. Supp.
2d 1205, 1208 (D. Kan. 2003) (“The government does not
cite, nor did the Court find, cases that extend a probationer’s
diminished expectation of privacy to elimination of the
knock and announce requirement . . . .”), rev’d on other
grounds by United States v. Musa, 401 F.3d 1208 (10th Cir.
2005).11
Considering the totality of circumstances, the parole
agents had every opportunity to identify themselves and
request entry; they spoke to Mr. Green in the garage but still
asked only for Belter’s location and commented about Mr.
Green’s perceived failure to cooperate. They had another
opportunity to knock and announce when they reached the
front door, but declined to do so. There was no apparent
11
In United States v. Musa, 288 F. Supp. 2d 1205, 1208 (D. Kan.
2003), the district court rejected the Government’s argument
that a probationer’s consent to search lowered his expectation
of privacy to the point that a no-knock entry was reasonable.
On appeal in United States v. Musa, 401 F.3d 1208 (10th Cir.
2005), the court of appeals reversed, on the ground that exi-
gency justified the officer’s entry. The United States specifi-
cally disclaimed any challenge to the district court’s deter-
mination that a probationer’s blanket consent could eliminate the
need to knock and announce. See id. at 1217 (Henry, J., dissent-
ing).
20 No. 04-2993
exigency, and it is clear that time was not of the essence.
Moreover, even if the homeowner expects a visit from
parole agents, we do not believe that it would be clear to an
individual in Mr. Green’s position that a group of people
who approach and ask for the resident parolee necessarily
are agents of the State, rather than acquaintances or even
enemies of the parolee. Nor would it necessarily be clear to
the parolee that individuals entering the home are State
agents, as opposed to acquaintances or enemies of the host.
In balancing an individual’s privacy interests against
the State’s interests, Knights, 534 U.S. at 118-19, we can-
not say that the State’s interests weigh heavily here. As
alleged, there was no exigency justifying a failure to knock
and announce, no suspected danger to the officers, to
third parties or to the community. Nor was there an appar-
ent risk that evidence would be destroyed that
would excuse the agents from identifying themselves. In
contrast, the individual privacy interests and the poten-
tial risk of mistaken self-defense weigh heavily.
C. Qualified Immunity
The district court held in the alternative that, even if the
parole agents violated Mr. Green’s and Ms. Poulsen’s Fourth
Amendment rights, they were entitled to qualified immu-
nity from suit. Qualified immunity shields the agents from
suit unless Mr. Green and Ms. Poulsen can demonstrate (1)
“the violation of a constitutional right” that is (2) “clearly
established at the time of the alleged violation, so that a
reasonable public official would have known that his
conduct was unlawful.” Sonnleitner v. York, 304 F.3d 704, 716
(7th Cir. 2002); see Saucier v. Katz, 533 U.S. 194, 200-02 (2001);
Anderson v. Creighton, 483 U.S. 635, 638-39 (1987). As
No. 04-2993 21
discussed above, the plaintiffs have met their first-prong
burden by demonstrating, at least at this stage of the
proceedings, the violation of a constitutional right.
We thus address here only the second prong of qualified
immunity analysis. As above, we consider the facts in a light
most favorable to Mr. Green and Ms. Poulsen, McGreal v.
Ostrov, 368 F.3d 657, 682 (7th Cir. 2004), and ask whether the
plaintiffs have demonstrated that, in 2003, reasonable parole
agents would have known that entering the home without
announcing their identity and purpose would be unlawful.
To meet their burden, Mr. Green and Ms. Poulsen “may
point to closely analogous cases demonstrating that the
conduct is unlawful or demonstrate that the violation is so
obvious that a reasonable state actor would know that what
he is doing violates the Constitution.” Id. at 683.
