Robert Lewis v. Hoke County, Hubert Peterkin, Timothy Rugg, Samuel Morant, Timothy Kavanaugh, Stanley Davis, and John Does 1-5

Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ROBERT LEWIS, ) ) Plaintiff, ) ) v. ) 1:17CV964 ) HOKE COUNTY, HUBERT ) PETERKIN, TIMOTHY RUGG, ) SAMUEL MORANT, TIMOTHY ) KAVANAUGH, STANLEY DAVIS, ) and JOHN DOES 1-5, ) ) Defendants. )

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Robert Lewis alleges that deputies Timothy Rugg, Samuel Morant, with the Hoke County Sheriff’s Office Timothy Kavanaugh, and Stanley unlawfully searched his home and Davis, the only remaining defendants, cars on October 19, 2014 after they have now moved for summary arrested him on armed robbery judgment. Defs.’ Mot. for Summ. J., charges. He brought this suit against Docket Entry 65. Hoke County, the sheriff, and various deputies, alleging a violation of his For the reasons stated herein, the Fourth Amendment rights.1 and, Court should grant in part the under North Carolina law, trespass, defendants’ motion as to the seizure false arrest, false imprisonment, and a of the property pending a search due process violation. See generally warrant and deny in part the Compl., Docket Entry 2; Am. Compl., defendants’ motion as to the Docket Entry 9.2 protective sweep.

1 As for any state law claims Lewis may Docket Entry 6. Considering Lewis’s pro have asserted, see infra at 16. se status, this recommendation will treat 2 In his Amended Complaint, Lewis the two complaints as the operative “realleges and incorporates by reference” amended complaint. portions of his original complaint. See I. FACTS on the Johnston County robbery. See id. They drove by the Laurinburg The following facts are undisputed Road residence and saw a blue Nissan unless otherwise noted. Titan parked at the residence, but they did not see the Kia Optima. See On September 21, 2014, an armed id. man robbed a Family Dollar in Hoke County. See, e.g., Timothy Rugg Decl. When the Hoke County day shift ¶ 3 (Sept. 23, 2025), Docket Entry 66- patrol deputies started their shift on 3. The suspect wore dark clothing, October 19, 2014, they had this black tennis shoes with white information and continued to be on bottoms/soles and Velcro fasteners, the lookout for Lewis. See id. ¶ 5. and a blue piece of cloth covering his Patrol Deputy Kavanaugh drove to the face. See id. He fled the scene in a residence and parked nearby where dark blue Nissan Titan pickup truck. he surveilled the house for “most of See id. Five days later, another armed the morning.” See id. He radioed Shift robbery took place in Hoke County, Sergeant Morant several times this time at a Dollar General. See id. throughout the morning to report that The was again a man who wore dark he was still surveilling the house, the clothing with a blue face covering. See blue Nissan Titan was still parked at id. Two days later, a man robbed the house, but no other cars had come anther Dollar General in Hoke or gone. See Samuel Morant Decl. ¶ 9 County. See id. He was armed and (Sept. 22, 2025), Docket Entry 66-2. wore dark clothing with a blue face Kavanaugh also reported that he had covering. See id. As of mid-October not seen anyone – including Lewis – 2014, law enforcement had not solved enter or leave the house. Id. Morant the crimes. See id. ¶ 4. instructed Kavanaugh to leave the residence and return to his patrol However, on October 19, 2014, the duties. Id. ¶ 10. case broke. A man robbed a sweepstakes business in Johnston Later in his shift, at approximately County, and an officer with the 1:10 p.m., Kavanaugh drove past the Smithfield Police Department residence again. See Kavanaugh Decl. identified the suspect as Robert ¶ 6. This time he saw a gray Kia Dwayne Lewis. See, e.g., Timothy Optima, along with the blue Nissan Kavanaugh Decl. ¶ 4 (Sept. 23, 2025), Titan, parked at the house. See id. Docket Entry 66-4. Lewis fled the Kavanaugh turned around and parked scene in a gray Kia Optima registered on the other side of the road from the in his name to 7085 Laurinburg Road house. See id. ¶ 7. By now, Kavanaugh in Hoke County, where law knew that Johnston County had enforcement personnel believed he lived. See id. Night shift patrol deputies in Hoke County were briefed issued arrest warrants for Lewis. See evidence but did not open the car id.; Morant Decl. ¶ 12. doors or disturb the car in any way. See id. ¶ 13. He then radioed Morant Several minutes later, a man fitting to report his conversation with Lewis’s description left the house and