Edens v. Kennedy

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ROMIE R. EDENS, JR., 
Plaintiff-Appellant,
v.
GEORGE L. KENNEDY, individually  No. 03-2108
and/or in his capacity as a Senior
Trooper for the West Virginia State
Police,
Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, District Judge.
(CA-01-933-2)
Argued: May 4, 2004
Decided: August 4, 2004
Before WILKINS, Chief Judge, MOTZ, Circuit Judge, and
C. Arlen BEAM, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit,
sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Peter Michael Suwak, Washington, Pennsylvania, for
Appellant. Michael Deering Mullins, STEPTOE & JOHNSON,
2 EDENS v. KENNEDY
Charleston, West Virginia, for Appellee. ON BRIEF: Ancil G.
Ramey, Jeffrey K. Phillips, STEPTOE & JOHNSON, Charleston,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
This appeal arises from a suit filed by Appellant Romie R. Edens,
Jr. pursuant to 42 U.S.C.A. § 1983 (West 2003). Edens alleges that
Appellee George L. Kennedy, a West Virginia State Trooper, twice
violated Edens’ Fourth Amendment rights by trespassing on his prop-
erty, once with no warrant and once with an invalid warrant. Edens
further alleges that Kennedy chilled Edens’ exercise of First Amend-
ment rights by filing a report accusing him of illegal activities after
he told a reporter about Kennedy’s alleged misconduct.
The district court granted summary judgment to Kennedy on all
claims. We affirm.
I. Introduction
The facts of this case are intensely disputed. In general, Edens
alleges that Kennedy violated his constitutional rights as a result of
Kennedy’s association with Carney Wright, a neighbor of Edens’ who
works for the local prosecutor; Wright has had a long-running dispute
with Edens stemming from an attack by Wright’s dog against Edens’
wife’s dog. Kennedy replies that he does not know Wright and that
his actions were normal police practices that did not infringe Edens’
rights. More detailed descriptions of the evidence will accompany the
discussion of each of Edens’ claims.
On appeal from the grant of summary judgment, we view the evi-
dence in the light most favorable to Edens, the nonmoving party. See
EDENS v. KENNEDY 3
Figgie Int’l, Inc. v. Destileria Serralles, Inc., 190 F.3d 252, 255 (4th
Cir. 1999). Summary judgment is appropriate "if the pleadings, depo-
sitions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment
as a matter of law." Fed. R. Civ. P. 56(c). Our review is de novo. See
Edelman v. Lynchburg College, 300 F.3d 400, 404 (4th Cir. 2002).
Also relevant in this appeal is the doctrine of qualified immunity,
which shields government officials from liability for conduct that
"does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known." Wilson v. Layne,
526 U.S. 603, 609 (1999) (internal quotation marks omitted). "A court
evaluating a claim of qualified immunity must first determine whether
the plaintiff has alleged the deprivation of an actual constitutional
right at all, and if so, proceed to determine whether that right was
clearly established at the time of the alleged violation." Id. (internal
quotation marks omitted).
II. Kennedy’s First Entry onto Edens’ Property
On October 6, 1999, Kennedy obtained a search warrant for Edens’
home. In his warrant application, Kennedy alleged that he had seized
marijuana plants from Edens’ front doorstep earlier that day. Edens
alleges that the entry onto his property described in the warrant appli-
cation was unconstitutional. We hold that this entry may have been
unlawful but that Kennedy is entitled to qualified immunity. Accord-
ingly, we affirm the entry of summary judgment against Edens on this
claim.
A. Facts
Edens’ house is located on a narrow, rural road. There is a fence
around the front, back, and left side of the house (as one faces the
front of the house); on the right side of the house, there is no fence,
but the lot is densely wooded. The fence does not obscure the view
of the home from the road, both because its rails are separated by
wide gaps (as are the fenceposts) and because the house is located on
a hill.
4 EDENS v. KENNEDY
Where the fence crosses the driveway, to the left of the house, there
is a gate wide enough to admit a vehicle. The gate is kept locked, and
the fencepost next to the gate is marked with a sign that Edens charac-
terized as a "No Trespassing" sign. J.A. 160a. Edens also testified that
several other "No Trespassing" signs are displayed on his property.
