Fairbanks v. Danvers, Town of

United States District Court

District of Massachusetts

)

MATTHEW FAIRBANKS, )

)

Plaintiff, )

)

v. ) Civil Action No.

) 16-10023-NMG

OFFICER DANA O’HAGAN, DETECTIVE )

WILLIAM CARLETON, OFFICER )

WILLIAM CASSIDY, OFFICER JAMES )

GEORGE and SERGEANT KEVIN )

JANVRIN, )

)

Defendants. )

)

MEMORANDUM & ORDER

GORTON, J.

This civil action arises out of an alleged domestic assault

and battery by Matthew Fairbanks (“Fairbanks” or “plaintiff”) on

his estranged father during a social gathering at plaintiff’s

apartment in Danvers, Massachusetts. The local police

department was notified and Officers Dana O’Hagan (“Officer

O’Hagan”), James George (“Officer George”), and William Cassidy

(“Officer Cassidy”), and Sergeant Kevin Janvrin (“Sergeant

Janvrin”) and Detective William Carleton (“Detective Carleton”)

(collectively “defendants”) responded. Fairbanks was

subsequently arrested for assault and battery and the police

discovered numerous weapons and ammunition after a search of his

apartment.

Fairbanks brought this action pursuant to 42 U.S.C. § 1983

for, among other things, false arrest and unlawful search and

seizure in violation of the Fourth and Fourteenth Amendments to

the United States Constitution. In August, 2018, this Court

allowed defendants’ motion for summary judgment on the remaining

counts for false arrest (Count I) and unlawful search and

seizure (Counts II and III), holding that 1) the police had

probable cause to arrest Fairbanks at the time of the incident

and 2) their subsequent search of the apartment and seizure of

the weapons found were justified both as a protective sweep and

by the exigent circumstances exception to the Fourth Amendment

warrant requirement.

Plaintiff has now filed a motion under Fed. R. Civ. P.

59(e) for reconsideration of the Court’s prior decision and

amendment of its judgment. He contends, among other things,

that the Court 1) ignored evidence that created genuine issues

of material fact with respect to the allegedly unlawful search

and seizure and 2) failed to address his argument that there

were three separate entries into his apartment on the night of

the incident. After reviewing its previous Memorandum and Order

(Docket No. 71), the filings of the parties and the affidavits

of the relevant individuals, the Court agrees with plaintiff and

will alter and amend its prior order on defendants’ motion for

summary judgment.1

I. Background

A. Facts

For the Court’s initial recitation of the relevant facts,

see the prior Memorandum and Order on defendants’ motion for

summary judgment (Docket No. 71).

B. Additional Facts Not Previously Addressed

The Court herein supplements its statement of facts set

forth in its prior Memorandum and Order.2

First, there now appears to be a genuine issue of material

fact as to whether the .45 caliber pistol, knives and other

weapons paraphernalia were in plain view when the officers

confiscated them from the apartment without a warrant. Officer

Cassidy submits in his affidavit that Maria Melendez

(“Melendez”) led the officers to the laundry area of the

apartment and opened

closet-like double doors revealing a .45 pistol and

some knives and bullets and magazines that she had

placed on top of a washer or dryer.

1 Fairbanks does not contest the Court’s dismissal of his claim for false

arrest and thus the Court’s decision as to that claim will be confirmed.

2 In his motion to reconsider, Fairbanks also asserts that the disputed

affidavit submitted by his counsel is admissible. Because this Court finds

that the affidavits of Officer Cassidy, Detective Carleton and Maria Melendez

create a genuine issue of material fact, it is unnecessary for it to decide

that question.

Melendez denies that version of events, however, explaining in

her affidavit that, while she told the officers where the pistol

and knives were located, she never escorted them to the weapons.

Rather, she contends that she left the apartment before the

officers performed their protective sweep. Drawing a reasonable

inference in favor of plaintiff as the non-moving party on

summary judgment, see O’Connor v. Steeves, 994 F.2d 905, 907

(1st Cir. 1993), Melendez’s affidavit suggests that it was the

officers who opened the closet in the laundry room to discover

the pistol and knives and thus those weapons were arguably not

in plain view.

