Carl Cook v. David Gibbons ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-1754
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Carl Franklin Cook, *
*
Appellee, *
*
v. *
*
David Gibbons, Prosecuting *
Attorney, Pope County, *
*
Defendant, *
* Appeals from the United States
Johnny Casto, Agent, 5th Judicial * District Court for the Eastern
District Drug Task Force, * District of Arkansas.
*
Appellant, * [UNPUBLISHED]
*
William Kelly, Agent, 5th Judicial *
District Drug Task Force; Scott *
Harper, Agent, 5th Judicial District *
Drug Task Force, *
*
Defendants, *
*
Dale Swesey, Criminal Investigator, *
Arkansas State Police, *
*
Appellant, *
*
Richard Hoffman, Criminal Investigator, *
Arkansas State Police; Hoyt Harness, *
Criminal Investigator, Little Rock *
CID; Mark Blankenship, Criminal *
Investigator, Little Rock CID, *
*
Defendants, *
*
Kevin Webb, Criminal Investigator, *
Little Rock CID, *
*
Appellant, *
*
Mark Thompson, Criminal Investigator, *
Jonesboro CID, *
*
Defendant, *
*
Nick Castro, Criminal Investigator, *
Fort Smith CID, *
*
Appellant, *
*
Robert Speer, Arkansas Highway Police, *
*
Defendant, *
*
Jeff Crow, Arkansas Highway Police; *
Jeff Jester, Arkansas Highway Police; *
Bobby Alcon, Arkansas Highway *
Police; Joel Eubanks, Arkansas *
Highway Police, Harrison, Arkansas, *
*
Appellants, *
*
Charlie Edmondson, Arkansas Highway *
Police, Fort Smith, Arkansas, *
*
Defendant, *
*
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Bryan Davis, Arkansas Highway Police, *
Fort Smith, Arkansas; Kevin *
Richmond, Fort Smith Special *
Operations, *
*
Appellants, *
*
Jay Winters, Sheriff, Pope County; *
Caldwell, Deputy Sheriff, Pope *
County; Kyle Drown, Sgt., Arkansas *
State Police; Johnathan Freeman, *
Pottsville Police Department; David *
Hyden, Sgt., Arkansas State Police; *
Dwayne Luter, Sgt., Arkansas State *
Police; Charles Martin, Atkins Chief of *
Police; Rick Martin, Pottsville Chief of *
Police; Chris Ridenhour, Russellville *
Police Department; Tim Whittenberg, *
Atkins Asst. Chief of Police; Mars, *
Colonel Coordinator for the Arkansas *
State Police S.W.A.T. and/or Assault *
Team and/or Entry Team, for *
the State of Arkansas sued in his *
individual capacity; Scott Walls, *
Criminal Investigator for Little Rock *
CID, Little Rock, Arkansas sued in his *
individual capacity; Jeff Chandler, *
Assistant Prosecuting Attorney for the *
Fifth Judicial District of Arkansas sued *
in his individual capacity; Ben Cross, *
Arkansas State Police; Jimmy Casto, *
Criminal Investigator for Russellville *
Police Department and Fifth Judicial *
Drug Task Force sued in his individual *
capacity, *
*
Defendants. *
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___________
No. 07-1785
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Carl Franklin Cook, *
*
Appellee, *
*
v. *
*
David Gibbons, Prosecuting *
Attorney, Pope County; Johnny *
Casto, Agent, 5th Judicial District *
Drug Task Force; William Kelly, *
Agent, 5th Judicial District Drug *
Task Force; Scott Harper, Agent, 5th *
Judicial District Drug Task Force; *
Dale Swesey, Criminal Investigator, *
Arkansas State Police; Richard *
Hoffman, Criminal Investigator, *
Arkansas State Police; Hoyt Harness, *
Criminal Investigator, Little Rock CID; *
Mark Blankenship, Criminal *
Investigator, Little Rock, CID; Kevin *
Webb, Criminal Investigator, Little *
Rock CID; Mark Thompson, Criminal *
Investigator, Jonesboro CID; Nick *
Castro, Criminal Investigator, Fort *
Smith CID; Robert Speer, Arkansas *
