Kathy Bonds v. C.W. Cox H.J. Harris and D.R. Aldridge ( 1994 )

BOYCE F. MARTIN, JR., Circuit Judge.

Kathy Bonds appeals the district court’s grant of summary judgment for defendant police officers in this action, brought pursuant to 42 U.S.C. § 1983, for violations of rights protected by the Fourth and Fourteenth Amendments to the United States Constitution. The district court found that Bonds did not have standing to assert these constitutional violations becausé she lacked a reasonable expectation of privacy in premises searched pursuant to a warrant. Although we agree that Bonds lacks standing on this ground, we believe that she has standing to challenge the manner in which the search was conducted because her property was seized within the meaning of the Fourth Amendment. For the following reasons, we reverse the judgment of the district court.

On February 6, 1991, police officers executed a search warrant at 4174 Dunn Avenue in Memphis, .Tennessee. The warrant, in addition to identifying the premises to be searched, also described a white male, five feet six inches tall, weighing two hundred and thirty pounds, with a dark beard. This individual and a white female were identified as being suspected of possessing marijuana. Upon executing the warrant, the police discovered a marijuana pipe and other drug paraphernalia.

Bonds is the owner of'the property at 4174 Dunn Avenue. According to the first of her two affidavits, however, she has not lived there since July 1990, when she began staying at her son’s house in Horn Lake, Mississippi. Bonds stated that her house at 4174 Dunn Avenue was completely unoccupied from July 1990 through February 6, 1991, and that she granted permission only to her son and his fiancee to,enter the premises during that time. Bonds further stated in her initial affidavit that she had “never seen any such person” meeting the description of the man identified in the search warrant, and that such a person had never been at her home.

Bonds filed this action on February 4, 1992, alleging that the defendant police officers did more than $20,000 worth of damage to her house due to gross negligence in executing the warrant. She also asserted that the officers knowingly relied on false information in securing the warrant. The defendants moved for summary judgment on two grounds: (1) qualified immunity; and (2) failure to state a Section 1983 claim, because the search warrant was legally sufficient and Bonds failed to show more than ordinary negligence in the performance of the officers’ duties. In their reply to Bonds’ subsequent memorandum in opposition to summary judgment, the defendants raised a standing issue in a single sentence: “It would appear that Mr. Basham, and not the plaintiff, would be the person with standing to bring this action.” Along with their reply memorandum, the defendants submitted affidavits containing the following uncontroverted facts: (1) on May 31, 1989, the utilities at 4174 Dunn Avenue were turned on in the name of Irey Basham, Jr.; (2) the subsequent utility usage at 4174 Dunii Avenue was consistent with that of an occupied residence until at least March 1992; (3) Basham’s driver’s license, issued on June 20, 1989, listed 4174 Dunn Avenue as his residence as of April 1992; and (4) Basham’s license shows that he is a white male, five feet six inches tall, with a dark beard and blue eyes.

The district court found that the treatment of the standing issue in defendants’ reply memorandum was sufficient to put Bonds on notice that the issue was contested, and observed that Bonds failed to adduce any evidence to rebut the government’s standing argument for more than five months after the filing of the memorandum. The district court therefore granted summary judgment for the defendants on the ground that Bonds lacked standing.

Shortly thereafter, Bonds filed a motion to alter or amend judgment under Federal Rule of Civil Procedure 59(e). In this motion, Bonds contended that the standing issue was not properly raised before the court and, in the alternative, that she did have standing to raise her claims. Bonds supplied two additional affidavits to the court, from her and Irey Basham, in support of her motion. These affidavits stated that Bonds considered Irey Basham to be almost her child, that Bonds had the utilities at 4174 Dunn Avenue turned on in Basham’s name, that Basham had not lived at 4174 Dunn Avenue since 1989, and that the utility usage remained consistent with that of an occupied house because Bonds left the lights, air conditioning, television, and water on for “occasional” use and to deter burglars. The district court denied Bonds’ motion to alter or amend judgment, and Bonds filed this timely appeal.

Bonds argues that the district court erred in granting summary judgment for the defendants because: (1) she did not have proper notice of the standing issue; (2) she had standing based upon her reasonable expectation of privacy in the premises; (3) she had standing based on the unreasonable execution of the search warrant; and (4) she adduced evidence which created a genuine issue of material fact as to her standing.