Second, there also appears to be a genuine issue of

material fact as to whether there was a separate entry into the

apartment after the initial protective sweep and whether the

weapons and paraphernalia were seized during that subsequent

search. According to the affidavit of Officer Cassidy, he did

not move any objects during the protective sweep and thereafter

stood-by outside the apartment door to make sure no

one entered the apartment . . . [while] Sergeant

Janvrin made arrangements for building maintenance and

the police department’s photographer to respond to the

apartment.

Detective Carleton explains in his affidavit that

[a]fter about 30 minutes from initial dispatch, [he]

was requested to respond in [his] role as department

photographer . . . [and that] [w]hen [he] arrived,

officers had already entered [the apartment].

Detective Carleton also submits that he did not move or

seize any items but took photographs of the laundry area with

the pistol, knives and ammunition on top of the washer and

dryer. Drawing a reasonable inference in favor of plaintiff,

the affidavits of Officer Cassidy and Detective Carleton suggest

that there may have been a separate entry and search of the

apartment after the initial protective sweep.

II. Rule 59(e) Motion

A. Legal Standard

Upon timely motion, a court may alter or amend a judgment.

Fed. R. Civ. P. 59(e). A court has considerable discretion in

granting or denying a Rule 59(e) motion but such relief is

extraordinary and should be used sparingly. Palmer v. Champion

Mortg., 465 F.3d 24, 30 (1st Cir. 2006). A motion to alter or

amend a judgment will be allowed only if the movant demonstrates

1) an intervening change in the law, 2) a clear legal error or

3) that newly discovered evidence warrants modification of the

judgment. In re Genzyme Corp. Sec. Litig., 754 F.3d 31, 46 (1st

Cir. 2014).

B. Relevant Fourth Amendment Law

The Fourth Amendment, as incorporated against the States by

the Fourteenth Amendment, protects individuals from unreasonable

searches and seizures. U.S. Const. amend IV; Mapp v. Ohio, 367

U.S. 643 (1961). A warrantless search of the home is

presumptively unreasonable unless some exception to the warrant

requirement applies. Payton v. New York, 445 U.S. 573, 586-87

(1980). One such exception is the ability of officers to

perform a warrantless “protective sweep” of a home in

conjunction with an arrest inside or immediately outside the

home. Maryland v. Buie, 494 U.S. 325, 327 (1990); United States

v. Lawlor, 406 F.3d 37, 41-42 (1st Cir. 2005) (holding that a

protective sweep conducted following an arrest just outside the

home may be reasonable). To be valid, a protective sweep must

be incident to an arrest, conducted to protect the safety of

police officers or others and “narrowly confined to a cursory

visual inspection of those places in which a person might be

hiding”. Buie, 494 U.S. at 327. The search must also be

supported by an officer’s reasonable suspicion based on specific

and articulable facts that the area swept may harbor a dangerous

individual. Id.

A second exception to the Fourth Amendment’s warrant

requirement is the exigent circumstances exception. That

exception permits an officer to enter a home in response to an

emergency situation, such as to prevent the imminent destruction

of evidence or to respond to a potential threat to the safety or

lives of the public or police officers. Fletcher v. Town of

Clinton, 196 F.3d 41, 49 (1st Cir. 1999). To justify a

warrantless entry under the exigent circumstances exception, an

officer must show that he or she had probable cause to enter the

premises and an objectively reasonable basis for concluding that

an exigency existed. United States v. Almonte-Baez, 857 F.3d 27,

31-32 (1st Cir. 2017). Probable cause exists where the totality

of the circumstances creates “a fair probability that contraband

or evidence of a crime will be found in a particular place”. Id.

at 31 (quoting United States v. Tanguay, 787 F.3d 44, 50 (1st

Cir. 2015)).

Even when an initial warrantless entry is justified by some

exception to the warrant requirement, it is unlawful for an

officer who has left the premises to reenter it once the

justification for the initial search has dissipated unless a

warrant has been secured or there is some new exigent

circumstance justifying the reentry. Michigan v. Tyler, 436 U.S.

