Gloria Franklin and Johnny Curry v. Derrick Foxworth

31 F.3d 873, 94 Cal. Daily Op. Serv. 5941, 94 Daily Journal DAR 10814, 1994 U.S. App. LEXIS 19747, 1994 WL 395759

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 2, 1994
• Docket: 92-35214
• Status: Published

Opinions

Opinion by Judge REINHARDT; Concurrence by Judge REINHARDT; Concurrence by Judge BRUNETTI.

REINHARDT, Circuit Judge:

Johnny Curry and Gloria Franklin filed an action under 42 U.S.C. § 1983 against three police officers and the City of Portland, alleging that the manner in which the officers executed a search warrant violated their constitutional rights. They did not contest the validity of the warrant itself. Prior to trial, Franklin reached a monetary settlement with the City regarding her claim, and she was subsequently appointed Curry’s guardian ad litem for the purpose of pursuing his. Following a bench trial on Curry’s claim, the district court found that the officers’ conduct in executing the warrant was reasonable under the Fourth Amendment, and entered judgment in favor of the defendants. Curry appeals. We reverse, holding that the officers’ conduct was unreasonable, and remand for further proceedings consistent with this opinion.

I.

Gloria Franklin and Johnny Curry reside in a house in Portland, Oregon. Curry has advanced multiple sclerosis (“M.S.”), a degenerative, terminal illness that results in progressive loss of motor function. He has suffered from that illness for a considerable period of time, and has been completely unable to walk for several years. Curry is unable to feed himself, to sit up without assistance, or to control his bowels. Because of the last problem, he wears only a T-shirt in bed. For more than 10 years he has shared a residence with Franklin, who takes care of him.

One evening, at 10:20 p.m., 23 members of the Portland Police Bureau, under the direction of defendant Derrick Foxworth, executed a search warrant on Curry and Franklin’s home. The police had received information that drug activity had taken place at the house and that Franklin’s son Michael Fes-ser was a member of a gang and might be present. The police officers did not knock and announce before entering the residence. Instead, they broke various windows as a diversionary tactic and then knocked down the front door with a battering ram. The officers announced their presence at the same time that they battered down the door.

Only three persons were present in the home when the 23 officers entered: Gloria Franklin, Johnny Curry and LaTasha Abraham, Fesser’s girlfriend. At the time of the raid, Abraham was seven months pregnant.

It is the custom and practice of the Portland Police Bureau when executing search warrants for drugs to pat-search and handcuff all occupants of the residence, and then to detain them at one central location — in this case, the living room of the Curry-Franklin home. It is the further custom and practice of the Portland Police Bureau not to release the detainees until the entire residence has been searched.

Abraham was seized by police officers as she came down the stairs; her hands were cuffed behind her back and she was put in the living room.

Franklin was seized in her bedroom, pat-searched, hand-cuffed, and also led to the living room. As she was being handcuffed, Franklin told the police that Curry was ill and should not be moved from his bed.

Curry was seized in his bedroom by Officers Justus and Billesbach. The officers entered the room with their guns drawn and found Curry lying in bed. He was wearing only a T-shirt at the time. As the district court found, it was “obvious to the police officers at the time of the raid that Mr. Curry was suffering from some sort of disability.”¹ The officers searched Curry for weapons and found none. They then cuffed his hands behind his back, carried him into the living room, and placed him on a couch, with his genitals exposed. No effort was made to obtain clothing or any covering for him. His room was then searched, but no weapons or contraband were found.

At some point after the officers transported Curry to the living room, he complained that the handcuffs hurt his wrists and that he was cold and tired from sitting upright on the couch. His hands were recuffed in front of his body and he was given a blanket. However, he was not allowed to return to his bed for over two hours, until after the search of the entire house had been completed, even though the officers had finished their unproductive search of Curry’s bedroom approximately an hour earlier.

II.