First, we address whether Bonds had proper notice of the standing issue. As the district court observed, defendants raised this issue in their reply to Bonds’ memorandum in opposition to summary judgment. Under Federal Rule of Civil Procedure 56(c), the court was authorized to consider “all pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits” in order to determine whether summary judgment was appropriate. Therefore, the standing issue was properly before the district court. We also note that Bonds had ample time to file supporting evidence on this issue after defendants submitted their affidavits and before the district court’s grant of summary judgment. Accordingly, we believe that Bonds had proper notice that the question of her standing was to be litigated.'

We now turn to the merits of the court’s decision to grant summary judgment. Summary judgment is appropriate if “the-record taken as a whole could not lead a rational trier of fact to find for the nonmoving party[.]” Matsushita Electronic Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1848, 1356, 89 L.Ed.2d 538 (1986). The nonmoving party must “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). In determining whether there is a genuine issue for trial, we must draw all reasonable inferences from the facts in the light most favorable to Bonds, as the nonmoving party. Matsushita, 475 U.S. at 587, 106 S.Ct. at. 1356. For these purposes we consider only the pleadings, the evidence submitted by the defendant, and the first affidavit submitted by Bonds, as Bonds’ subsequent affidavits were not tendered to the court until her Rule 59(e) motion was filed.

In granting summary judgment on the ground that Bonds had no standing because she lacked a reasonable expectation of privacy in the house, the district court correctly observed that Bonds did not submit any rebuttal evidence to contradict the affidavits and physical evidence supplied by the defendants. The defendants’ evidence showed that Basham was apparently living at 4174 Dunn Avenue. Although Bonds owns this property, that fact alone is insufficient to confer standing to contest the search. As the Supreme Court has observed, “[w]hile property ownership is clearly a factor to be considered in determining whether an individual’s Fourth Amendment rights have been violated, property rights are neither the beginning nor the end” of such an inquiry. United States v. Salvucci, 448 U.S. 83, 91, 100 S.Ct. 2547, 2552, 65 L.Ed.2d 619 (1980) (citation omitted). Instead, Bonds has the burden of satisfying a two-part test: (1) did she manifest a subjective expectation of privacy in the premises searched; and (2) is society prepared to recognize that expectation as legitimate. California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 1811, 90 L.Ed.2d 210 (1986); Rakas v. Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 428, 58 L.Ed.2d 387 (1978). Bonds’ Fourth Amendment claim is personal, and may not be asserted vicariously. Rakas, 439 U.S. at 133-34, 99 S.Ct. at 424-25.

Under these standards, Bonds has failed to establish that she had a reasonable expectation of privacy in the house at 4174 Dunn Avenue. In paragraph V of her complaint, Bonds alleges that “at the relevant time, Plaintiff was temporarily residing with her son in Mississippi, and there was no one occupying the premises.” Joint Appendix at 44 (emphasis added). Additionally, Bonds stated in her initial affidavit that:

“Continuously from July,. 1990 through February 6, 1991, my home was completely unoccupied and was locked up. The only time anyone would ever go on the premises would be for the purpose of feeding the dogs. The person who fed the dogs was my son’s fiancee, though on rare occasions, my son would also go on the premises to feed the dogs.”

J.A. at 38 (emphasis added). These statements clearly show that Bonds was not occupying the house during the relevant time period. In contrast, the defendants’ unre-butted evidence shows that Basham was living at Bonds’ home during this time. By allowing Basham to live at the house while she lived in Mississippi, Bonds failed to manifest a subjective expectation of privacy in the premises. Accordingly, Bonds does not have standing to contest the search by the officers. See United States v. Dyar, 574 F.2d 1385, 1390 (5th Cir.), cert. denied, 439 U.S. 982, 99 S.Ct. 570, 58 L.Ed.2d 653 (1978) (defendants with leasehold interest in aircraft lacked standing to challenge search where possession of the aircraft was given to another individual).

Bonds, however, also contends that she has standing based on the unreasonable execution of the search warrant, because the officers “seized” her property within the meaning of the Fourth Amendment when they conducted their search. We agree. A “seizure” of property occurs when “there is some meaningful interference; with an individual’s possessory interests in that property.” Soldal v. Cook County, — U.S. -, -, 113 S.Ct. 538, 543, 121 L.Ed.2d 450 (1992) (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984)). The damage to Bonds’ house, which included broken doors, mutilated vinyl siding, a cracked commode, holes in walls, broken dishes, and trampled personal belongings, clearly rises to the level of a “meaningful interference” with her possesso-ry interests. See Jacobsen, 466 U.S. at 124-25, 104 S.Ct. at 1662 (destruction of a quantity of cocaine during testing constituted a seizure, because test affected defendant’s possessory interests). The Fourth Amendment protects against a seizure of property even if it occurs in a context in which privacy or liberty interests are not implicated. Soldal, — U.S. at -, 113 S.Ct. at 545. Thus, our finding that Bonds had no reasonable expectation of privacy in the house at 4174 Dunn Avenue does not affect our conclusion that Bonds has standing to challenge the seizure of her property.

