Kalmas v. Wagner , 133 Wash. 2d 210 ( 1997 )

Johnson, J.

— Two deputy sheriffs were sued under 42 U.S.C. § 1983 after one of them accompanied a property manager into a residence at the request of the tenant. The Court of Appeals reversed the trial court’s dismissal of the suit. We reverse the Court of Appeals and hold there was no unreasonable search and, therefore, no constitutional violation on which to base a civil rights action.

FACTS

Plaintiffs James Kalmas and Kyra Sharpe signed a home rental agreement in September 1990, and initialed a "right to enter” provision contained in that agreement. This provision stated: "Lessor hereby reserves, and the Lessee hereby grants to the Lessor or his agents, the right to enter said leased premises at reasonable times, for the purpose of making repairs or to inspect the premises, to show the dwelling to prospective tenants after notice of termination.” Clerk’s Papers at 36.

On May 10, 1991, a notice to terminate tenancy on May 31 was sent to Kalmas and Sharpe. On May 15, Marilyn Kay Russi, the property manager, served notice on Kalmas and Sharpe, informing them the residence would be shown by a real estate agent the following day, May 16, between 1:30 and 3:30 p.m.

The following day, at approximately 1:30 p.m., Russi arrived at the residence with a real estate agent, a prospective tenant/purchaser, and a fellow employee. Kalmas came out of the house, closed the door behind him, and told everyone they could not enter. Kalmas then told the group they would be breaking the law if they entered, he would sue them for breaking and entering and burglary, and he had called the police and fire departments to have them all arrested. According to Russi, Kalmas was extremely foul mouthed and rude. Russi reminded Kalmas of the notice he received and explained that under the Landlord-Tenant Act, they were entitled to enter. Kalmas continued to refuse entry, so Russi prepared a "Notice of Violation of RCW 59.18.150 — Denial of Entry” form.

Meanwhile, Kyra Sharpe had called 911 and requested assistance. The real estate agent and his client left. A fire department official arrived at the scene and then also left after a short discussion regarding a hole in the ground. The police arrived.

Two deputy sheriffs, Donald Wagner and James Jones, arrived within a few minutes of one another. According to Wagner, Kalmas was yelling, screaming, and arguing with the two women when he arrived at the residence. Wagner spoke with the women, who explained the circumstances and showed him the paperwork regarding their entry of the residence. Wagner told Kalmas the paperwork appeared to be in order, and Kalmas admitted he had received notice, but he continued to deny entry to those present. The officers explained to Kalmas he did not have the legal right to bar entry if he had been given 24-hours’ notice, and, according to Kalmas, the officers threatened to arrest him if he did not permit entry to the residence. Kalmas then agreed that the two women could enter the residence as long as one of the officers accompanied them to prevent any potential theft or damage. Kalmas stepped aside, and the two women, accompanied by Deputy Jones, entered the residence. The three were inside for less than one minute.

Both officers state their purpose was to keep the peace and prevent any kind of confrontation between the parties. Both women state they feared for their safety had the officer not accompanied them.

Kalmas and Sharpe filed a 42 U.S.C. § 1983 action against the officers.¹ Both parties moved for summary judgment, and the trial court granted the officers’ motion and dismissed the suit. The Court of Appeals reversed and remanded. Kalmas v. Wagner, 82 Wn. App. 105, 915 P.2d 546 (1996).

ANALYSIS

An appellate court reviews summary judgment decisions de novo, engaging in the same inquiry as the trial court, and viewing facts in a light most favorable to the nonmoving party. Hartley v. State, 103 Wn.2d 768, 774, 698 P.2d 77 (1985). If reasonable minds can reach different conclusions, summary judgment is improper. Chelan County Sheriffs’ Ass’n v. Chelan County, 109 Wn.2d 282, 294-95, 745 P.2d 1 (1987).

To establish a cause of action under 42 U.S.C. § 1983,² a plaintiff must show (1) the defendant violated a federal constitutional or statutory right, and (2) the defendant acted under color of state law. Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed 2d 662 (1986); Sintra, Inc. v. City of Seattle, 119 Wn.2d 1, 11, 829 P.2d 765 (1992). A plaintiff who proves these elements is entitled to at least nominal damages. Farrar v. Hobby, 506 U.S. 103, 112, 113 S. Ct. 566, 121 L. Ed. 2d 494 (1992).