Edens acknowledged, however, that his signs frequently fall down.
Kennedy testified that when he went to Edens’ house he saw that the
gate was locked but did not notice any "No Trespassing" signs.
The fence in front of the house is not quite flush with the woods
to the right of the house. Instead, there is a gap approximately four
feet wide between the fence and woods; this gap is near the road that
runs in front of Edens’ home. Edens attempts to cover this gap with
a wooden pallet in order to prevent the escape of cattle he keeps on
his property, but the pallet often falls over. According to his deposi-
tion testimony, Kennedy entered the property through the gap
between the fence and the woods. He could not recall seeing the pallet
at the time.
Kennedy testified that he went to Edens’ house in response to an
anonymous tip. According to Kennedy, the tipster said that
he worked for the power company and that he had installed
a meter base or a meter box . . . at a place the day prior and
that he’d seen marijuana plants . . . outside the residence or
in portable pots, something of that nature.
....
He then went into detail that . . . several marijuana plants
. . . were in portable containers outside the residence. And
then he went on to say that he actually knew the homeowner
and that the homeowner was growing them indoors and was
carrying them outside during the day for sunlight . . . .
Id. at 345a-46a. The tipster also provided Kennedy with Edens’
address and a description of his house.
Kennedy recounted at his deposition that he and another officer,
Donald Frye, responded to this tip by going to the address provided
EDENS v. KENNEDY 5
by the tipster. After confirming that the property matched the tipster’s
description, Kennedy parked his vehicle by the side of the road.
While Frye waited in the vehicle, Kennedy walked through the gap
between the fence and the woods and went to the front door of the
house to "talk to the homeowner." Id. at 370a. Acknowledging that
he did not have probable cause at that time, Kennedy said his intent
was to ask the homeowner for consent to search the home.
When Kennedy got to the front door, he saw a flowerpot containing
five or six marijuana plants. After finding this flowerpot, he knocked
on the front door but got no response. He then went to the back and
knocked on the door there, but he again received no response. While
in back of the house, Kennedy did not see the marijuana plants that
had been described by the tipster. He did, however, observe that the
windows of the home were covered with plywood, which he was
aware was a common practice among marijuana growers. According
to his testimony, Kennedy left the premises after receiving no answer
to his knocks, taking the flowerpot and its contents with him.1
B. Analysis
Edens claims that the entry onto his property was unlawful because
(1) Kennedy should have investigated the tip more thoroughly before
intruding on Edens’ property; (2) Kennedy’s entry to "talk to the
homeowner" was really a pretext for searching the curtilage around
Edens’ home; and (3) even if Kennedy genuinely intended to knock
and ask permission to search the interior of the home, rather than to
search the exterior without consent, the entry onto Edens’ property
was impermissible in light of Edens’ clear intent to exclude strangers
from his premises. We hold that the district court properly granted
summary judgment on these claims.
1
Kennedy testified that he brought the flowerpot back to his office,
submitted its contents for testing, and discarded the pot itself. One linger-
ing question about this pot concerns its color: Kennedy described it as
"lime green" in his search warrant affidavit, id. at 861a; then said in a
subsequent report that it was "blue in color," id. at 948a; and then testi-
fied in his deposition that "the color of the flower pot was actually a
bluish-green, lime green. It was turquoise. I don’t know." Id. at 370a-
71a. Edens mentions these matters in his brief but apparently does not
rely on them to support any of his appellate claims.
6 EDENS v. KENNEDY
Before addressing Edens’ individual arguments, we note that Edens
has questioned whether the initial entry onto his property even
occurred. His allegations, if true, would lend considerable support to
the Fourth Amendment claim discussed in Part III but would obliter-
ate this claim. We will therefore assume for purposes of this claim
that Kennedy in fact went to Edens’ house and walked on Edens’
property before obtaining a search warrant. We will discuss Edens’
allegations to the contrary in Part III.
1.
