Wilian Gomez v. William J. Fiessner

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 11-1241
WILIAN TAVERAS GOMEZ; BARBARA GOMEZ; WILFREDO RAFEAL
TAVERAS; WILIANA TAVERAS,
Appellants
v.
WILLIAM J. FEISSNER, JOHN J. SOPRANO, JOSHUA WINTERS,
GERRY GALLAGHER, JASON ZOLA, ROBERT FERDINAND, DAVID COFFMAN,
MARK ZOLA, JAMES DIXON, DARRYL LEDGER, KEVIN WAGNER, DAVID
ZAPOTOCKY, JOHN LEONARD, ROBERT ZIENTEK, WALTER MAZUR,
CHRISTOPHER OROZCO, LEONAL RAMIREZ, DANE EPPLEY,
DAVID CHRISTINO
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 3-08-cv-00619)
District Judge: Honorable A. Richard Caputo
Argued on September 20, 2011
Before: AMBRO, CHAGARES and ROTH, Circuit Judges
(Opinion filed: March 30, 2012)
Laurence E. Norton, II, Esq. (Argued)
Peter Zurich, Esq.
Community Justice Project
118 Locust Street
Harrisburg, PA 17101
Counsel for Appellants
William H. Ryan, Esq.
Acting Attorney General
Calvin R. Koons, Esq. (Argued)
Senior Deputy Attorney General
Patrick S. Cawley, Esq.
John G. Knorr, III, Esq.
Chief Deputy Attorney General
Office of the Attorney General
Appellate Litigation Section
15th Floor, Strawberry Square
Harrisburg, PA 17120
Peter J. Smith, Esq.
United States Attorney
Timothy S. Judge, Esq. (Argued)
Assistant U. S. Attorney
United States Attorney’s Office
235 N. Washington Avenue, Suite 311
Scranton, PA 18501
Counsel for Appellees
OPINION
ROTH, Circuit Judge:
Plaintiffs Wilian Taveras Gomez, Barbara Gomez, Wilfredo Taveras and Wiliana
Taveras appeal the grant of summary judgment to federal and local officers on claims that
the officers violated their constitutional rights while searching their home. We will
affirm the District Court’s judgment as to the federal officers and local officer Jason
Zola, but with respect to local officer William Feissner, we will reverse and remand to
the District Court.
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I. BACKGROUND
The Gomezes reside at 9 West Monroe Avenue in West Hazelton, Pennsylvania,
in a building that also contains another residence, 11 West Monroe Avenue. The building
contains an unusual feature - a bathroom in Number 11 has a door that opens directly into
Number 9. The Gomezes claim that this door had been sealed shut by a strip of plastic
attaching it to its frame, blocking access from one residence to the other.
In 2007, a resident of Number 11, Bienviendo Guerrero, came under the suspicion
of local police for engaging in illegal drug sales. Accordingly, defendant William
Feissner, a Corporal with the Butler Township Police and a member of the Luzerne
County Drug Task Force, obtained a search warrant for Number 11. On September 5,
2007, a team of officers including Feissner, defendant Jason Zola, a detective with the
Hazleton Police, and defendants Dane Eppley and David Christino, two federal agents
from Immigration and Customs Enforcement, executed that warrant. Zola lead the team
that initially entered and secured the building. Feissner led the group that searched for
evidence. Eppley and Christino were present to determine the immigration status of any
persons the team encountered and to serve as translators for any Spanish speakers.
As the operation began, Zola’s team entered Number 11 and secured all of its
rooms. The team eventually came to the door in the bathroom which led to the Gomezes’
residence. They perceived the other side of the door as a potential “threat area” that
needed to be secured. They allegedly kicked down the door and went through it. The
team then encountered each of the Gomezes in various rooms and placed Wilian Taveras
Gomez and Wilfredo Taveras in handcuffs. Once Zola and his team had secured both
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homes, which took five to fifteen minutes, they left the scene. Feissner and Christino
then took the Gomezes to the kitchen of Number 11, where they were held while Feissner
and his team searched for evidence.
The Gomezes allege that when Wilian Taveras Gomez asked why his home was
being searched, Christino said to Wiliana Taveras, “Tell your father to shut up or we will
put the cuffs back on him. He is not a citizen!” They further allege that officers searched
their home for three hours, detained them for that duration, and seized $605.00.
The Gomezes alleged that these actions violated their constitutional rights and
asserted a number of claims against the officers. The District Court granted the officers
summary judgment on all claims, and the Gomezes now appeal on their claims brought
under 42 U.S.C. §§ 1983 and 1981(a). We have jurisdiction pursuant to 28 U.S.C. §
1291, and our review is de novo. Knopick v. Connelly, 639 F.3d 600, 606 (3d Cir. 2011).
II. DISCUSSION
The District Court granted the officers summary judgment on the § 1983 and §
1981(a) claims on the basis of qualified immunity. Under the doctrine of qualified
immunity, government officials are shielded from civil damages liability for official
conduct as long as it “does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). A legal right is clearly established if “its contours [are] sufficiently clear that
a reasonable official would understand that what he is doing violates that right.”
Anderson v. Creighton, 483 U.S. 635, 640 (1987). The officers here are entitled to
qualified immunity, then, if (1) the rights the Gomezes claim to have been deprived of
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were not clearly established, or (2) the officers’ alleged conduct did not deprive the
Gomezes of those rights. Ray v. Twp. of Warren, 626 F.3d 170, 174 (3d Cir. 2010). We
will examine the officers’ entitlement to qualified immunity under this standard for each
claim.