Highway Police; Jeff Crow, Arkansas *
Highway Police; Jeff Jester, Arkansas *
Highway Police; Bobby Alcon, *
Arkansas Highway Police; Joel *
Eubanks, Arkansas Highway Police, *
Harrison, Arkansas; Charlie *
Edmondson, Arkansas Highway *
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Police, Fort Smith, Arkansas; *
Bryan Davis, Arkansas Highway *
Police, Fort Smith, Arkansas; Kevin *
Richmond, Fort Smith Special *
Operations; Jay Winters, Sheriff, *
Pope County; Caldwell, Deputy Sheriff, *
Pope County; Kyle Drown, Sgt., *
Arkansas State Police; Ben Cross, *
Arkansas State Police; Johnathan *
Freeman, Pottsville Police Department; *
David Hyden, Sgt., Arkansas State *
Police; Dwayne Luter, Sgt., Arkansas *
State Police, *
*
Defendants, *
*
Charles Martin, Atkins Chief of *
Police, *
*
Appellant, *
*
Rick Martin, Pottsville Chief of *
Police; Chris Ridenhour, Russellville *
Police Department; Tim Whittenberg, *
Atkins Asst. Chief of Police; Jimmy *
Casto, Criminal Investigator for *
Russellville Police Department and *
Fifth Judicial Drug Task Force sued *
in his individual capacity; Mars, *
Colonel Coordinator for the Arkansas *
State Police S.W.A.T. and/or Assault *
Team and/or Entry Team, for the State *
of Arkansas sued in his individual *
capacity; Scott Walls, Criminal *
Investigator for Little Rock CID, Little *
Rock, Arkansas sued in his individual *
capacity; Jeff Chandler, *
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Assistant Prosecuting Attorney *
for the Fifth Judicial District of *
Arkansas sued in his individual *
capacity, *
*
Defendants. *
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Submitted: September 26, 2008
Filed: January 20, 2009
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Before MURPHY, BYE, and BENTON, Circuit Judges.
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PER CURIAM.
Carl Cook filed this 42 U.S.C. § 1983 action against thirty-four individuals,
most of whom were members of an Arkansas State Police (ASP) SWAT team or the
Fifth Judicial Drug Task Force (DTF), and he claimed, in relevant part, that they used
excessive and unreasonable force in the execution of a no-knock search warrant at his
home on July 13, 1999, needlessly and maliciously damaging his residence and
personal property, in violation of his rights under the Fourth and Fourteenth
Amendments. After the district court disposed of the parties’ motions for dismissal
or summary judgment, ten law-enforcement officers--DTF agent Johnny Casto; ASP
SWAT team commander Dale Swesey; ASP officers Kevin Webb, Nick Castro, Jeff
Crow, Jeff Jester, Bobby Alcon, Bryan Davis, Kevin Richmond, and Joel Eubanks--
appeal the denial of their motions for summary judgment based on qualified immunity
(No. 07-1754). In addition, in a consolidated appeal (No. 07-1785), City of Atkins,
Arkansas, Chief of Police Charles Martin challenges the denial of his motion for
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summary judgment based on qualified immunity.1 For the reasons that follow, we
reverse and remand in both appeals.
A district court’s pretrial denial of qualified immunity is an immediately
appealable interlocutory order to the extent the denial turns on an issue of law;
appellate jurisdiction is limited to determining whether, viewing the facts in the light
most favorable to the plaintiff, the defendant violated the plaintiff’s clearly established
constitutional or statutory rights, of which a reasonable person would have known.