Although we have found that Bonds has standing to assert her property damage claim, we must still address the question of whether the Fourth Amendment is an appropriate vehicle for asserting that claim. In Miller v. Kunze, 1988 WL 138916, *5, 1988 U.S.App. LEXIS 17644, *14 (6th Cir. Dec. 28, 1988) (per curiam), this Court stated:

Even if we were to conclude that plaintiffs had standing, we believe that the plaintiffs’ monetary loss occasioned by the police officers’ legitimate efforts to ensure public safety should be redressed through appropriate state tort and common-law remedies or, if these are inadequate, under the Fifth Amendment or the due process clause, rather than the Fourth Amendment.

This position, however, was subsequently rejected by the Supreme Court in Soldal. In reversing a similar Seventh Circuit holding, the Court observed:

The Court of Appeals also stated that even if, contrary to its previous rulings, “there is some element or tincture of a Fourth Amendment seizure, it cannot carry the day for the Soldáis.” ... [T]he court reasoned that it should look at the “dominant character of the conduct challenged in a section 1983 case [to] determine the constitutional standard under which it is evaluated.” Believing that the Soldáis’ claim was more akin to a challenge against the' deprivation of property without due process of law than against an unreasonable seizure, the court concluded that they should not be allowed to bring their suit under the guise of the Fourth Amendment.

But we see no basis for doling out constitutional protections in such a fashion. Certain wrongs affect more than a single right and, accordingly, can implicate more than one of the Constitution’s commands.

Soldal, — U.S. at -, 113 S.Ct. at 548 (citations omitted). Applying this principle to the case at bar, we conclude that Bonds may assert her property damage claim under the Fourth Amendment.

Finally, we consider Bonds’ claim that the district court improperly denied her motion to alter or amend its grant of summary judgment. Bonds asserts that the additional affidavits that she submitted along with her motion show that there is a genuine issue of material fact with respect to whether Basham was residing at 4174 Dunn Avenue. As a result, she maintains, the district court should have reconsidered its grant of summary judgment on the ground that she lacked a reasonable expectation of privacy in the premises. The unsworn affidavits, however, were technically deficient and should not be considered in making this determination. Unsworn declarations are permitted to be used as evidence only if “subscribed ... as true under penalty of perjury, and dated [.]” 28 U.S.C. § 1746 (emphasis added). Although Bonds’ additional affidavits were subscribed under penalty of perjury, they were undated. Given the explicit language of the statute, they must therefore be excluded from consideration.

We note that, even if we were to consider these technically deficient affidavits, Bonds’ argument must fail. The additional affidavits do not present concrete facts that rebut defendants’ evidence, and they are also materially inconsistent with Bonds’ initial affidavit. Bonds’ assertions in the first affidavit that she had never seen anyone of Bas-ham’s physical description, and that such a person had never been in her house, are hard to reconcile with her assertions in the second that Basham had lived with her and was “almost like a child” to her. Bonds’ statements in the second affidavit regarding utility usage and other activities at 4174 Dunn Avenue are also inconsistent with her statement in the first that the premises were locked and “completely unoccupied.” It is indeed difficult, under these circumstances, to determine how to consider the evidence in the light most favorable to Bonds when her own allegations regarding the crucial issues of fact are in direct conflict. We do not believe that the standard of review for summary judgment described in Matsushita requires us to ignore a party’s own conflicting statements in construing the facts to her best advantage. See Gagne v. Northwestern National Insurance Co., 881 F.2d 309, 315 (6th Cir.1989) (“a party may not create a factual issue by filing an affidavit, after a motion for summary judgment has been made, which contradicts his earlier deposition testimony”) (quoting Reid v. Sears, Roebuck & Co., 790 F.2d 453, 460 (6th Cir.1986)).

For the foregoing reasons, while Kathy Bonds has no remedy or standing to challenge the search on a reasonable expectation of privacy basis, she does have standing to assert a claim for property damages as a result of the seizure under the Fourth Amendment. We therefore reverse the judgment of the district court and remand the ease for resolution of this issue.