Lewis’s stepfather and what he had walked across the street to the seen inside the Kia. See id. ¶ 14. mailbox. See Kavanaugh Decl. ¶ 8. Kavanaugh approached the man in Morant arrived on the scene and saw his car and radioed the Sheriff’s Lewis’s stepfather standing on the Office. See id. porch. See Morant Decl. ¶ 18. He parked near Kavanaugh and Davis He stopped his car near the man, got and walked over to speak with out of his car, and approached him. Kavanaugh for an update. See id. See id. ¶ 9. The man identified After receiving the update, he called himself as Robert Lewis. See id. Lieutenant Rugg in the Detective Kavanaugh placed Lewis in Division to report what had handcuffs, and Patrol Deputy Davis, happened, including the Smithfield who had just arrived, stood watch Police Department’s identification of while Kavanaugh searched Lewis’s their robbery suspect as Lewis, the person and put him in the backseat of license plate of the getaway car the patrol car. See id. ¶ 10. coming back to Lewis at the Kavanaugh then reported to Morant Laurinburg Road address, the arrest that he had arrested Lewis. See id. warrants for Lewis for that robbery, ¶ 11. and Hoke County Sheriff’s Office’s assistance with locating and arresting Kavanaugh walked across the street to Lewis. See id. ¶ 19. He continued to the residence and knocked on the tell Rugg that deputies had driven by front door. See id. ¶ 12. An elderly the residence and seen the truck man, Lewis’s stepfather, answered the believed to be the suspect car in the door and came outside on the porch to Hoke County robberies and the Kia speak with Kavanaugh. See id. He Optima, and that Kavanaugh saw confirmed that Lewis also lived at the Lewis exit the house and walk across house. See id. He told Kavanaugh that the street, identified the man as the Kia Optima belonged to Lewis, the Lewis, and arrested him. See id. but Nissan Titan was his, although he allowed Lewis to use the truck After finishing the call to Rugg, occasionally. See id. Morant asked Kavanaugh if there was anyone else in the house; Kavanaugh After he spoke with Lewis’s did not know. See id. ¶ 20. So stepfather, Kavanaugh stepped Kavanaugh returned, this time with towards the Kia Optima, looked Morant, to the front porch where through its windows, and saw what Lewis’s stepfather was still standing. appeared to be incriminating See id. Morant explained that deputies needed to ensure there was photographs and videos. See Lewis no one inside the house for officer Decl. ¶ 5. And when Kavanaugh was security. See id. Deputies “did not taking Lewis to the Sheriff’s Office, he know whether [Lewis] had any told Lewis that he and Morant “had accomplices.” See Kavanaugh Decl. already searched through [his] ¶ 15. Lewis’s stepfather said that his bedroom and saw some very wife was not home and no one else interesting things in [his] cellphone was there. See Morand Decl. ¶ 20. But that [he] didn’t have to worry about “in order to be sure, as taking the anymore because [he] was going to word of a stranger in a situation like prison.” See id. ¶ 7. this was a very risky proposition,” id., Morant and Kavanaugh asked if they While Kavanaugh and Morant were in could “conduct a quick security sweep Lewis’s house, Lewis saw Davis inside of his house,” see id.; walking in the yard photographing the Kavanaugh Decl. ¶ 15. Lewis’s inside of the Nissan Titan and the Kia stepfather told Morant and Optima, as well as the storage barn in Kavanaugh that he did not have a the backyard. See id. ¶ 6. problem with that and to do what they needed to do. See Morant Decl. ¶ 20; Rugg then called Morant and told him Kavanaugh Decl. ¶ 15. to secure the residence until deputies could obtain a search warrant for the Morant and Kavanaugh then residence and cars. See Morant Decl. conducted a protective sweep of the ¶ 21; Timothy Rugg Decl. ¶ 7 (Sept. 23, inside of the residence. See Morant 2025), Docket Entry 66-3. Davis and Decl. ¶ 20; Kavanaugh Decl. ¶ 15. others remained at the scene while They claim their sweep took no more detectives obtained a search warrant than two minutes, see, e.g., for the premises. See, e.g., Stanley Kavanaugh Decl. ¶ 15, but Lewis avers Davis Decl. ¶ 10 (Sept. 26, 2025), that they were in the house from Docket Entry 66-1. After an hour and approximately 2:00 p.m. to just after a half, Davis left to resume his regular 3:00 p.m., according to the watch he patrol duties, and other deputies was wearing at the time, see Lewis continued to secure the premises. See Decl. ¶¶ 3-4. id. ¶ 11.