See Walker v. City of Pine Bluff, 414 F.3d 989, 991-92 (8th Cir. 2005) (when district
court has denied qualified immunity on ground that material facts are disputed,
reviewing court may not review sufficiency of any evidence that is disputed). It is
well settled that the Fourth Amendment protects against unreasonable or unnecessarily
destructive searches and seizures. See Ginter v. Stallcup, 869 F.2d 384, 388 (8th Cir.
1989) (per curiam). On the other hand, “officers executing search warrants on
occasion must damage property in order to perform their duty.” See Dalia v. United
States, 441 U.S. 238, 258 (1979) (manner in which warrant is executed is subject to
later judicial review as to its reasonableness). Thus, the question before this court is
whether the facts, viewed in a light most favorable to Cook where disputed, show
appellants acted objectively reasonably in executing the no-knock search warrant on
July 13, 1999. See Anderson v. Creighton, 483 U.S. 635, 641 (1987) (qualified
immunity analysis does not involve inquiry into official’s subjective intent; official’s
subjective beliefs about search are deemed irrelevant).
The summary judgment evidence, viewed most favorably to Cook where
genuinely in dispute, established the following. On July 12, 1999, DTF investigators
arranged for a confidential informant (CI) to go to Cook’s residence to purchase
methamphetamine using marked bills and wearing a body wire and recording device
1
Pope County Sheriff Jay Winters is the only defendant who did not appeal the
denial of his motion for summary judgment.
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to enable investigators who were conducting surveillance nearby to monitor the
transaction. At some point, Cook was advised by Sandra Burris, with whom he
resided, that she could hear his conversation with the CI on a police scanner, after
which Cook searched the CI, who had been able to remove the body wire and
recording device, but not a piece of tape. During the ensuing hours, Cook questioned
the CI and threatened him verbally and physically with a machete or sword. Both
eventually left the premises in Cook’s vehicle, without being observed by the
surveillance team, and Cook released the CI, who contacted the investigators in the
early morning hours on July 13. Cook returned home, where he and Burris rapidly
packed and left, again undetected by law enforcement. Later in the morning on July
13, 1999, officers obtained a no-knock search warrant to look for the recording device,
the body wire, the buy money, and methamphetamine. They believed that Cook
remained at his residence, and, based on information furnished by the CI, that he was
armed and dangerous. Further, a prior search of Cook’s property had revealed
firearms hidden in a “trap wall”; Cook had a history of keeping exotic animals (e.g.,
a lion); and he had a history of refusing to submit willingly to arrest.
DTF officers and ASP SWAT team members assembled and set up a command
post near Cook’s residence, to secure the residence, to apprehend Cook, and to
execute the search warrant. After unsuccessful attempts were made to contact Cook
or someone in the residence by phone, two officers saw what appeared to be
movement in the house. SWAT team commander Swesey, believing that Cook was
in the residence and aware of the officers’ presence, ordered a “high-risk” entry. The
breaching team (Davis, Castro, and Richmond) introduced chemical agents (tear gas
or oleoresin capsicum (OC) gas) and diversionary devices (flash grenades or “flash
bangs”) into the residence in the early afternoon, through a bedroom window and a
living room window, and thereafter rammed the side door. The entry team (Webb,
Crow, Eubanks, Jester, and Alcon) then went into the residence and conducted a
protective sweep, using additional diversionary devices in some areas of the residence,
including in the attic, before concluding after about thirty minutes that no one was
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present. Some six to ten devices (OC gas and flash bangs combined) were used before
and after entry. Swesey described the residence as a “typical doper house,” meaning
it was cluttered and unkempt, with piles of clothes everywhere and dishes and food
left out. The diversionary devices had scorched some of the floors and personal
property, and at least one small fire broke out. After the SWAT team finished its
protective sweep, DTF agent Casto, Pope County Sheriff Jay Winters, and others
conducted a search of the premises. Swesey testified he did not observe a large
amount of damage aside from general disarray and a ladder stuck in the ceiling.