Mr. Green and Ms. Poulsen point to two cases, in addition
to the Supreme Court’s decision in Richards, to support their
position. In Sledd, 102 F.3d 282, we held that officers were
not entitled to invoke qualified immunity at the summary
judgment stage because, viewing the evidence in a light
most favorable to the plaintiff, the officers’ actions were
objectively unreasonable. The “unreasonable” actions in
Sledd included allegations that the officers failed to knock
and announce and then improperly used deadly force on the
occupant once they entered. Mr. Green and Ms. Poulsen also
point out that, in 2000, we described the knock and an-
nounce requirement as “well-established” and indicated
only two exceptions: where there is a threat of physical
violence or potential destruction of evidence. Jacobs v. City
of Chicago, 215 F.3d 758, 770 n.5 (7th Cir. 2000). The State
counters that neither Sledd nor Jacobs is entirely apposite to
the circumstances here and therefore argues that Mr. Green
and Ms. Poulsen have failed to meet their burden.
22 No. 04-2993
The State is correct that Sledd and Jacobs are not “on
all fours” with the case before us. See McGreal, 368 F.3d
at 683. However, the second qualified immunity prong
is not “predicated upon the existence of a prior case that
is directly on point. The question is whether a reason-
able state actor would have known that his actions . . . were
unlawful.” Nabozny v. Podlesny, 92 F.3d 446, 456 (7th Cir.
1996) (citation omitted). “Although earlier cases involv-
ing fundamentally similar facts can provide especially
strong support for a conclusion that the law is clearly
established, they are not necessary to such a finding.” Hope
v. Pelzer, 536 U.S. 730, 741 (2002) (internal quotation
marks omitted). Fourth Amendment inquiries are fact-
intensive. However, as the Supreme Court emphasized in
Hope, “officials can still be on notice that their conduct
violates established law even in novel factual circum-
stances.” Id. “The salient question is not whether there is
a prior case on all fours with the current claim but wheth-
er the state of the law at the relevant time gave the defen-
dants fair warning that their treatment of the plaintiff
was unconstitutional.” McGreal, 368 F.3d at 683. Considering
the facts of this case in a light favorable to the plaintiffs, we
believe that Mr. Green and Ms. Poulsen have met their
burden.
Of prime importance to our conclusion is the work of
the Supreme Court of the United States. By 2003, the
Supreme Court had affirmed, and had re-affirmed, the
importance of the knock and announce rule in Fourth
Amendment reasonableness inquiries. Richards, 520 U.S. 385;
Wilson, 514 U.S. 927. Richards and Wilson made clear that no-
knock entries would be reasonable only in cases of exigency
or futility. Cases interpreting the futility exception estab-
lished, at most, that knocking and announcing would be
futile if the occupant consented to entry, or was not there to
No. 04-2993 23
consent to entry, or recognized the officers and attempted to
bar their entry. In addition, by 2003, the Supreme Court had
recognized, in no uncertain terms, that a parolee’s home is
protected by the Fourth Amendment “like anyone else’s.”
Griffin, 483 U.S. 868. The Court also had rejected blanket
exceptions to the knock and announce rule in Richards. See
520 U.S. at 391-95.
In short, at the time of the incident at issue here, a reason-
able agent would have known that a critical component of
a reasonable entry under the Fourth Amendment was the
knock and announce requirement. There was no reason for
an agent to believe, under these facts, that dispensing with
the requirement was justified by any exigency or futility.
Nor was there any basis for a belief that the parolee’s
consent to search justified dispensing entirely with the
knock and announce rule. Indeed, when an officer enters a
home without knocking and announcing his identity and
purpose, and without a manifest exigency or demonstration
that compliance would be futile, the Fourth Amendment
violation “is so obvious that a reasonable state actor would
know that what he is doing violates the Constitution.”
McGreal, 368 F.3d at 683.
It may turn out, after the facts are fully developed, that the
parole agents here did knock and announce their presence,
or that Belter saw and recognized them before their entry, or
that an occupant of the home actually allowed them to
enter. But these are disputed issues of fact. “Given the
significance of the disputed issues of fact here, qualified
immunity from suit is effectively unavailable, even though
after a full trial the officers may yet prevail on the merits.”
Sledd, 102 F.3d at 288 (emphasis in original).
24 No. 04-2993
Conclusion
For the foregoing reasons, disputed issues of material
fact remain and the parole agents are not, at this stage,
entitled to qualified immunity from suit. We therefore
reverse the grant of summary judgment to the agents
and remand for further proceedings. The plaintiffs may
recover their costs in this appeal.
REVERSED and REMANDED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-24-05