They did not find anyone inside the All the while, Lewis remained at the house and state they did not “touch or scene in the back of Kavanaugh’s disturb anything in the house, nor did patrol car; at some point, he began to [they] conduct any sort of search for feel sick and nauseated, so deputies evidence.” See, e.g., Kavanaugh Decl. called Emergency Medical Services. ¶ 15. According to Lewis, though, his See Kavanaugh Decl. ¶ 17. Emergency two unlocked cellphones were in his Medical Technicians evaluated Lewis bedroom at the time, and the for approximately fifteen minutes and cellphones contained intimate determined that he was not in any medical distress. See id. ¶ 18. And charging Lewis for the Hoke County Lewis declined the offer to go to the armed robberies. See Rugg Decl. ¶ 9. hospital or receive any additional They arrived to execute the search medical attention. See id. warrants at approximately 10:20 p.m. and found incriminating evidence According to Kavanaugh, “[a]t some inside the house and the Kia Optima. point in time,” a deputy escorted See id. ¶¶ 10, 12-14. Lewis into his home to use the restroom, see id. ¶ 19, but Lewis Lewis ultimately entered Alford pleas denies he ever went back inside his to the Hoke County and Johnston house after his arrest, see Lewis Decl. County charges. ¶ 8. II. PROCEDURAL Rugg then called Detective Tart to HISTORY draft the search warrant for Lewis’s residence, the Nissan, and the Kia. See Lewis brought this action against the Rugg Decl. ¶ 6. Around 4:30 p.m., at defendants, claiming a violation of his the request of Rugg and Morant, Fourth Amendment rights because (1) Kavanaugh transported Lewis to the Kavanaugh “failed to serve or prove Sheriff’s Office where Rugg and Tart the existence of the Johnston County made an unsuccessful attempt to warrant,” (2) Kavanaugh failed to interview him. See Morant Decl. ¶ 26; serve the Johnston County “warrant Rugg Decl. ¶¶ 7, 8. without unnecessary delay” in violation of the arrest order, (3) he Throughout the afternoon, deputies endured a “period of confinement . . . remained at the scene to secure it following an arrest that was never while detectives obtained a search made,” (4) deputies entered onto the warrant. See, e.g., Morant Decl. ¶¶ 22- property without a warrant after they 28. Sometime after Lewis had left, his had taken Lewis into custody, (5) mother arrived, and Morant told her deputies seized his residence for she could not go inside the house. See approximately eight and a half hours id. ¶ 27. When shifts changed, “without a warrant, probable cause, or Sergeant Teasley took over at the exigent circumstances,” and (6) Hoke scene for Morant. See id. ¶ 28. At County and the sheriff failed to some point, a deputy permitted supervise and train the deputies. See Lewis’s mother and stepfather to Compl. ¶¶ 21-25; Am. Compl. ¶¶ 26- enter the house to wait in the living 28. room because of the dark and cold. See Rugg Decl. ¶ 10. The Court has since dismissed all claims against Hoke County and the Late that night, detectives obtained sheriff. The only remaining claim search warrants for the residence and against Kavanaugh arises from the both cars, as well as arrest warrants alleged eight-and-a-half-hour search and seizure of the residence while motion and nothing more when he waiting for the search warrants, moved to deem his “Response to including the one-hour warrantless Defendants’’ Motion for Summary security sweep inside the residence. Judgment Timely Filed Due to And all claims against Davis, Morant, Hardship.” See Doc. 68 (emphasis and Rugg remain. See Order (Nov. 21, added). 2024) (adopting the recommended ruling), Docket Entry 55. After granting Lewis’s motion to deem his response timely, the Court The defendants argue that there is no afforded the defendants the genuine dispute of material fact, they opportunity to reply, which they have. did not violate Lewis’s constitutional See Defs.’ Reply in Supp. of their Mot. rights, they are entitled to qualified for Summ. J., Docket Entry 73. immunity, and they are otherwise entitled to judgment as a matter of This matter is ripe for disposition. law. See Defs.’ Mot. for Summ. J., Docket Entry 65. In support of their III. STANDARD OF motion, they each submitted REVIEW affidavits, as well as two pages from Lewis’s testimony in state court, A court “shall grant summary referenced supra. See Docket Entries judgment if the movant shows that 66-1 to 66-5. there is no genuine dispute as to any material fact and the movant is In opposition to the motion, Lewis entitled to judgment as a matter of submitted his own Declaration, made law.” Fed. R. Civ. P. 56(a). A genuine under penalty of perjury. See Mem. of dispute of material fact exists “if the Law in Supp. of Cross-Mot. for Summ. evidence is such that a reasonable jury J., Docket Entry 70-1; Decl. of Robert could return a verdict for the Lewis (Dec. 10, 2025), Docket Entry nonmoving party.” Anderson v. 70-2.3 Lewis entitles his response as a Liberty Lobby, Inc., 477 U.S. 242, 248 cross-motion for summary judgment, (1986). In analyzing a summary but the deadline by which to file judgment motion, courts dispositive motions expired three “must construe all facts and months earlier, see Order (Sept. 6, reasonable inferences in the light 2025), Docket Entry 62, and Lewis most favorable to the nonmoving did not seek leave to move for summary judgment at this late date. Even Lewis recognized that the filing is only a response to the defendants’