Edens urges that Kennedy could have evaluated the veracity of the
anonymous tip without encroaching on Edens’ property—for exam-
ple, by checking whether the power company had in fact serviced
Edens’ home or by conducting a helicopter flyover of the property
(which was done by Frye after he and Kennedy visited Edens’ prop-
erty). The Fourth Amendment, however, does not require police offi-
cers to employ the "least intrusive means" of conducting their
investigations. Bd. of Educ. v. Earls, 536 U.S. 822, 837 (2002). Thus,
if it was otherwise lawful for Kennedy to enter Edens’ premises, the
fact that he could have followed up on the tip in some other manner
does not render the entry unconstitutional.
2.
Edens’ second argument derives from the limitations on so-called
"knock and talk" investigations. We have held that, ordinarily, no
Fourth Amendment violation occurs when the police "knock on a res-
idence’s door or otherwise approach the residence seeking to speak
to the inhabitants." Rogers v. Pendleton, 249 F.3d 279, 289 (4th Cir.
2001); see Alvarez v. Montgomery County, 147 F.3d 354, 357 (4th
Cir. 1998) ("[P]olice may approach a building, including the front
entranceway to a residential dwelling, without committing a search
where a person lacks a reasonable expectation of privacy in the
area."). Furthermore, the police may circle to the back of the home
under appropriate circumstances. See Alvarez, 147 F.3d at 358. The
police may not, however, conduct a full search of the curtilage with-
out a warrant or another justification that would be sufficient for entry
into the home itself. See Rogers, 249 F.3d at 287, 289.
EDENS v. KENNEDY 7
Edens contends that Kennedy’s entry onto his property was unlaw-
ful because the purpose was to search the curtilage. But Kennedy’s
purpose is irrelevant. Edens has offered no evidence that Kennedy
conducted a general search of the curtilage or otherwise strayed from
the areas a police officer is ordinarily permitted to enter. To the extent
that Kennedy would ordinarily have been permitted to enter the curti-
lage and knock on the front and back doors of Edens’ home, his
authority to do so was not impaired by his receipt of a tip stating that
there might be evidence of criminal activity behind Edens’ house. See
United States v. Villamonte-Marquez, 462 U.S. 579, 584 n.3 (1983).
3.
Edens’ final argument with respect to this claim is that his clear
declaration of his intent to exclude strangers from his property ren-
dered any "knock and talk" unlawful, regardless of Kennedy’s moti-
vation. We hold that Kennedy’s entry onto Edens’ property may have
violated the Fourth Amendment but that Kennedy was nevertheless
entitled to summary judgment on qualified immunity grounds.
Our analysis begins with the precept that the curtilage is entitled to
the same Fourth Amendment protection as the home. See Oliver v.
United States, 466 U.S. 170, 180 (1984); Rogers, 249 F.3d at 287.
This does not mean, however, that limits on access to the home and
the curtilage are equivalent. Access to the home is strictly forbidden
in the absence of a warrant or exigent circumstances. See Payton v.
New York, 445 U.S. 573, 590 (1980). In contrast, police officers ordi-
narily may enter the curtilage in order to approach the home without
implicating the constraints of the Fourth Amendment. See Alvarez,
147 F.3d at 357.
We hold, however, that if the owner of a home encloses the curti-
lage with a fence, locks the gate, and posts "No Trespassing" signs,
the effect for Fourth Amendment purposes is to extend the walls of
the home to the edge of the curtilage. This is because the act of seal-
ing the property creates an elevated expectation of privacy. Cf. Cali-
fornia v. Ciraolo, 476 U.S. 207, 211 (1986) ("The touchstone of
Fourth Amendment analysis is whether a person has a ‘constitution-
ally protected reasonable expectation of privacy.’" (quoting Katz v.
United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring)));
8 EDENS v. KENNEDY
Alvarez, 147 F.3d at 357 (discussing reasonable expectations of pri-
vacy with respect to curtilage).