Kalmas brings his § 1983 action based on an alleged violation of his Fourth Amendment rights, which, he asserts, occurred with the entry of the officers and property manager into his rented residence. The Fourth Amendment provides in part: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” A search and seizure that violates the Fourth Amendment is actionable under 42 U.S.C. § 1983. Soldal v. Cook County, 506 U.S. 56, 113 S. Ct. 538, 121 L. Ed. 2d 450 (1992); Hocker v. Woody, 95 Wn.2d 822, 824, 631 P.2d 372 (1981).

Under the Fourth Amendment, a search occurs if the government intrudes upon a subjective and reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 351-52, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); State v. Young, 123 Wn.2d 173, 181, 867 P.2d 593 (1994). By its terms, it is violated only by searches that are unreasonable. A tenant has a reasonable expectation of privacy in the interior of the residence, City of Seattle v. McCready, 124 Wn.2d 300, 304, 877 P.2d 686 (1994) (citing Chapman v. United States, 365 U.S. 610, 616-17, 81 S. Ct. 776, 5 L. Ed. 2d 828 (1961)), however, the Fourth Amendment applies only to actions of governmental officials, and not to private conduct. United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984). Thus, Kalmas, in order to establish a Fourth Amendment violation, must prove either (1) Deputies Jones and Wagner conducted an unreasonable search, or (2) Russi and her assistant’s entry into the residence constituted state action amounting to an unreasonable search.

We turn first to the question of whether Deputies Wagner and Jones conducted an unreasonable search for purposes of the Fourth Amendment. Under 42 U.S.C. § 1983, officers are liable for unlawful searches and seizures. Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961); Hocker, 95 Wn.2d at 824. Kalmas and Sharpe, as tenants, have a reasonable expectation of privacy against government intrusion into their residence. Assuming for purposes of argument that a jury could find the brief, invited entry of the deputy into the residence constituted a search, we must then ask whether this "search” was unreasonable.

Whether an encounter made for noncriminal non-investigatory purposes is reasonable depends on a balancing of the individual’s interest in freedom from police interference against the public’s interest in having the police perform a "community caretaking function.” State v. Mennegar, 114 Wn.2d 304, 313, 787 P.2d 1347 (1990). Here, Plaintiffs themselves asked the police to perform a caretaking function. Sharpe called 911 asking for police assistance, and Kalmas asked the deputy to accompany the property manager and her assistant into the dwelling to guard against any possible theft or damage. Deputy Jones then entered the residence for less than one minute. Nothing was disturbed, no evidence was seized, no one was hurt. Under these circumstances, where a plaintiff invites a deputy into his residence in order to perform a caretaking function, we cannot find that an unreasonable search occurred.

Kalmas also argues his Fourth Amendment rights were violated when Russi and her assistant entered the residence. Kalmas relies on Specht v. Jensen, 832 F.2d 1516 (10th Cir. 1987) for the proposition that when an officer facilitates a search by a private party, a Fourth Amendment violation occurs. In Specht, the plaintiffs successfully brought a § 1983 claim against police officers for damages arising from an alleged unlawful search of their home and office. Jacobs, a private citizen, had a state court order of possession for a computer and a writ of assistance directing any sheriff to assist with obtaining the computer. Jacobs, with the police, entered Specht’s office to search for the computer. They entered Specht’s office, opening doors to do so, and used a flashlight to look into corners. After not finding the computer at that location, Jacobs and the police went to Specht’s residence. Mrs. Specht invited one of the officers into her home and Jacobs, along with three others, entered as well. Jacobs stated he had a search warrant to seize a stolen computer, and one of the officers told Mrs. Specht if she obstructed Jacobs or did not cooperate, she would be arrested and imprisoned. The officer also told her she had no right to call her lawyer unless Jacobs agreed to the call. The men were at the home for approximately 30 to 40 minutes. Specht, 832 F.2d at 1519-20.