A. Unreasonable Search
The Gomezes claim that their Fourth Amendment right to be free from an
unreasonable search was violated when Feissner and Zola searched their home after they
knew or should have known that it was a separate residence from Number 11. “Searches
. . . inside a home without a warrant are presumptively unreasonable.” Payton v. New
York, 445 U.S. 573, 586 (1980). Even when officers operate with a warrant, they must
exclude any areas that they know or should know the warrant does not authorize them to
search. United States v. Ritter, 416 F.3d 256, 266 (3d Cir. 2005). If they mistakenly
begin to search such an area, they must stop as soon as they are put on notice of their
error. Maryland v. Garrison, 480 U.S. 79, 87 (1987); Ritter, 416 F.3d at 266. Based on
these principles, we hold that there is a clearly established right to be free from a search
of one’s home by officers who know or should know that such a search is unauthorized.
It is undisputed that Feissner searched the Gomezes’ home even though the
warrant pursuant to which he was operating specifically authorized a search only of
Number 11. The Gomezes allege, moreover, that he should have known during his
search that their home was a separate residence from Number 11. In support of this
contention, the Gomezes’ point to Feissner’s admissions that he was aware that the
building had multiple doorways, garages, electrical boxes, and satellite dishes and that he
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had previously considered the “real possibility” that it contained multiple residences.
They further allege that, based on his observations as he walked through the building, and
particularly upon finding a second kitchen, Feissner should have realized that he had
entered a separate residence. From our review, we conclude that this account does make
out a violation of the Gomezes’ clearly established Fourth Amendment rights. Feissner
therefore does not have qualified immunity from this claim.
The Gomezes allege that Zola entered their home as part of his effort to secure the
building. They concede that this was legal and that Zola was permitted to conduct a
protective sweep of their home. They claim that this sweep lasted five to fifteen minutes
and that at the conclusion of that period, Zola departed. They do not allege that Zola
searched their home for evidence. The Gomezes thus accuse Zola of legally entering
their home, conducting an appropriate protective sweep, and then leaving. These
allegations fail to establish that Zola violated the Gomezes’ right to be free from an
unreasonable search, and he thus possesses qualified immunity from this claim.
B. Unreasonable Seizure
The Gomezes also claim that Feissner and Zola violated their right to be free from
unreasonable seizure by detaining them for three hours during the search of their home.
A “seizure” occurs when a government officer, “by means of physical force or show of
authority . . . restrains the liberty of a citizen.” Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968).
Under clearly established Supreme Court precedent, it is reasonable for officers to seize
the occupants of a home while conducting a constitutionally valid search thereof.
Michigan v. Summers, 452 U.S. 692, 705 (1981). But this is true only for the duration of
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the search. When the search if completed, the authority expires. Id. Moreover, under
Garrison, it is clearly established that once officers know or should know that they are
without authority to continue a seizure, they must end it.
The Gomezes allege that Feissner should have known after fifteen minutes that he
had no authority to search their home. It is undisputed that for three hours beyond this
point, the Gomezes were involuntarily detained by either Feissner or officers under his
command. These allegations suffice to make out a violation of the Gomezes’ clearly
established right to be free from unreasonable seizure, and Feissner accordingly does not
have qualified immunity from this claim.
As for Zola, the Gomezes allege that he was present only until the conclusion of
the protective sweep of their home. Thus, he cannot be held responsible for their three
hour detention during the subsequent search for evidence. Given the Gomezes’
concession that the protective sweep was a legal search, any seizures during that sweep
would be valid under Summers. Zola thus has qualified immunity from this claim.
C. Unreasonable Seizure of Property
Wilian Taveras Gomez claims that the confiscation of $605.00 in cash from his
dresser violated his Fourth Amendment right to be free from unreasonable seizure. A
“seizure” of property occurs when “there is some meaningful interference with an
individual’s possessory interests in that property.” United States v. Jacobsen, 466 U.S.
109, 113 (1984). Subject to a limited number of exceptions not at issue here, “a seizure
of personal property [is] per se unreasonable . . . unless it is accomplished pursuant to a
judicial warrant issued upon probable cause and particularly describing the items to be
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seized.” United States v. Place, 462 U.S. 696, 701 (1983). Under Garrison, officers who
know or should know that these requirements are not met must abstain from seizing
personal property. An officer who fails to adhere to this requirement violates the
property owner’s clearly established Fourth Amendment right to be free from
unreasonable seizure.
Wilian Taveras Gomez alleges that Feissner searched the Gomez home after he
should have known that he had no warrant to do so, and it is undisputed that he seized
$605.00 from Wilian Taveras Gomez’s dresser during that search. This account is
sufficient to state a claim that Feissner violated his Fourth Amendment right to be free
from unreasonable seizure, and Feissner therefore does not have qualified immunity from
this claim. Because, however, there is no allegation that Zola seized any property, he
does have qualified immunity.
D. Equal Protection
Wilian Taveras Gomez claims that Eppley and Christino violated his constitutional
right to equal protection when Christino said to his daughter, “Tell your father to shut up
or we will put the cuffs back on him. He is not a citizen!” To state a valid equal
protection claim, a plaintiff must allege that he “receiv[ed] different treatment from that
received by other individuals similarly situated.” Kuhar v.Greensburg-Salem Sch. Dist.,
616 F.2d 676, 677 n.1 (3d Cir. 1980). Because Wilian Taveras Gomez does not allege
that either Eppley or Christino treated him differently from any similarly situated
individuals that actually existed, he fails to state a valid equal protection claim against
them. The federal agents are thus entitled to qualified immunity on this claim.
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III. CONCLUSION
For the reasons stated above, we will affirm the District Court’s grant of summary
judgment as to Zola, Eppley, and Christino but will reverse as to Feissner and remand
this case for further proceedings.
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