In the absence of a fence with a locked gate, a homeowner is likely
to receive visits from pollsters, door-to-door salespeople, and trick-or-
treaters, among others. There is no constitutional basis for excluding
police officers from this list of potential visitors. See Rogers, 249 F.3d
at 289-90 ("[P]olice officers do not need a warrant to do what any pri-
vate citizen may legitimately do—approach a home to speak to the
inhabitants."). Nevertheless, the homeowner can reasonably expect all
such visits to cease when he has manifested his intent to exclude
strangers by sealing the property around his home and posting "No
Trespassing" signs. Thus, in the absence of a warrant or exigent cir-
cumstances, a police officer may not lawfully breach a locked enclo-
sure around the curtilage. See State v. Brocuglio, 779 A.2d 793, 800
(Conn. App. Ct. 2001) (holding that police violated Fourth Amend-
ment by entering backyard enclosed by stockade fence posted with
"No Trespassing" and "Keep Out" signs), aff’d, 826 A.2d 145 (Conn.
2003); State v. Ridgway, 790 P.2d 1263, 1265 (Wash. Ct. App. 1990)
(holding that marijuana recovered from doorstep was subject to sup-
pression because police observed marijuana only after walking around
closed gate across driveway and evading guard dogs while approach-
ing house).
We emphasize that our holding is a narrow one. In particular, we
do not hold that all enclosed areas are off limits to the police. An
enclosed area outside the curtilage may be subject to warrantless
intrusions even if the owner has posted "No Trespassing" signs. See
Oliver, 466 U.S. at 176-84 (holding that the Fourth Amendment did
not apply to searches conducted in enclosed areas remote from the
defendants’ homes). And, even within the curtilage, the police may
traverse a fence if there is no clear indication that the homeowner
intended to exclude uninvited visitors. For example, in Rogers, we
upheld an entry into the curtilage for the purpose of conducting a
"knock and talk" even though the property in question was sur-
rounded by a fence and a privacy hedge. See Rogers, 249 F.3d at 293,
294. But if a fence within or around the curtilage is locked and posted
with signs in order to prevent access, this "manifest[s] an objective
intent that the area be preserved as private." Brocuglio, 779 A.2d at
800. When such intent would be apparent to a reasonable officer, the
EDENS v. KENNEDY 9
police may not enter the enclosed area without a warrant or exigent
circumstances.
It may be that no such intent was apparent here, despite the locked
gate and the "No Trespassing" signs, because the gap between Edens’
fence and the woods next to his house permitted relatively easy access
to his front yard. We need not resolve that question, however, because
Kennedy is entitled to qualified immunity even if Edens’ intent to
exclude uninvited visitors was plain.
We have found only one case decided before October 6, 1999 (the
date of the intrusion at issue here) that squarely supports Edens’
claim. See generally State v. Ridgway, 790 P.2d 1263 (Wash. Ct. App.
1990). Ridgway was decided by an intermediate court in Washington
State, and it therefore did not create clearly established law of which
a reasonable officer in West Virginia should have been aware. See
Wilson v. Kittoe, 337 F.3d 392, 402-03 (4th Cir. 2003) ("In determin-
ing whether a right was clearly established at the time of the claimed
violation, courts in this circuit ordinarily need not look beyond the
decisions of the Supreme Court, this court of appeals, and the highest
court of the state in which the case arose." (alteration and internal
quotation marks omitted)). Moreover, Ridgway stands in contrast to
numerous cases upholding the entry of police officers into areas
enclosed by fences or marked with "No Trespassing" signs. See
Vanessa Rownaghi, Comment, Driving into Unreasonableness: The
Driveway, the Curtilage, and Reasonable Expectations of Privacy, 11
Am. U. J. Gender Soc. Pol’y & L. 1165, 1183-85 (2003) (discussing
cases). Although those cases are factually distinguishable, and thus do
not preclude us from reaching the holding we have announced today,
they do not support Edens’ claim either. Accordingly, although Ken-
nedy’s entry on Edens’ property may have violated the Fourth
Amendment, Kennedy is entitled to qualified immunity. We therefore
uphold the entry of summary judgment on Edens’ claim arising from
the first intrusion onto his property.