3 Lewis also refers the Court to his Court cannot consider them as evidence “verified” complaint, but neither his when deciding the motion for summary original complaint nor his amended judgment. complaint is verified. Therefore, the party.” Bandy v. City of Salem, 59 F.4th 705, 709 (4th Cir. 2023). IV. DISCUSSION

The moving party bears the burden of A. Qualified immunity shields the establishing the absence of a genuine defendants from the eight-hour dispute of material fact by property seizure claim. “identifying those portions of ‘the pleadings, depositions, answers to Lewis contends that the eight-hour interrogatories, and admissions on seizure of his property while officers file, together with the affidavits, if any’ obtained a search warrant violated the which it believes demonstrates the Fourth Amendment. absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 The Fourth Amendment “protects U.S. 317, 323 (1986) (quoting Rule property interests, and, specifically, 56). an individual’s possessory interest in property that belongs to him but has “Where, as here, the nonmoving party been seized by law enforcement bears the ultimate burden of proof at officers,” United States v. Krueger, trial, the moving party may discharge 145 F.4th 460, 467 (4th Cir. 2025), for its initial burden at summary instance, when law enforcement is judgment by ‘showing – that is, seeking a search warrant for that pointing out to the . . . court – that property, see Illinois v. McArthur, 531 there is an absence of evidence to U.S. 326, 331 (2001). For example, support the nonmoving party’s case.’” temporarily “securing a dwelling, on Anderson v. Diamondback Inv. Grp., the basis of probable cause, to prevent LLC, 117 F.4th 165, 174 (4th Cir. 2024) the destruction or removal of (quoting Celotex Corp., 477 U.S. at evidence while a search warrant is 325). “If the moving party carries this being sought is not itself an initial burden, the burden then shifts unreasonable seizure of either the to the nonmoving party, who must ‘go dwelling or its contents.” Segura v. beyond the pleadings and by [his] United States, 468 U.S. 796, 810 own affidavits, or by the depositions, (1984). answers to interrogatories, and

admissions on file, designate specific Courts “balance the privacy-related facts showing that there is a genuine and law enforcement-related issue for trial.’” Id. (quoting Celotex concerns to determine if the intrusion Corp., 477 U.S. at 324). was reasonable.” McArthur, 531 U.S. at 331. While this is a fact-specific inquiry, the Supreme Court’s rulings in McArthur and Segura provide investigate. See United States v. guideposts for the analysis here. Elmore, 101 F.4th 1210, 1218 (10th Cir. 2024) (emphases in original) Specifically, in McArthur, officers (quoting McArthur, 531 U.S. at 332- accompanied a woman to her home 33). that she shared with her husband to keep the peace while she collected her In Segura, the Court found, “under belongings. See id. at 328-29. After [the] limited circumstances” of the she had done so, she told the officers case, that the overnight seizure of an that her husband “had dope in there” apartment was reasonable where “the and had “slid some dope underneath officers focused first on the task of the couch.” See id. at 329. Her processing those whom they had husband denied the officers consent arrested before turning to the task of to search, so they sought a search securing the warrant,” not an warrant, which they secured two unreasonable decision given “that the hours later, and did not allow the proprietors of the apartment were in husband to reenter the home the custody of the officers throughout unaccompanied during the interim. the period in question.” 468 U.S. at See id. 812. In addition, “it [was] reasonable to assume that” for much of the The Court considered (1) the probable overnight delay “judicial officers cause the police had that the home [were] not as readily available for contained evidence of a crime and consideration of warrant requests.” contraband, (2) the good reason to Id. at 812-13. And there was also “no fear that the husband would destroy evidence that the agents in anyway the drugs before they could obtain the exploited their presence in the warrant, (3) the reasonable efforts to apartment.” Id. at 812. Finally, balance their law enforcement needs because the individuals challenging with the husband’s right to privacy, the seizure of the apartment were and (4) the imposition of “the under arrest and in police custody restraint for a limited period of time, during the seizure, “[t]he actual namely, two hours.” See id. at 331-32. interference with their possessory Weighing these factors, the temporary interests in the apartment and its seizure of the home was contents was . . . virtually constitutional; “this time period was nonexistent.” See id. at 813. no longer than reasonably necessary for the police, acting with diligence, to Applying these considerations here, obtain the warrant.” See id. at 332; the defendants acted reasonably, and, accord Krueger, 145 F.4th at 467. more important, there is no evidence Notably, “McArthur authorizes warrantless seizures of a home . . . ‘no longer than reasonably necessary . . . to obtain the warrant,’” not to that any of the defendants caused the ‘two-pronged inquiry.’” Nazario v. delay. Gutierrez, 103 