The court stated the test for finding a Fourth Amendment violation when police participate in searches undertaken by private individuals as follows: "When a government official affirmatively facilitates or encourages an unreasonable search performed by a private person, a constitutional violation occurs.” Specht, 832 F.2d at 1523. Because the officers had driven a police car to the office building, an officer asked for the key to the building, an officer threatened to take Mrs. Specht to jail, and an officer told Mrs. Specht she could not call her lawyer without Jacobs’ consent, the court found sufficient evidence of participation by the officers in order to support liability under § 1983.

In the case at hand, the government officials did not affirmatively facilitate or encourage an unreasonable search performed by a private person. Even if we assume Russi and her assistant conducted an unreasonable search, the conduct of Deputies Wagner and Jones does not rise to the level of an affirmative facilitation or encouragement of that search. The deputies’ conduct was much different from that of the officers in Specht. The same close nexus between the police and a private individual is not present here. Deputies Wagner and Jones were summoned by Kalmas himself, and were not called upon by the property manager. The only entrance into the residence was at Kalmas’ request. The deputies did not initiate the property manager’s actions. Any interest Wagner and Jones had in the relationship between Kalmas and Russi was merely a peacekeeping interest. Also, the threat to arrest in this case arose out of a situation in which Kalmas was behaving in an unruly fashion. An officer may arrest one who breaches the peace or threatens to do so. Pavish v. Meyers, 129 Wash. 605, 607, 225 P. 633, 34 A.L.R. 561 (1924).

We, therefore, conclude the conduct of Deputies Wagner and Jones did not form the requisite nexus with the conduct of Russi and her assistant in order to affirmatively facilitate or encourage an unreasonable search. Even more to the point, however, we hold Russi and her assistant did not conduct an unreasonable search.

Although it is well established that a tenant has a reasonable expectation of privacy in his or her residence against any government intrusion, we now inquire whether that same tenant has a reasonable expectation of privacy against a property manager and her assistant when the landlord has taken proper steps under the Landlord-Tenant Act to exhibit the premises to a potential tenant or buyer.

The statute at issue in this case provides, in pertinent part:

(1) The tenant shall not unreasonably withhold consent to the landlord to enter into the dwelling unit in order to . . . exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workers, or contractors.

(3) The landlord shall not abuse the right of access or use it to harass the tenant. Except in the case of emergency or if it is impracticable to do so, the landlord shall give the tenant at least two days’ notice of his or her intent to enter and shall enter only at reasonable times. The tenant shall not unreasonably withhold consent to the landlord to enter the dwelling unit at a specified time where the landlord has given at least one day’s notice of intent to enter to exhibit the dwelling unit to prospective or actual purchasers or tenants ....

(4) The landlord has no other right of access except by court order, arbitrator or by consent of the tenant.

(5) A landlord or tenant who continues to violate this section after being served with one written notification alleging in good faith violations of this section listing the date and time of the violation shall be liable for up to one hundred dollars for each violation after receipt of the notice ....

RCW 59.18.150.

This statute gives a landlord a limited right to invade the privacy of a tenant in his or her residence for limited purposes, one of which is to exhibit the dwelling. The rental agreement signed by the Plaintiffs contains similar provisions. If the scope of the entrance does not exceed these purposes, no unreasonable search occurs. We would agree if the property manager exceeded the limited scope permitted, a cause of action would arise. Here, however, no evidence is presented showing anything other than a brief entrance and a brief look at the interior of the residence. Nothing else occurred, was disturbed, was taken, or was damaged. Under the statute, in order to exhibit the dwelling, the landlord must provide one day’s notice to the tenant. Russi provided the requisite statutory notice in this case. Thus, we hold when proper notice was given for entry, Kalmas and Sharpe had no reasonable expectation other than that entry for inspection would occur.

Because we find that no violation of the Fourth Amendment occurred, we need not address the parties’ arguments regarding the under color of law requirement for 42 U.S.C. § 1983, or qualified immunity. We reverse the Court of Appeals.

Durham, C.J., and Dolliver, Smith, Guy, and Talmadge, JJ., concur.

1 Neither party has included the complaint in the record on appeal. Plaintiffs stated during the Court of Appeals oral argument that the complaint also contained charges of trespass and state constitutional violations. Plaintiffs explicitly abandoned the trespass charge.

2 42 U.S.C. § 1983 provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”