III. Kennedy’s Second Entry onto Edens’ Property
On October 6, 1999, Kennedy went to Edens’ home with a search
warrant and searched the premises, including the interior of the house.
10 EDENS v. KENNEDY
He did not find any evidence of marijuana use or cultivation. Edens
claims that this search was unlawful.
"When an officer acts pursuant to a warrant, the pertinent question
is whether the officer could have reasonably thought there was proba-
ble cause to seek the warrant." Smith v. Reddy, 101 F.3d 351, 356 (4th
Cir. 1996). Edens contends that such a belief was unreasonable here
because (a) Kennedy never actually went to Edens’ home before
requesting a search warrant, so the averments in his warrant
application—which depended heavily on his observations during the
first entry—were all false; and (b) the tip that induced Kennedy to
make the search was verifiably false. Edens further contends that,
even if probable cause existed, the warrant here was invalid because
the magistrate’s signature was forged. We affirm the entry of sum-
mary judgment as to each of these issues.
A. Alleged Misrepresentations about
Previous Observations
In his application for a search warrant, Kennedy relied on observa-
tions purportedly made at Edens’ home earlier that day (during the
entry discussed above in Part II). Edens alleges that Kennedy’s
description of the first entry is not credible for four different reasons.
We find these considerations insufficient to create a material question
of fact about whether the first entry occurred.
First, Edens claims that Kennedy’s deposition testimony that
Trooper Frye accompanied him during the first entry is contradicted
by a police report drafted by Kennedy in which he consistently
referred to "this officer" in the singular. E.g., J.A. 947a ("After
obtaining the information from the anonymous caller, this officer then
traveled to . . . the suspect’s residence . . . ."). We question whether
the use of "this officer" proves that only one officer was present, par-
ticularly in light of the limited role attributed to Frye in Kennedy’s
deposition (as well as Frye’s). In any event, this alleged discrepancy
in no way suggests that Kennedy did not visit Edens’ home at all
before obtaining a search warrant; it merely raises the question of
whether Kennedy traveled alone or with another officer.
EDENS v. KENNEDY 11
Second, Edens asserts that photographs allegedly taken by Ken-
nedy during his first visit to Edens’ home were shot in the afternoon.
This is significant because it is undisputed that the search pursuant to
the warrant occurred around 1:30 p.m.; thus, if Kennedy’s first entry
onto Edens’ property occurred at all, it must have occurred in the
morning or very early afternoon, in light of the tasks that Kennedy
had to complete in order to obtain a search warrant. An expert hired
by Edens, Ralph Bouwmeester, concluded that shadows in Kennedy’s
photographs prove that the photos could not have been taken at any
time on October 6, 1999, and instead must have been taken around
2 p.m. on October 17, 1999, or February 24, 2000 (or perhaps on
those same dates during other years). Bouwmeester’s report was not
admissible on summary judgment, however, as it was unsworn and
was not accompanied by an affidavit affirming its authenticity.2 See
Scott v. Edinburg, 346 F.3d 752, 759 (7th Cir. 2003); Provident Life
& Accident Ins. Co. v. Goel, 274 F.3d 984, 1000 (5th Cir. 2001).
Third, Edens notes that the flowerpot allegedly seized during the
first entry was listed on the property receipt that Kennedy prepared
later when he executed the warrant. Kennedy testified at his deposi-
tion that he put the flowerpot on the warrant receipt, rather than on
a separate property receipt, because the seizure occurred the same day
as the search and "[t]he time was irrelevant." J.A. 486a. On summary
judgment, however, we are constrained to disregard this testimony
and draw the inference proposed by Edens—namely, that Kennedy
did not seize the flowerpot until he executed the warrant. This may
show that he never saw the pot until that moment, as Edens contends,
but it is equally plausible that Kennedy saw the pot during the first
entry but did not seize it until his return to the premises a few hours
2
Kennedy asserts that even if the Bouwmeester report was properly
admitted on summary judgment, this court may not consider it because
it does not appear in the joint appendix. We are permitted, however, to
rely on material in the record that is not included in the appendix. See
Fed. R. App. P. 30(a)(2). We also direct counsel’s attention to Fourth
Circuit Rule 30(c), which states, "Notwithstanding that FRAP 30 pro-
vides that the appellant shall prepare and file the appendix, the Court
considers the coordination of preparing the appendix to be the responsi-
bility of both sides. The failure of a side to designate does not absolve
the other side from the responsibility."