F.4th 213, 230 (4th Cir. 2024) (quoting Tolan v. Cotton, 572 Rugg ordered Morant to seize the U.S. 650, 655 (2014)). First, the court property, but only after first determines whether “in a light most determining there was probable cause favorable to the injury party – ‘the to seek a warrant (from Morant’s officer’s conduct violated a information tying Lewis and the constitutional right.’” Id. (quoting property to the crimes) and ordering Saucier v. Katz, 533 U.S. 194, 201 officers to obtain one. See, e.g., State (2001)). Next, the court asks v. Lewis, 831 S.E.2d 37, 38 (N.C. “whether the right at issue in the first 2019) (recognizing officers had prong was ‘clearly established at the probable cause for the search of time’ of the contested action.” Id. Lewis’s home and car). And there are (quoting Pearson, 555 U.S. at 227). no facts suggesting that Rugg was “Accordingly, a court may award responsible for the extended delay in qualified immunity to an official if obtaining the warrant. The same is either (1) there is no violation of a true for Morant, Kavanaugh, and constitutional right, or (2) the Davis. During a portion of their shifts, constitutional right was not clearly they were each responsible for established.” Id. (citing Pearson, 555 securing the property, but they were U.S. at 227). not responsible for obtaining the warrant or the accompanying delay. The court is required to define the constitutional right at a “‘high level of Furthermore, Rugg, Morant, particularity’” because “[t]he way in Kavanaugh, and Davis are entitled to which an alleged right is described qualified immunity even had they matters.” Atkinson v. Godfrey, 100 caused the extended seizure. “The F.4th 498, 505 (4th Cir. 2024) doctrine of qualified immunity (quoting Ewards v. City of ‘balances two important interests,’ Goldsboro, 178 F.3d 231, 250-51 (4th namely, the need to hold accountable Cir. 1999)). “Although a case directly public officials who exercise power on point is not required, existing irresponsibly, and the need to shield precedent ‘must have placed the officials who perform their duties statutory or constitutional question responsibly from ‘harassment, beyond debate.’” Id. at 505-06 distraction, and liability.’” Byers v. (quoting Kisela v. Hughes, 584 U.S. Painter, 173 F.4th 155, 160 (4th Cir. 100, 104 (2018)). 2026) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). “In the end, the key inquiry is whether ‘the law provided “fair warning” that “In resolving whether to award [the officer’s] conduct was qualified immunity at summary unconstitutional.’” Atkinson, 100 judgment, courts are to engage in a F.4th at 506. (quoting Booker v. S.C. Dep’t of Corr., 855 F.3d 533, 538 (4th the protective sweep was Cir. 2017) (alteration in Booker)). To constitutional. answer that question, courts look to precedent of the United States 1. The protective sweep is an Supreme Court and, in this district, exception to the warrant the Fourth Circuit Court of Appeals. requirement. Id. “‘It is a basic principle of Fourth In October 2014, these defendants Amendment law that searches and would have believed their actions seizures inside a home without a were reasonable. There was no clearly warrant are presumptively established law finding it unreasonable.’” United States v. unreasonable for deputies to secure a Jones, 667 F.3d 477, 482 (2012) residence and cars for eight hours (quoting Payton v. New York, 445 pending the issuance of a search U.S. 573, 586 (1980)) (alteration warrant where there was probable removed). Nevertheless, “‘because cause to believe the residence and cars the ultimate touchstone of the Fourth contained evidence of a crime and the Amendment is reasonableness,’” the individual with the possessory United States Supreme Court “has interest was under arrest and in identified certain ‘narrow and well- custody. delineated exceptions to the warrant requirement.’” Id. (quoting Kentucky Accordingly, Rugg, Morant, v. King, 563 U.S. 452, 459 (2011)); Kavanaugh, and Davis are entitled to Flippo v. West Virginia, 528 U.S. 11, qualified immunity for the claim that 13 (1999)). the eight-hour seizure of the residence and cars violated Lewis’s Fourth One such “well-settled” exception is Amendment rights. the protective sweep. See id. (citing Marland v. Buie, 494 U.S. 325 B. The defendants are not entitled (1990)). “A ‘protective sweep’ is a to summary judgment or quick and limited search of a qualified immunity as to the premises, incident to an arrest and protective sweep. conducted to protect the safety of police officers or others.” Buie, 494 The defendants are not entitled to U.S. at 327. “The protective sweep summary judgment on Kavanaugh’s exception requires more than a and Morant’s protective sweep inside generalized worry of danger” or “a Lewis’s house or Davis’s protective lack of information.” United States v. sweep of the property. The record Everett, 91 F.4th 698, 710 (4th Cir. evidence does not show, as a matter of 2024). law, that the basis for or the scope of Instead, the Fourth Amendment requires that “articulable facts which, taken together with the rational perpetrator was involved. See United inferences from those facts, would States v. Troy, No. 13- warrant a reasonably prudent officer 15(1)(DWF/LIB), 2013 WL 1827676, in believing that the area to be swept at *8 (D. Minn. Apr. 11, 2013) harbors an individual posing a danger (affirming sweep where