During the entry and search, two windows and the latches on a pair of doors
were broken. The contents of a trash can were dumped into a washing machine, and
laundered clothes were removed and left on the floor. The ceiling was damaged, some
wires were melted, and a ladder which had been used to gain access to the attic was
left protruding into the ceiling. One hole had been knocked in a wall in a closet or
storage area. Two framed family photographs had been damaged after falling off the
wall or a shelf, and several collectable dolls had been broken. Clothing piled on the
floor had been trampled, some over scorched spots on the floor. The beds in Burris’s
children’s rooms had been overturned. A personal computer had been sprayed with
foam (apparently to subdue a fire) and was destroyed. A wicker chair was destroyed
when an object went through it, and a crossbow arrow was lodged into the living room
wall. Two panels of insulation were torn off the outside of the residence where there
had been no siding. In addition, a snake survived the breach and entry of the
residence, but a ferret did not. Further, when Burris returned to the residence a week
later, she found the white dove she kept in a cage on the front porch had died, perhaps
of heat stroke, and she also found her dog lying dead in the driveway.
Chief Martin attested that he was asked to be present at Cook’s residence when
the search was executed, but he did not participate in the planning or execution of the
search warrant or the initial entry of the residence. Those defendants, including
Martin, who attested that they were not involved in searching for items further attested
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that they did not purposely or maliciously destroy any property, or observe others
doing so; other defendants attested that they were involved in searching for items, and
also attested that they did not purposely or maliciously destroy any property, or
observe others doing so.
The searching officers did not find the body wire, the buy money, firearms, or
any methamphetamine, but they did locate the recording device. Cook was
apprehended a few days later and eventually he was convicted of drug, conspiracy,
and theft offenses. See Cook v. State, 68 S.W.3d 308 (Ark. Ct. App. 2002).
We first note that Cook did not directly refute defendants' evidence that Captain
Martin was uninvolved in causing any unnecessary property damage and that Martin
had no authority to direct the actions of others. The district court concluded, however,
that there was a genuine issue of fact concerning the extent of Martin's involvement
in the search, a conclusion not reviewable on interlocutory appeal. See Johnson v.
Jones, 515 U.S. 304, 313 (1995); Walker v. City of Pine Bluff, 414 F.3d 989, 991 (8th
Cir. 2005). After our review of the record we conclude that Martin is entitled to
qualified immunity for the same reasons as the other officers alleged to have been
involved in the search.
We conclude that the law-enforcement officers, armed with a valid no-knock
search warrant, initially acted reasonably on their belief that Cook was armed and
dangerous, given the events that transpired with the CI the night before and morning
of the search, given Cook’s history of owning a lion and having significant numbers
of firearms and storing some of them within the walls in trap doors, and given that
they did not see him leave his residence. In other words, it was not “unnecessarily
destructive” and was thus reasonable for the breach and entry teams to have
introduced OC gas and flash grenades, apparently breaking two windows in the
process, before ramming a side door and thereby damaging latches. See Hummel-
Jones v. Strope, 25 F.3d 647, 650, 653 (8th Cir. 1994) (how best to proceed in
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performing search is generally left to discretion of officers executing warrant, but even
valid warrants must be executed in reasonable manner); United States v. Baker, 16
F.3d 854, 855-56 (8th Cir. 1994) (officers’ use of distraction stun device, without
knocking and announcing, was needed to effect safe entry and therefore reasonable
where officers possessed information that front door was barricaded and that two
Doberman Pinschers were inside); Ginter, 869 F.2d at 388-89 (starting fire to force
suspect, reasonably believed to be armed and dangerous murderer, out of house was
not unnecessarily destructive). Further, Cook did not refute defendants’ evidence that
once the residence was breached, it took the entry team an additional thirty minutes
to determine no one was present, and we conclude that an objectively reasonable
officer, presented with the facts of this situation, could have thought it necessary to
tear through the ceiling to access the attic, to use additional diversionary devices in
the attic, and to make a hole in one wall to be sure that no persons or weapons were
present.