12 EDENS v. KENNEDY
later. There is no evidence in the record that would allow a jury to
choose the former inference over the latter without engaging in specu-
lation. We therefore conclude that the inclusion of the flowerpot on
the property receipt does not give rise to a material dispute of fact
about whether the first entry occurred.
Fourth, Edens contends that a log of radio communications
between Kennedy and the dispatcher lists only one visit to Edens’
home, around the time of the execution of the search warrant. Edens
asserts that the absence of any reference to an earlier visit proves that
the first entry never occurred. But neither the log itself nor Kennedy’s
deposition testimony about his procedures establishes that Kennedy
reports all of his movements to the dispatcher. Accordingly, we con-
clude that the evidence relied upon by Edens does not conflict with
Kennedy’s claim that he visited Edens’ property before seeking a
search warrant.
B. Alleged Falsehoods in the Anonymous Tip
Edens further asserts that even if the first entry occurred, there was
no probable cause for a search because the information provided by
the anonymous tip had been or could have been proven false. We dis-
agree.
Edens initially maintains that the tipster’s description of 50 mari-
juana plants behind the house was disproven when Kennedy went to
the house and knocked on the back door, and again when Frye con-
ducted the helicopter flyover. We agree that the failure to discover
marijuana plants behind Edens’ house undermined the tipster’s reli-
ability to some extent, as the tipster told Kennedy that "the home-
owner was growing them indoors and was carrying them outside
during the day for sunlight." J.A. 346a. But Kennedy was not required
to infer from this tip that the homeowner took his plants outside every
day. Consequently, the fact that there were no marijuana plants
behind the house did not prove that the information from the tipster
was false.
Edens also asserts that his meter box was installed in 1998, not on
October 5, 1999 (the date indicated by the tipster). Even if this is true,
however, there is no evidence in the record that the power company
EDENS v. KENNEDY 13
would have been willing to disclose this information to the police.
Accordingly, Edens has not established that Kennedy could have
investigated the veracity of the anonymous tip without searching the
premises.
In any event, the warrant was supported by probable cause even if
information available to Kennedy had substantially undermined the
reliability of the tip. During the first entry, Kennedy personally
observed marijuana plants on the doorstep and boards over the
windows—and, as we have discussed, nothing in the record discredits
his claim that those observations were made. These observations were
sufficient in themselves to support the issuance of a warrant. See
United States v. Malin, 908 F.2d 163, 165-66 (7th Cir. 1990) (holding
that observation of marijuana plants in backyard sufficed to establish
probable cause for search of home), abrogation on other grounds rec-
ognized in United States v. Monroe, 73 F.3d 129 (7th Cir. 1995); Peo-
ple v. Pannebaker, 714 P.2d 904, 907-08 (Colo. 1986) (en banc)
(noting that coverings on windows provided evidence of marijuana
cultivation). Thus, by the time Kennedy sought a warrant, the reliabil-
ity of the tip was moot.
C. Alleged Forgery of the Magistrate’s Signature
1.
The affidavit that Kennedy prepared to support his search warrant
application bears the signature of Magistrate Traci L. Carper, affirm-
ing that the affidavit was "subscribed and sworn" in her presence. J.A.
860a. The search warrant issued upon that affidavit also bears Magis-
trate Carper’s signature. Edens commissioned a forensic documents
examiner, James Blanco, to determine whether these signatures ("the
questioned signatures") were authentic. After comparing the ques-
tioned signatures to signatures on other court documents ostensibly
signed by Magistrate Carper ("the known signatures"), Blanco deter-
mined that the questioned signatures were forged.