The Fourth Amendment proscribes only “unreasonable” searches and seizures. However, the reasonableness of a search or a seizure depends “not only on when it is made, but also on how it is carried out.” Tennessee v. Garner, 471 U.S. 1, 7-8, 105 S.Ct. 1694, 1699, 85 L.Ed.2d 1 (1985) (emphasis in original). In other words, even when supported by probable cause, a search or seizure may be invalid if carried out in an unreasonable fashion. We review a district court’s determination of reasonableness de novo. See United States v. McConney, 728 F.2d 1195 (9th Cir.), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

Whether an otherwise valid search or seizure was carried out in an unreasonable manner is determined under an objective test, on the basis of the facts and circumstances confronting the officers. The Supreme Court and this court have discussed the factors relevant to that objective test primarily in cases involving police use of excessive force in making stops or arrests. See, e.g., Graham v. Connor, 490 U.S. 386, 387, 109 S.Ct. 1865, 1867, 104 L.Ed.2d 443 (1989); Ward v. City of San Jose, 967 F.2d 280, 284 (9th Cir.1991). In Graham, a ease in which officers used excessive force in making an investigatory stop of a diabetic, the Supreme Court stated that determining the reasonableness of a seizure “requires careful attention to the facts and circumstances of each case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 396,109 S.Ct. at 1872 (emphasis added). The inquiry is not limited to the specific Graham factors, however. Rather, we must look to whatever specific factors may be appropriate in a particular case, whether or not listed in Graham, and then must consider “whether the totality of the circumstances justifies a particular sort of seizure.” Id. (emphasis added), quoting Garner, 471 U.S. at 8-9, 105 S.Ct. at 1700.

Unlike Graham, the ease before us does not involve the reasonableness of the force used to make an arrest or an investigatory stop. However, as Gamer makes clear, the test of “reasonableness” applies to the manner in which the police conduct any seizure, including limited detentions of the type imposed on the occupants of the Curry-Franklin residence by the Portland Police. In addition, the test is applicable to other forms of police conduct, and not just to the use of force. In Michigan v. Summers, 452 U.S. 692, 705, 101 S.Ct. 2587, 2595, 69 L.Ed.2d 340 (1981), the Supreme Court stated that for Fourth Amendment purposes, “a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.” (Footnotes omitted). However, the Court included a caveat: “[Sjpecial circumstances, or possibly a prolonged detention, might lead to a different conclusion in an unusual case_” Id. at n. 21, 101 S.Ct. at 2595. The conclusion we draw from Summers and the other applicable Supreme Court precedent is that, while detentions of occupants during the period of a search will under most circumstances prove to have been reasonable, a detention may be unreasonable in a particular instance either because the detention itself is improper or because it is carried out in an unreasonable manner.

Here, we can assume that some form of detention of Curry was appropriate. The question is whether the manner in which the Portland police carried out that detention was reasonable. Our assessment of the reasonableness of the manner of detention imposed in connection with the execution of a search warrant involves a number of considerations that are similar, although not identical, to those involved in determining the reasonableness of the manner in which police effect an arrest. The factors identified in Graham — the severity of the crime, whether the person being detained poses an immediate threat, whether he is actively resisting or attempting to flee — may be helpful in the conduct of our inquiry, but so may other factors not ordinarily relevant in deciding how much force is appropriate when making an arrest. There is a basic difference between the two categories of cases. Persons being arrested are ordinarily suspected of having committed serious, often violent, offenses. Persons being detained while a search of a house is being conducted may simply be visiting a home, or business for an innocuous if not benevolent purpose.

A detention conducted in connection with a search may be unreasonable if it is unnecessarily painful, degrading, or prolonged, or if it involves an undue invasion of privacy. Detentions, particularly lengthy detentions, of the elderly, or of children, or of individuals suffering from a serious illness or disability raise additional concerns. Of course, the presence of any of these factors in an individual case does not establish that the detention is unreasonable per se. Rather, these factors, along with the Graham elements and any other circumstances relevant to an individual case, must be assessed in their totality.

Here, we have an example of the unusual case contemplated by Summers. It clear, in light of the district court’s findings of fact, that the officers executing the search warrant at the Curry-Franklin home acted unreasonably. They executed the warrant in an unreasonable manner, first by removing a gravely ill and semi-naked man from his sickbed without providing any clothing or covering, and then by forcing him to remain sitting handcuffed in his living room for two hours rather than returning him to his bed within a reasonable.time after the search of his room was completed. None of the officers had any reason to believe, on the basis of the information they had prior to the search or their observations once in the house, that Curry had committed a crime, or that he was armed. In fact, the officers were not even aware that Curry lived in the house prior to executing the warrant. It should also have been clear to them that Curry was not a gang member. Finally, it should have been obvious to the officers that Curry presented little risk of danger to them, that he presented absolutely no risk of flight, and that it was highly unlikely that he could interfere with their search in any way.