suspect had to those on the arrest scene.” Buie, used a firearm during the bank 494 U.S. at 334. robbery two days earlier, two separate witnesses led officers to the defendant 2. The record evidence of the and his suspected accomplice, and justification for the protective officers knew the defendant was living sweep forecloses summary at his accomplice’s apartment), report judgment. and recommendation adopted, 2013 WL 1811297 Apr. 30, 2013). See also The justification for a protective United States v. Hardy, NO. 2:23-cr- sweep is the protection of the 43-RAH-JTA, 2023 WL 3218639, at arresting officers from the danger that *2 (M.D. Ala. Apr. 13, 2023) (sweep person in the area to be swept poses to affirmed where, just hours after an them and others. The nature of the armed robbery of a gas station, crime under investigation and the officers learned the get-away car had potential presence of co-conspirators arrived at a nearby hotel and the bear heavily on this analysis. For driver had exited the car with a gun example, arresting members of a drug and entered a hotel room, went to the trafficking organization often hotel, and saw at least two people supports this precaution. See, e.g., leave the room and believed the Everette, 91 F.4th at 711 (affirming suspect remained inside), report and three-and-a-half minute protective recommendation adopted, 2023 WL sweep of Everett’s residence where 3218504 (May 2, 2023), aff’d, 2024 officers knew he was a large-scale WL 3691890 (11th Cir. Aug. 7, 2024). drug distributor and had found “Considering the totality of the firearms in the homes of his co- circumstances,” the court found that conspirators). See also, e.g., Jones, the officers “knew specific and 667 F.3d at 484-85 (affirming articulable facts which gave rise to a protective sweep where officers had reasonable suspicion justifying a seen known drug users at the house, protective sweep.” Id. at *4. some of whom officers knew carried firearms, and, at the time of the However, simply because the suspect sweep, there were seven cars on the may have been armed earlier does not property when the Joneses claimed no necessarily justify a protective sweep one else was at the house). upon his arrest. For example, in United States v. Day, 2026 WL In the robbery context, applicable 904202 *5-6 (D.S.D. Apr. 2, 2026), here, courts have affirmed protective the officers did not have reasonable sweeps where more than one suspicion to believe there was a dangerous individual inside the the conversation and what he had arrestee’s apartment. Officers seen in the car. responded to the defendant’s apartment after a report that he had Morant arrived on scene, walked over brandished a firearm at two to Kavanaugh for an update, and then individuals nearby, and, at the time, proceeded to call Rugg. And it could they also knew he and an accomplice not have been a short call: Morant were wanted on suspicion of a robbery recounted the overnight report from five days earlier. Id. But he was alone Smithfield about their robbery, the when he brandished his firearm, there suspect, his car, and his residence, was no information anyone else lived Kavanaugh’s morning surveillance with him, officers heard nothing from and afternoon return to the residence inside his apartment to suggest during which he saw and arrested anyone was there, and, before the Lewis. After that call, he and sweep, they had lingered outside of Kavanaugh walked to the house to the apartment casually without any spoke with Lewis’s stepfather on the indication of concern for their safety porch. from within the apartment. Id. The court explained that “[t]he mere Not only had all of this taken place possibility someone else is inside a since Lewis’s arrest, but, at the time of residence is not enough to justify a the sweep, none of the robbery reports protective sweep.” Id. at *6. – from Hoke County or Smithfield – noted an accomplice. Kavanaugh had Here, not unlike the officers in Day, not seen anyone else at the residence Kavanaugh, Davis, and Morant had all morning. There were no additional been at the scene and outside of the unaccounted-for cars in the driveway. residence for a period of time before Morant’s refusal to take the word of a conducting the sweep, albeit the stranger does not justify the sweep record evidence does not say for how under these circumstances. See Jones, long. And they never behaved as if 667 F.3d at 484 (“[A]llowing the concerned for their safety, much less police to conduct protective sweeps for that of anyone inside the home. whenever they do not know whether After arresting Lewis and detaining anyone else is inside a home creates him in the patrol car, Kavanaugh an incentive for the police to stay approached the house, knocked on ignorant as to whether or not anyone the door, and spoke with Lewis’s else is inside a house in order to grandfather about Lewis, his arrest, conduct a protective sweep.”). And “a and the Nissan and Kia. He felt generalized worry of danger” is no comfortable enough on the property more sufficient to justify a protective to walk by the Kia to look through the sweep. See Everett, 91 F.4th at 710; windows on the way back to his patrol see also Jones, 667 F.3d at 484 (“[A] car. He then radioed Morant to report lack of information cannot provide an articulable basis upon which to justify a protective sweep.”). The record justified even when officers arrest the evidence