Edens submitted Blanco’s report to the district court along with
other exhibits appended to Edens’ answer to Kennedy’s summary
judgment motion. The district court refused to consider this report,
however. The court reasoned that Blanco’s conclusion was premised
14 EDENS v. KENNEDY
on "an error of logic" in light of Magistrate Carper’s testimony at her
deposition that she had signed the affidavit and the search warrant. Id.at 981a. The court further noted that Blanco’s report was not accom-
panied by an affidavit or otherwise substantiated by sworn declarations.3
We cannot accept the first rationale employed by the district court.
At her deposition, Magistrate Carper testified that both of the ques-
tioned signatures and seven of the eight known signatures were hers.
(The eighth signature exemplar was not shown to her.) The district
court apparently believed it was illogical for Blanco to accept Magis-
trate Carper’s confirmation of the known signatures while disregard-
ing her testimony concerning the questioned signatures. The jury,
however, would be permitted to make such a determination, and we
must give effect to this possibility on summary judgment.4
Nevertheless, the grant of summary judgment was proper in light
of the second ground noted by the district court. As discussed above,
unsworn reports are inadmissible on summary judgment unless
accompanied by affidavits or depositions swearing to their contents
and conclusions. Thus, the district court properly refused to consider
the Blanco report.
2.
After the entry of summary judgment, Edens moved for reconsider-
3
The district court did not question, nor do we, that the search of
Edens’ home was unlawful if the magistrate’s signature on the warrant
was in fact forged. This is so regardless of whether the warrant applica-
tion established probable cause for the search. Cf. Groh v. Ramirez, 124
S. Ct. 1284, 1289-90 (2004) (holding that search based on invalid war-
rant is unlawful even if warrant application establishes probable cause
and adequately particularizes places to be searched).
4
Kennedy notes that Blanco admitted that it was possible the ques-
tioned signatures were Magistrate Carper’s. Blanco also acknowledged
certain similarities between the questioned signatures and the known sig-
natures and conceded that litigants can procure experts for any conclu-
sion they desire. To the extent these statements raised questions about
Blanco’s credibility, the district court was obligated to resolve those
questions in favor of Edens.
EDENS v. KENNEDY 15
ation pursuant to Federal Rule of Civil Procedure 59(e). Appended to
this motion was a transcript of Blanco’s deposition, in which he
affirmed his authorship of the report and attested to its contents.
Edens asserted that this new document cured any technical defect in
the admissibility of Blanco’s report. The district court denied Edens’
motion.
"There are three circumstances in which the district court can grant
a Rule 59(e) motion: (1) to accommodate an intervening change in
controlling law; (2) to account for new evidence not available at trial;
or (3) to correct a clear error of law or prevent manifest injustice."
United States ex rel. Becker v. Westinghouse Savannah River Co., 305
F.3d 284, 290 (4th Cir. 2002) (internal quotation marks omitted), cert.
denied, 538 U.S. 1012 (2003). We review a decision denying recon-
sideration for abuse of discretion. See id.We find no abuse of discretion here. Of particular significance is
Edens’ failure to account for the fact that Blanco’s report was not
timely authenticated. In this regard, a timeline of events is relevant.
Kennedy noticed Blanco’s deposition on July 8, 2003, with the depo-
sition scheduled for July 22. Edens’ counsel has indicated that the
parties agreed on this date beforehand. See Br. of Appellant at 29. The
deposition took place on the designated date, and the transcript was
completed on August 4. Meanwhile, Edens filed his memorandum
opposing summary judgment on July 7 (one day before the Blanco
deposition was noticed), and the court issued its order granting sum-
mary judgment on August 6 (two days after the transcript was com-
pleted).
