Harman v. Pollock

586 F.3d 1254, 2009 U.S. App. LEXIS 25394, 2009 WL 3838277
CourtCourt of Appeals for the Tenth Circuit
DecidedNovember 18, 2009
Docket08-4068
StatusPublished
Cited by33 cases

This text of 586 F.3d 1254 (Harman v. Pollock) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harman v. Pollock, 586 F.3d 1254, 2009 U.S. App. LEXIS 25394, 2009 WL 3838277 (10th Cir. 2009).

Opinions

HENRY, Chief Judge.

In this ongoing action under 42 U.S.C. § 1983, a previous panel of this court determined that various material factual disputes remained regarding the constitutionality of the near two-hour early morning detention of Melissa Harman and Justin Overton (or the “Plaintiffs”), and the corresponding after-midnight searches of their garage apartment conducted by officers who worked for the Utah Department of Safety. After the panel’s remand, the district court allowed further discovery, and, after reviewing the parties’ motions for summary judgment, granted summary judgment to the defendant officers. With a satisfactorily comprehensive record before us, but with some pause and a few clarifications, we agree with the district court’s conclusions that the defendants’ discovery of marijuana ultimately gave them reason to detain the couple, to seize the marijuana, and to perform two more searches of the apartment. We thus affirm the district court’s grant of summary judgment to the officer defendants, but we utilize some different reasoning.

I. BACKGROUND

We need not recount all of the facts that are set out in detail in Harman v. Pollock, 446 F.3d 1069, 1072-76 (10th Cir.2006) (“Harman I ”), except as they are relevant to this appeal.

A. Harman I

In February 2003, the Plaintiffs rented and resided in the garage apartment at 44}£ West 2700 South in South Salt Lake, Utah. Defendant Brent Pollock, a narcotics agent with the Utah Department of Public Safety’s Bureau of Criminal Investigations, had suspected the residents of the adjacent 44 West 2700 South home of drug dealing and had been investigating and observing them over a period of seven months. Plaintiffs moved in approximately six weeks before the night in question. Agent Pollock was the case agent for the investigation and he performed a search of the garage apartment after the initial entry. Agent Pollock also directed another officer to conduct a “K-9” search of the apartment.

Defendant Scott Barnett (together with Agent Pollock, the “Officers”) was a Sergeant with the Utah Department of Public Safety, to whom the investigating team answered. After the initial entry and the garage apartment was secured, Sergeant Barnett entered the apartment, and detained and questioned the Plaintiffs.

After some time surveilling the suspected drug activity of Ignacio Ascention (known as “Pawoo”) and Conception Rodriguez (known as “Isabel”), who resided at 44 West 2700 South, Agent Pollock completed an affidavit in support of an application for a search warrant. The search warrant included “any and all outbuildings ... of the property,” and included a “detached garage,” which was the Plaintiffs’ residence:

the premises known as: 44 West 2700 South, South Salt Lake City, Utah, a white house, brown roof, front door faces south, small wood fence to the west of the door across the front, # 44 on the wall to the right of the front door, a detached garage to the rear of the house on the east side.

Aplts’ App. vol. I, at 210, 211. Utah’s State Bureau of Investigations coordinated entry with its internal SWAT team unit known as a SERT (Special Emergency [1258]*1258Response Team). On a cold February 13, 2003, after a 12:46 a.m. raid, the handcuffed Plaintiffs were placed in a van; the SERT officers quickly secured the scene; Sergeant Barnett interviewed the Plaintiffs; Agent Pollock searched the apartment and authorized a K-9 search; and finally, the Plaintiffs were cited for marijuana possession and released after 2:35 a.m.

In their § 1983 complaint, the Plaintiffs maintained that the post-midnight raid and the subsequent searches of their apartment and the accompanying detention violated their Fourth Amendment rights. In our prior decision in this case, we rejected the Plaintiffs’ contention that the warrant did not sufficiently describe the area to be searched. Relying on Maryland v. Garrison, 480 U.S. 79, 87, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987), we acknowledged that the search warrant’s description of the property to be searched was overbroad, and constituted more than a clerical error. Harman I, 446 F.3d at 1078. But, despite some inconsistencies in the legal title research, and with some admonitions regarding the sanctity of the home, we concluded that the warrant described the premises with adequate particularity. Id.

Next, we rejected Plaintiffs’ suggestion that Agent Pollock intentionally omitted and misstated material information in his affidavit in support of the search warrant. Id. We then concluded that the Officers were reasonably mistaken when they shattered windows and broke down the front door during the initial entry into Plaintiffs’ garage apartment. Id. at 1081-82. Again citing Garrison, we reasoned that “ ‘the objective facts available to the officers at the time suggested no distinction between [the targeted house and the garage apartment.]’ ” See id. at 1082 (quoting 480 U.S. at 88, 107 S.Ct. 1013) (alterations supplied). Despite various factors that might suggest the existence of two separate residences,1 “[g]iven the facial validity of the warrant, the officers permissibly entered the separate residence.” Id.

When we considered the reasonableness of the subsequent search and detention of the Plaintiffs, however, we concluded that material facts remained in dispute as to (1) the reasonableness of the Officers’ delay in realizing they were in a separate residence; (2) whether the subsequent search took place after this realization; and (3) the reasonableness of the Plaintiffs’ lengthy detention. In connection with the detention, we acknowledged that while

some portion of the detention may have been justified based on the presence of a small amount of marijuana, the district court did not reach this argument, and thus we ha[d] no factual findings or credibility determinations on this matter from the district court. In addition, the parties do not address the sizeable difference between seizing a person or property in an open area, and the seizing of property or persons “situated on private premises to which access is not otherwise available for the seizing officer.”

Id. (quoting Payton v. New York, 445 U.S. 573, 587, 100 S.Ct. 1371, 63 L.Ed.2d 639 [1259]*1259(1980)). We remanded for further factual findings, and we asked the district court to hold additional hearings as necessary as to the arguments regarding the Officers’ authority to detain the plaintiffs and to the applicability of the plain view doctrine.

B. The district court’s conclusions on remand

After remand, the district court allowed additional discovery. Both parties sought summary judgment. After concluding the searches and seizures were valid, the district court granted the Officers’ motion for summary judgment.

First, the district court found that their “detention was a proper investigatory detention as established by Terry v. Ohio,” 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Aplts’ App. vol.

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Cite This Page — Counsel Stack

Bluebook (online)
586 F.3d 1254, 2009 U.S. App. LEXIS 25394, 2009 WL 3838277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harman-v-pollock-ca10-2009.