does not support a finding, suspect “just outside the residence”); as a matter of law, that the sweep was see also United States v. Green, 599 justified. F.3d 360, 376 n.16 (4th Cir. 2010) (finding that “officers were fully The same holds true for Davis’s justified in entering the residence protective sweep of the yard during even if [the arrestee] was seized which time he photographed the outside the threshold [of the house] storage barn in the backyard and the [because] officers clearly saw” other inside of the cars. The Fourth people in the house, and people who Amendment not only protects the posed a threat to the if not secured). home from unreasonable search and seizure, but it also shields the home’s But what does it mean to arrest curtilage, “the area ‘immediately someone “just outside the residence?” surrounding and associated with the An arrest on the patio, on the porch, home.’” See Florida v. Jardines, 569 outside the threshold, or on the U.S. 1, 6 (2013) (quoting Oliver v. ground just feet from the door is close United States, 466 U.S. 170, 180 enough. See, e.g., Jean-Laurent v. (1984)). The same issues that plague Hunt, No. 5:23-CT-3231-FL, 2026 Morant’s and Kavanaugh’s protective WL 1494464, at *2, *4 (E.D.N.C. May sweep of the house undermine the 28, 2026); United States v. Cleckley, propriety of Davis’s warrantless entry No. 24-cr-00329-LKG, 2026 WL onto the property to walk around the 1265431, at *3 (D. Md. May 8, 2026); yard taking photographs. Cf. United United States v. Wingrove, No. 2:19- States v. August, 136 F.4th 595, 599, 00176, 2019 WL 5777646, at *2 601 (5th Cir. 2025) (upholding a (S.D.W. Va. Nov. 5, 2019). But protective sweep of a backyard when arresting a suspect outside of the officers responded to a shots-fired fence in front of his home, without call). any facts concerning officer safety, did not support the need for a protective 3. The record evidence of the sweep when the officer admitted that location of Lewis’s arrest “[he] could have just put [the suspect] forecloses summary judgment. in the car and driven away.” See United States v. Hogan, 38 F.3d 1148, In addition to officers’ knowledge and 1150 (10th Cir. 1994) (first alteration reasonable inferences, courts also in Hogan). consider the proximity of the arrest to the area to be swept. That is, an arrest Here, there is no record evidence of “just outside,” as opposed to inside, a the distance from the site of Lewis’s home may still support the need for a arrest to his residence. But there is no protective sweep. See Jones, 667 F.3d dispute that Kavanaugh arrested and at 485 n.10 (joining other circuits and detained Lewis at the mailbox across finding that a protective sweep may be the street from his residence, at which point the deputies could have left the Kavanaugh and Morant viewed the scene. Instead, Kavanaugh exposed contents of his cell phone during their himself twice to the alleged danger protective sweep.4 The law would not inside the house when he walked support such a search without a across the street to talk with Lewis’s warrant, as no exception to the stepfather. And this alleged danger warrant requirement would apply failed to stop Morant from joining under these circumstances. Kavanaugh the second time. 6. The record evidence of the 4. The record evidence of the consent to conduct the length of the sweep forecloses protective sweep forecloses summary judgment. summary judgment.

Even when there is a basis for a Another well-settled exception to the protective sweep, it can last “no longer warrant requirement is valid consent than is necessary to dispel the – “either from the individual whose reasonable suspicion of danger and in property is searched or from a third any event no longer than it takes to party who possesses common complete the arrest and depart the authority over the premises.” See premises.” Buie, 494 U.S. at 335-36. Illinois v. Rodriguez, 497 U.S. 177, 181 Kavanaugh and Morant each aver the (1990) (internal citations omitted). protective sweep took no more than “[T]he consent of one who possesses two minutes. On the other hand, common authority over premises or Lewis avers that it took an hour, effects is valid as against the absent, which is longer than the record nonconsenting person with whom evidence shows was necessary to that authority is shared.” See United answer their safety concerns. This is a States v. Matlock, 415 U.S. 164, 170 genuine dispute of material fact. (1974); see id. at 179 (describing the absent defendant as being “restrained 5. The record evidence of the in a squad car a distance from the extent of the sweep forecloses home”) (dissent)). This “[c]ommon summary judgment. authority rests on the mutual use of the property by persons generally “A protective sweep . . . does not having joint access or control for most entitle officers to conduct a full search purposes . . . .” Id. at 171 n.7 (noting of the premises, but rather extends the assumption of risk that a co- only to a limited inspection of spaces where a person may actually be found.” United States v. Green, 599 F.3d 360, 376. Lewis asserts that