499, 511 (1978); Bilida v. McCleod, 211 F.3d 166, 172-73 (1st

Cir. 2000) (“[W]here the justification for the original

warrantless entry has completely expired and the officials have

left, we see no basis in Tyler or in constitutional policy for

any general rule that officials can then reenter without a

warrant simply to seize contraband or evidence that was seen in

plain view during the original entry.”). Where the reentry is

merely a continuation of the initial search, however, there is

no new search requiring new justification or a warrant. Tyler,

436 U.S. 511.

When an officer is lawfully searching a premises, the

officer may seize any evidence of a crime or contraband that is

in plain view even if he or she does not have a warrant. Arizona

v. Hicks, 480 U.S. 321, 325-28 (1987). To seize an item

pursuant to the plain view doctrine, the officer must 1) be

lawfully present in the position from which the item is clearly

visible, 2) have probable cause to believe that the item is

evidence of a crime or is contraband and 3) have a lawful right

of access to the item. United States v. Gamache, 792 F.3d 194,

199 (1st Cir. 2015).

C. Application

1. The Alleged Warrantless Reentry

For the reasons discussed in its prior Memorandum and

Order, the Court reaffirms its holding that the initial entry

and search of Fairbanks’s apartment was justified both as a

protective sweep and by the exigent circumstances exception to

the warrant requirement. Defendants had reason to believe that

there may have been others in the apartment in the presence of

loaded weapons based on comments of the victim and another

witness that Fairbanks was having a party in his apartment and

possessed loaded guns. Furthermore, the officers had reason to

believe that Fairbanks was unstable and potentially dangerous

given the evidence that he had violently assaulted his father

and statements that he was a former U.S. Marine suffering from

post-traumatic stress disorder.

As explained above, however, there is a genuine dispute of

fact as to whether there was a subsequent reentry into the

apartment after the initial protective sweep. Fairbanks

contends that, after initially searching his apartment and

discovering the weapons and ammunition, the officers secured the

premises and waited outside for Detective Carleton, the

department photographer, to arrive. Plaintiff asserts that it

was only after photographs were taken during the subsequent

reentry that the weapons, ammunition and other paraphernalia

were seized and removed from the apartment. The affidavits of

Officer Cassidy and Detective Carleton provide support for

plaintiff’s contention that there was a separate search of his

apartment after the protective sweep. Notably, defendants do

not contend that there was only a single entry into the

apartment but rather simply maintain that the initial entry was

justified as a protective sweep or by exigent circumstances.

Assuming for present purposes that there was a subsequent

reentry into the apartment to take photographs, that search was

unlawful because defendants did not have a warrant nor did any

exception to the warrant requirement apply at that point. By

that time, the police knew there were no other individuals

located in the apartment and thus the second search could not be

justified as a protective sweep.

Moreover, the apartment had been secured and officers

posted outside so that no one could enter to retrieve the loaded

weapons and thus there were no exigent circumstances present at

that time. Finally, the water from the broken toilet had

already been turned off during the initial protective sweep and

thus the subsequent entry could not have been justified pursuant

to the officers’ community caretaking function. See Matalon v.

Hynnes, 806 F.3d 627, 633-35 (1st Cir. 2015) (defining the

community caretaking exception to the warrant requirement as

involving those responsibilities of police officers discharged

separately from their normal criminal enforcement activities).

The sole purpose of the alleged reentry was to investigate the

alleged crime and collect evidence. A warrantless reentry under

those circumstances was unlawful and the seizure of the weapons

or other paraphernalia was also unlawful to the extent that they

were collected during that reentry.

Defendants maintain that even if the reentry and seizure of

the weapons and paraphernalia were unlawful, they are

nevertheless entitled to summary judgment on the grounds of

qualified immunity. Qualified immunity shields government

officials from civil liability unless 1) the plaintiff’s

allegations establish a violation of a protected right, 2) that

right was clearly established at the time of the defendant’s

alleged misconduct and 3) a reasonable officer in the

defendant’s position would have known that his or her conduct

violated the protected right. McKenney v. Mangino, 873 F.3d 75,

80-81 (1st Cir. 2017) (explaining that a plaintiff must point to

a controlling authority or consensus of cases of persuasive

authority to demonstrate that the protected right was clearly

established).