We note that we must determine the reasonableness of Curry’s detention “from the perspective of a reasonable officer on the scene.” Graham, 490 U.S. at 396, 109 S.Ct. at 1872. However, there is no dispute that the officers were aware of Curry’s disability. After the police entered the home they were immediately put on notice of Curry’s physical condition by Franklin. Although the officers were entitled not to believe Franklin initially, they admitted that their own observations quickly corroborated her statements. On the basis of those observations, the officers determined that Curry could not walk or sit up unassisted, and that as a result it was necessary for them to carry him to the living room.

The officers and the City of Portland contend that their treatment of Curry was reasonable because it is the “custom and practice of the Portland Police Bureau not to release [detainees] from their restraints until the search [of the entire premises] has been completed." This argument simply ignores the warning in Summers that detaining persons present at the premises for the duration of a search may be unreasonable in certain circumstances. Such circumstances are amply demonstrated here, where it is not only the length of the detention but also the treatment afforded the detainee during the detention that offends constitutional principles. First, we can conceive of no reason why Curry was not given clothing or covering before he was carried from his bed to the living room, so that his genitals would not be exposed to the view of 23 armed strangers. Given the officers’ immediate apprehension of Curry’s disability, and the fact that the other residents of the home were quickly seized, handcuffed, and taken to that central location, no exigency existed that could reasonably have justified the officers’ failure to permit Curry to preserve some small measure of his privacy and dignity. Cf. Sepulveda v. Ramirez, 967 F.2d 1413 (9th Cir.1992), cert. denied, — U.S. -, 114 S.Ct. 342, 126 L.Ed.2d 307 (1993); York v. Story, 324 F.2d 450, 454-56 (9th Cir.1963), cert. denied, 376 U.S. 939, 84 S.Ct. 794, 11 L.Ed.2d 659 (1964).

There is also no justification for the officers’ failure to return Curry to his bed after the search of his room had been completed. Again, the officers admitted at trial that they were aware of Curry’s disability early in the course of their activities. The officers testified that they knew that Curry presented absolutely no risk of flight. Based on this knowledge, it must have been apparent to a reasonable officer that Curry presented no serious threat to the officers or to the conduct of the search. Certainly it must have been apparent that returning him to his sickbed would involve no risk at all once the officers had searched his room and made certain that there were no weapons or contraband present. However, even had Curry represented some residual threat if left wholly unattended, there was no reason why he could not simply have been taken back to bed and guarded by one or two of the twenty-three armed officers involved in the operation. The two other persons present in the residence when the raid occurred had been handcuffed and were confined to the living room. Surely, one or two officers could have been spared from their other duties to stay with Curry, had Foxworth, the officer in charge, deemed such a precaution necessary. For that matter, all three of the residents could have been held in Curry’s sick room and guarded there. The city’s policy is to move all residents to a central location. Nothing suggests, however, that it was necessary that the central location be the living room.

We emphasize that it is not the fact that there was a more reasonable alternative available that leads ns to our conclusion. It is the fact that the officers conducted the detention of Curry in a wholly unreasonable manner — a manner that wantonly and callously subjected an obviously ill and incapacitated person to entirely unnecessary and unjustifiable degradation and suffering. Even had Curry been thought to have been guilty of criminal behavior, we would be required to reject such conduct on the part of individuals sworn to uphold the law. Given the circumstances of this case, the violation was egregious and the injuries substantial.

We reverse and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

1 . Defendant Foxworth testified that Curry "was suffering from some type of medical disability and was not asked if he understood his rights nor was he subsequently interviewed.”

Defendant Billesbach testified that Curry was "an elderly gentleman ... and he was not very mobile ... He appeared to be ill.”

Defendant Justus testified that Curry “seemed kind of skinny and he seemed like he had a physical disability, like it was difficult for him to get up and walk.”