4 The defendants’ opposition to this n.5. That assertion bears directly on evidence is their contention that the witness credibility, which is the province “claim is absurd.” See Defs.’ Reply at 15 of the jury to assess. habitant may permit the search of the dispute as to the length of time of the common area). sweep. If the sweep lasted as long as Lewis claims that it did, the evidence Since Matlock and Rodriguez, the forecloses a finding as a matter of law United States Supreme Court has that the hour-long search was a quick drawn a “fine line” in this context. See sweep. In addition, Lewis contends Georgia v. Randolph, 547 U.S. 103, the defendants reviewed the contents 121 (2006). That is, “if a potential of his unlocked cell phone, which was defendant with self-interest in in his bedroom, which forecloses the objecting is in fact at the door and conclusion that the defendants merely objects, the co-tenant’s permission searched the common areas to which does not suffice for a reasonable the consent extended for people who search, whereas the potential could pose a danger. objector, nearby but not invited to take part in the threshold colloquy, Furthermore, there is no evidence loses out.” Id. that Lewis’s stepfather consented to Davis walking around the yard, much To determine if a third-party’s less taking photographs while he was consent to enter is valid, courts ask if doing so. In sum, the Court cannot a reasonable officer, in possession of conclude as a matter of law that the the facts known to the officer at that defendants’ warrantless search of the time, would be warranted in believing residence was a lawful protective “the consenting party had authority sweep. over the premises.” Rodriguez, 497 U.S. at 189 (citing Terry v. Ohio, 392 7. The defendants are not entitled U.S. 1, 21-22 (1968)). Furthermore, to qualified immunity on the even when a third-party’s consent is protective sweep claim. valid, officers may not exceed the limits of that consent. See United At the time of the defendants’ States v. McFarley, 991 F.2d 1188, protective sweep, the following right 1191 (4th Cir. 1993). was clearly established: the right to be free from the warrantless search of Here, Lewis’s stepfather gave a home, absent the reasonable belief Kavanaugh and Morant consent to based on specific and articulable facts search the house, and Lewis has and their inferences at the time of presented no evidence to dispute this. arrest in or just outside the home But whether the execution of the “that the area swept harbored an protective sweep complied with the individual posing a danger to the confines of that consent is an open officer or others.” See Buie, 494 U.S. question. Lewis’s stepfather at 327, 335. It was also clearly consented to the defendants’ request established that a co-tenant’s consent to conduct a quick protective sweep. to search a residence only extends to As explained above, there is a genuine areas of joint access or control, see Matlock, 415 U.S. at 479, and officers Court has similarly interpreted may not exceed the limits of consent, Lewis’s claims for relief. see McFarley, 991 F.2d at 1191. Even so, the Court’s dismissal of the Accordingly, based on the record § 1983 claim against Kavanaugh for evidence, the defendants are not arresting Lewis on a Johnston County entitled to qualified immunity on the warrant would foreclose his claims of protective sweep claim.5 false arrest and false imprisonment. Compare Order and R. of U.S. Mag. J. C. The state law claims, to the (R&R) at 22 (finding it was reasonable extent Lewis asserted any, do to believe there was probable cause), not survive. Docket Entry 44, recommended ruling adopted, Order, Docket Entry In his Complaint, Lewis refers to 55 with Williams v. City of claims of trespass, false arrest, false Jacksonville Police Dep’t, 599 S.E.2d imprisonment, and state due process 422, 430 (N.C. Ct. App. 2004) in his “Basis for Jurisdiction” (“Probable cause is an absolute bar to paragraph to explain the a claim for false arrest.”) and Myrick supplemental jurisdiction over those v. Cooley, 371 S.E.2d 492, 494 (N.C. claims. See Compl. at 4 ¶ B. He does Ct. App. 1988) (recognizing that false not specifically mention those claims arrest is one way to commit false again. Nor does anyone else – at the imprisonment). In addition, the motion to dismiss or the motion for Court noted that, to the extent Lewis summary judgment stage. Lewis’s was asserting a trespass claim, it filings have focused on the § 1983 failed. See R&R at 8 n.3. For all of constitutional claims against the these reasons, in addition to the defendants. And he did not lodge any requirement that there be no objections to the earlier Report & adequate state law remedy, the state Recommendation on the basis of any due process claim would fail. state law claims against the defendants. In other words, the parties have litigated this case as though Lewis only asserted § 1983 claims against the defendants, and the

5 As they did in their motion to dismiss, n.10. See also White v. City of the defendants argue the absence of Greensboro, 608 F. Supp. 3d 248, 266- Lewis’s compensable injury. See Br. in 67 (M.D.N.C. 2022) (recognizing that, Supp. at 33-35. But, as they even in the absence of compensatory acknowledge, Lewis may nevertheless be damages, a § 1983 plaintiff may recover entitled to nominal damages. See id. at 35 nominal damages). Judgment be GRANTED IN PART V. CONCLUSION as to the seizure of the property pending a search warrant and It is hereby RECOMMENDED that DENIED IN PART as to the the Defendants’ Motion for Summary protective sweep.

JoAnna Gibson McFadden United States Magistrate Judge

August 28, 2026 Durham, North Carolina