With respect to any damage Cook complained of--e.g., the broken collectable
dolls, the damaged wicker chair, and the arrow lodged in the wall--even assuming in
Cook’s favor that this destruction occurred during the search, rather than during the
breach and entry sweep, we conclude that Cook failed to create a genuine issue as to
whether a reasonable officer would have known his conduct was unnecessarily
destructive, so as to violate the Fourth Amendment. First, there was unrefuted
evidence that the residence was a mess before the officers attempted entry, which
would have made it difficult for officers to conduct a thorough search without
upsetting or damaging property. Second, the amount of destruction was not so
excessive as to be inconsistent with an objectively reasonable officer’s execution of
the authorized search for the recording device, body wire, buy money, and drugs,
especially given the facts the officers knew about Cook. Third, dumping trash and
emptying closets and drawers are activities that are reasonably necessary to
conducting a thorough search for the items identified in the warrant. See DeArmon
v. Burgess, 388 F.3d 609, 610-11 (8th Cir. 2004) (affirming grant of qualified
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immunity to officers, sued under § 1983 for Fourth and Fourteenth Amendment
violations, who during the course of executing search warrant broke entry doors and
locks on interior doors, damaged drywall and furniture, and seized firearm, doorknobs
and locks, photographs, personal papers, and jewelry); Liston v. County of Riverside,
120 F.3d 965, 979 (9th Cir. 1997) (reversing, in part, grant of qualified immunity on
Fourth Amendment claim of unnecessary destructiveness, because record was unclear
whether some property damage occurred after officers learned they were in wrong
house; noting that if officers had engaged in complained-of conduct--ransacking
home, dumping garbage on floor, removing items from drawers and closets,
destroying backyard fence, and digging up backyard--before they knew they were in
wrong home, “the officers could have reasonably believed, under [existing]
precedents, that the way they conducted the search was lawful”); Tarpley v. Greene,
684 F.2d 1, 9 (D.C. Cir. 1982) (destruction of property is not, in and of itself, evidence
of unreasonableness or of Fourth Amendment violation, but destruction of property
that is not reasonably necessary to execute a search warrant effectively may violate
the Fourth Amendment); cf. San Jose Charter of Hells Angels Motorcycle Club v. City
of San Jose, 402 F.3d 962, 965-66, 974 (9th Cir. 2005) (affirming denial of qualified
immunity to officers who caused significant damage to “truckloads” of personal
property for purpose of establishing sentencing enhancement related to Hells Angels
symbols; examining totality of circumstances and holding it would be clear to
reasonable officer that his conduct was unlawful in situation he confronted because
it was not reasonably necessary to effectuate performance of officer’s duties).
With regard to the dead animals, Cook submitted no evidence suggesting that
the officers did anything intentional to harm or kill any of the pets, at least one of
which may have died because it was left unattended on the porch in a cage for a week
in July. Cf. San Jose Charter, 402 F.3d at 977-78 (killing of dogs would violate
Fourth Amendment if officer knew of presence of dogs on property and failed to
consider method of subduing them besides killing them).
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Finally, Cook’s constitutional claims arise under the Fourth rather than the
Fourteenth Amendment, see Albright v. Oliver, 510 U.S. 266, 273-74 (1994), and in
any event there is no Fourteenth Amendment violation for a deprivation of property
without due process if an adequate post-deprivation remedy is afforded by the state,
and Cook has made no showing of outrageous, conscience-shocking conduct, see
DeArmon, 388 F.3d at 611-12; Weiler v. Purkett, 137 F.3d 1047, 1051 (8th Cir. 1998)
(en banc).
Accordingly, we reverse and remand with instructions for the district court to
grant summary judgment to appellants based on qualified immunity.
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