Crooker v. Metallo

• Court: Court of Appeals for the First Circuit
• Decided: October 4, 1993
• Docket: 93-1370
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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No. 93-1370

STEPHEN S. CROOKER AND PAMELA A. CROOKER,

                                Plaintiffs, Appellees,

                                          v.

                                PAUL METALLO, ET AL.,

                               Defendants, Appellants.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                    [Hon. Frank H. Freedman, U.S. District Judge]
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                                 ___________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                          Selya and Boudin, Circuit Judges.
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                                 ___________________

               Stephen S. Crooker and Pamela A. Crooker on brief pro se.
               __________________     _________________
               Scott Harshbarger, Attorney  General, and William  J. Meade,
               _________________                         _________________
          Assistant Attorney General, on brief for appellants.

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                                  September 29, 1993
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SELYA,  Circuit  Judge.   The  issue  presented in  this
                 SELYA,  Circuit  Judge.
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            appeal is whether the defendants, parole officers, violated a

            clearly   established  constitutional   right   of  which   a

            reasonable person would have known when, in August 1989, they

            arrested plaintiff Stephen S. Crooker  at his home for sundry

            parole violations.  The officers conducted a protective sweep

            incident to  the  arrest.   Stephen  Crooker  and  his  wife,

            Pamela, brought suit, pursuant to 42 U.S.C.    1983, alleging

            that  the  search  violated  their  Fourth Amendment  rights.

            Particularly, they allege that,  during the sweep, an officer

            lifted  their mattress from its box spring and looked between

            the two.1   The district  court denied the  defendants' claim

            of qualified immunity.  The defendants appeal.  We reverse.

                 When defendants executed the  arrest warrant for Stephen

            Crooker,  they  "possesse[d]  a  reasonable belief  based  on

            specific and articulable facts which, taken together with the

            rational inferences from those facts,  reasonably warrant[ed]

            the   officer[s]  in  believing,"  that  the  Crookers'  home

            harbored an  individual, one Vincent Tondryk,  who "pos[ed] a

            danger to the officer[s]  or others."  Maryland v.  Buie, 494
                                                   ________     ____

            U.S. 325,  327 (1990) (citations omitted);  see also Michigan
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            1.  The  defendants  deny that,  in  fact,  the mattress  was
            lifted from  the box  spring.   That factual  dispute remains
            unresolved.   Our  determination  of the  issue of  qualified
            immunity  does not depend on resolution of that dispute as we
            assume  arguendo that the  mattress search took  place in the
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            manner asserted by the plaintiffs.

                                         -2-

v.  Long, 463 U.S. 1032,  1049-50 (1983); Terry  v. Ohio, 392
                ____                                  _____     ____

            U.S.  1,  21 (1968).    This  reasonable  belief permitted  a

            protective sweep of the premises,  i.e., "a quick and limited
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            search of premises, incident to [the] arrest and conducted to

            protect  the safety of police officers or others."  Buie, 494
                                                                ____

            U.S. at 327; see also United States v. Curzi, 867 F.2d 36, 39
                         ________ _____________    _____

            n.2  (1st  Cir.  1989).    The  defendants,  therefore,  were

            justified  in searching  the Crookers'  home for  Tondryk and

            looking  in  places where  Tondryk  might  have been  hiding.

            Although the district court  so found, it nevertheless denied

            the  defendants' claim  of qualified  immunity on  the ground

            that the search between  the mattress and box spring  was not

            within the  proper confines of a protective  sweep because it

            would not  be reasonable to expect  a person to be  hiding in

            those environs.  Thus, the court reasoned, the search was not

            permissible in the absence of a search warrant.

                 It  is  true  that  Buie speaks  of  a  protective sweep
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            "narrowly confined  to a  cursory visual inspection  of those

            places in which a person might be hiding."  Buie, 494 U.S. at
                                                        ____

            327.  The facts of  Buie, however, did not present the  issue
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            of  the permissibility  of  a limited  search for  accessible

            weapons (which  it is  not  unreasonable to  expect might  be

            hidden   between  a  mattress   and  box   spring)  conducted

            simultaneously with the search for a dangerous confederate of

            the arrestee.   Thus, we  cannot say, even  today, that  Buie
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forecloses the  possibility that  such a scenario  is lawful.

            Indeed,  the  Second  Circuit  recently  determined   that  a

            protective sweep can include a search for weapons within easy
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            reach  of an  individual  whom the  officers have  reasonably

            concluded is dangerous.  See  United States v. Hernandez, 941
                                     ___  _____________    _________

            F.2d  133,  137 (2d  Cir. 1991);  see  also United  States v.
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            Lopez,  989  F.2d 24  (1st  Cir. 1993)  (upholding  a weapons
            _____

            search  where the police had ample basis for believing that a

            dangerous  weapon was  lodged  close by,  that the  defendant

            might not be  acting alone,  and that the  premises were  not

            secure),  petition for cert. filed, (U.S. Jun. 23, 1993) (No.
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            93-5032); cf. United States v. Irizarry, 673 F.2d 554, 559 n*
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            (1st Cir.  1982) (suggesting that a search  for weapons would

            be unjustified where all  persons in a hotel room  were under

            control and  the agents  knew  that no  one else  was on  the

            premises).