If Edens knew of the impending deposition when he prepared this
response, he could have filed an affidavit stating that he was tempo-
rarily unable to "present . . . facts essential to justify [his] opposition,"
Fed. R. Civ. P. 56(f). He certainly could have presented such an affi-
davit after Blanco’s deposition was noticed, and he may even have
been able to present the transcript of Blanco’s deposition to the court
prior to the entry of summary judgment. Indeed, Edens could have
avoided all of this trouble by simply directing Blanco to provide an
appropriate affidavit along with his report, or by obtaining such an
affidavit later. In light of Edens’ failure to perform any of these
actions, it was within the discretion of the district court to deny
16 EDENS v. KENNEDY
Edens’ Rule 59(e) motion. See Looper Maint. Serv. Inc. v. City of
Indianapolis, 197 F.3d 908, 915 (7th Cir. 1999) (noting that movant’s
diligence is relevant factor in ruling on Rule 59(e) motion); cf. Santi-
ago v. Wood, 904 F.2d 673, 676 (11th Cir. 1990) (per curiam) (hold-
ing that denial of motion to reconsider was abuse of discretion, based
in part on movant’s evident diligence in filing motion).
IV. Kennedy’s Response to the Newspaper Report
Edens’ final claim is that Kennedy violated Edens’ First Amend-
ment rights by filing an investigative report in response to a newspa-
per article describing Kennedy’s search of Edens’ property. We
affirm the entry of summary judgment in Kennedy’s favor.
On January 24, 2000, the Charleston Gazette published an article
describing Edens’ conflict with Carney Wright and his complaints
against Kennedy. The text suggests that Edens was the prime source
for this article, and perhaps the instigator of its publication.
On the day the article was published, Kennedy forwarded to the
prosecutor’s office a report detailing the investigation he conducted
after receiving the anonymous tip. The report described Kennedy’s
discovery of marijuana plants on Edens’ doorstep but added that no
evidence of criminal activity was found in Edens’ house or its out-
buildings. The report also noted that Kennedy chose not to arrest
Edens because of his "cooperative attitude, no prior drug history, and
his personal request to submit to a polygraph examination com-
pounded with the fact that no evidence was obtained from within the
residence that could possibly link the marijuana in the portable con-
tainer to being grown within the home." J.A. 950a.
Kennedy testified at his deposition that he was required to file an
investigative report and send it to the prosecutor notwithstanding his
conclusion that no arrest was warranted. He did not file this report
promptly because he was "backlogged" with other work and because,
in light of his determination not to make an arrest, "[i]t was a closed
case to [him]." Id. at 409a. Kennedy further testified that he wrote the
report in response to a telephone call from a Gazette reporter and a
subsequent instruction from his supervisor that "you’d better go ahead
EDENS v. KENNEDY 17
and do a report and get it in writing because it sounds like something
is going to come of it." Id. at 473a (internal quotation marks omitted).
Edens has not been charged with any offense, nor is there any evi-
dence that the grand jury has opened an investigation concerning
Edens. Edens testified, however, that the report will "hang[ ] over my
head for seven years." Id. at 310a. Edens alleges that Kennedy filed
this report to help Wright "communicate to Edens that [Wright] had
sufficient influence in the law enforcement community that Edens
could be subjected to harassing prosecutions while Wright could not
be touched." Br. of Appellant at 31.
In order to prove a First Amendment retaliation claim, a § 1983
plaintiff must prove three elements:
First, the plaintiff must demonstrate that his or her speech
was protected. Second, the plaintiff must demonstrate that
the defendant’s alleged retaliatory action adversely affected
the plaintiff’s constitutionally protected speech. Third, the
plaintiff must demonstrate that a causal relationship exists
between its speech and the defendant’s retaliatory action.
Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 686 (4th Cir. 2000)
(citations omitted). Edens’ claim fails because there is insufficient
evidence in the record to establish the second of these elements. The
mere occurrence of retaliatory action is not sufficient to prove this
element; instead, the action must have some "adverse impact" on the
plaintiff. Id. at 685. The only impact demonstrated here is Edens’ fear
that Kennedy’s report might someday result in a prosecution, despite
its inclusion of significant exculpatory evidence. Fear of this nature
is not sufficient to support a First Amendment retaliation claim. See
Wade v. Goodwin, 843 F.2d 1150, 1152 (8th Cir. 1988) (rejecting
retaliation claim predicated on "speculative apprehensiveness as to
future misuse of information"). We therefore affirm the entry of sum-
mary judgment on this claim.
V. Conclusion
For the foregoing reasons, we affirm the judgment of the district
court.
AFFIRMED