                 In analyzing a claim of qualified immunity, moreover, we

            are  concerned  with  clearly established  constitutional  or

            statutory  rights of  which a  reasonable officer  would have

            known at the time he took action, here, in August 1989.  See,
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            e.g., Quintero de Quintero v. Aponte-Roque, 974 F.2d 226, 228
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            (1st  Cir.  1992)  (explaining  that "the  touchstone  of  an

            inquiry into qualified immunity  is whether the state actor's

            behavior was  objectively reasonable, as a  matter of federal

            law,   at  the   time  and   under  the   circumstances  then

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obtaining"); Amsden v.  Moran, 904  F.2d 748,  751 (1st  Cir.
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            1990) (similar),  cert. denied,  498 U.S. 1041  (1991).   The
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            protective  sweep in  Hernandez  occurred, like  the  instant
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            sweep,  in  1989, and,  significantly,  that  court drew  its

            reasoning not only  from Buie, but also from Long and Terry -
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            two opinions of the Court that predated 1989 and dwelt on the

            balance  that  must  be  struck  between  the  need  for  law

            enforcement officers to protect themselves and others and the

            invasion which a search entails.  See Long, 463 U.S. at 1049-
                                              ___ ____

            52;  Terry,  392 U.S.  at 23-27;  see  also United  States v.
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            Elkins, 732  F.2d 1280,  1285 (6th Cir.  1984) ("Once  having
            ______

            entered the premises, the agents were then required to secure
                                                       ________

            all  persons therein and to  make a protective  sweep for the

            weapons  Elkins was  known to  favor, for  the safety  of all

            concerned.") (Emphasis supplied).

                 In sum,  it may  well be that,  during the course  of an

            otherwise   justified  protective   sweep  for   a  dangerous

            individual,  thought to  be in  hiding, the  Fourth Amendment

            permits a simultaneously conducted  limited search of  places

            which might contain  a weapon readily accessible to  that as-

            yet-undiscovered individual.  We need  not, and do not, reach

            that  question  in  this  case, however,  for  the  operative

            inquiry on  qualified immunity is not  whether the defendants

            actually abridged the  plaintiffs' constitutional rights, but

            whether  defendants'  conduct  was objectively  unreasonable,

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given the constitutional  understandings then  current.   See
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            Anderson v.  Creighton, 483  U.S. 635, 640  (1987); Davis  v.
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            Scherer, 468 U.S. 183, 190  (1984); Quintero de Quintero, 974
            _______                             ____________________

            F.2d at  228; Amsden, 904 F.2d at  751.  The uncertainty that
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            shrouds  the  question  here  means,  a  fortiori,  that  the
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            defendants, in  1989, violated no clearly  established Fourth

            Amendment right of which reasonable officers would have known

            when  they  searched between  the  mattress  and box  spring.

            After  all,  a state  actor is  neither  expected to  carry a

            crystal  ball nor "to determine the manner in which the law's

            grey  areas will be clarified and defined."  Borucki v. Ryan,
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            827 F.2d 836, 838 (1st Cir. 1987).

                 Finally, we believe it is important to note that nothing

            approaching  a  full scale  search  occurred  in this  case.2

            Stephen Crooker acknowledged that  the officers' sweep of the

            premises,  including  the basement,  took  only  five to  ten

            minutes,  and  that  the  officers spent  only  "a  couple of

            minutes" in the bedroom.   Apart from the search  between the

            mattress and box spring, nothing in  the record suggests that

            the  officers  were  rummaging  aimlessly  about.    This  is

            persuasive proof that safety, not  a search for evidence, was

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            2.  We think  it is useful  to contrast what  transpired here
            with the search  conducted in Chimel v.  California, 395 U.S.
                                          ______     __________
            752  (1969).   That foray  lasted between  45 minutes  and an
            hour, id. at 754,  and comprised "a full-blown search  of the
                  ___
            entire house for evidence  of the crime for which  the arrest
            was made."  Maryland v. Buie, 494 U.S. at 336.
                        ________    ____

                                         -6-

the  impetus for,  and guiding  force behind,  the protective

            sweep at  issue here.  The Court has taught that a protective

            "sweep  lasts  no longer  than  is  necessary to  dispel  the

            reasonable  suspicion of  danger and in  any event  no longer

            than  it  takes  to  complete   the  arrest  and  depart  the

            premises."  Buie, 494 U.S. at 335-36.  The sweep conducted by
                        ____

            the defendants in this case fulfilled these criteria.

                 We need go no  further.3  Because the record, read as it

            must  be, in the light most flattering to the plaintiffs, see
                                                                      ___

            Quintero de Quintero, 974  F.2d at 227-28, shows conclusively
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            that the  defendants are entitled to  qualified immunity, the

            district  court erred  in  denying their  motion for  summary

            judgment.

                 Reversed.
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            3.  In view of the result that we reach, we need not  address
            defendants' asseveration, premised  on cases such  as Griffin
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            v.  Wisconsin,  483  U.S. 868  (1987)  and  United  States v.
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            Cardona,  903 F.2d 60 (1st Cir. 1990), cert. denied, 498 U.S.
            _______                                ____________
            1049 (1991),  that their  status as parole  officers, coupled
            with  Stephen  Crooker's  status  as  a  parolee,  created  a
            diminished expectation of privacy and broadened the officers'
            entitlement to conduct a warrantless search.

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