The decision of the First Circuit Court of Appeals in

Bilida clearly establishes that an officer cannot reenter

premises to collect evidence previously seen in plain view once

the justification for the initial entry has expired. Bilida, 211

F.3d at 172-73. Once the officers conducted the initial

protective sweep, secured the apartment and subsequently left to

wait for the department photographer, they should have known

that they needed a warrant or some other excuse to the warrant

requirement to reenter. Accordingly, defendants cannot benefit

from the doctrine of qualified immunity with respect to the

search of the apartment after the initial protective sweep.

Because the Court previously failed to address whether

there was a subsequent search of the apartment after the initial

protective sweep and there is a genuine issue of material fact

on that question, it erred in allowing defendants’ motion for

summary judgment on plaintiff’s claim for unlawful search (Count

II).

2. Plain View Doctrine

The Court did not address in its prior Memorandum and Order

whether the .45 pistol, knives and ammunition were in plain view

when they were seized by the police officers. That omission was

a clear legal error in light of the conflicting evidence of

whether Melendez led the officers to the weapons in the laundry

area. The Court previously found that the assertions in

Melendez’s affidavit were sufficient to deny defendants’ claim

that they had consent to enter and search the apartment but it

did not consider the allegations in her affidavit as being

sufficient to raise a genuine dispute as to whether the weapons

were in plain view when discovered by the officers.

If Melendez’s allegations are credited, she told the

officers where to find the weapons and ammunition but was not

present when they were actually found. That infers that it was

the officers who opened the closet doors in the laundry room to

discover the weapons and ammunition. The opening of storage

spaces for the purpose of discovering contraband or evidence of

a crime, rather than to uncover a hidden and potentially

dangerous individual, is not justified as part of a protective

sweep. See Buie, 494 U.S. at 334. Under such circumstances, the

weapons and ammunition would not have originally been in plain

view nor would the officers have had a lawful right of access to

them and thus the plain view doctrine would not apply.

Conversely, if defendants’ version of events is taken as

true, it was Melendez who led the officers to the weapons and

ammunition in the laundry room and opened the closet doors to

reveal them. No search within the meaning of the Fourth

Amendment is implicated when a private individual unassociated

with the police searches or seizes an item. See United States v.

Jacobsen, 466 U.S. 109, 113-14 (1984). Assuming that it was

Melendez who revealed the weapons and ammunition to the officers

and that she was not acting as an agent of the police at the

time, the plain view doctrine would apply. The officers were

lawfully present in the laundry room due to the protective sweep

and exigent circumstances. They had probable cause to believe

that the weapons and ammunition were evidence of a crime because

of the reported violent assault and because they were not

properly stored. Finally, the officers had a lawful right of

access to the weapons and ammunition because they were in plain

view at that point.

The discrepancy in the testimony creates a genuine issue of

material fact which the Court should have considered in its

initial Memorandum and Order. Furthermore, the prerequisites of

the plain view doctrine were clearly established at the time of

the incident by both the Supreme Court and the First Circuit

such that a reasonable officer should have been aware of its

parameters and thus defendants are not entitled to qualified

immunity. See, e.g., Hicks, 480 U.S. at 325-28; Gamache, 792

F.3d at 199; United States v. Paradis, 351 F.3d 21, 31 (1st Cir.

2003) (holding that a gun was not in plain view where it was

hidden underneath a pile of clothing and stuffed animals).

Therefore, the Court erred in allowing defendants’ motion

for summary judgment with respect to the claim for unlawful

seizure of the .45 pistol, knives and ammunition (Count III).

ORDER

For the foregoing reasons, plaintiff’s motion for

reconsideration and to alter or amend the judgment (Docket No.

73) is ALLOWED and the Court’s prior Memorandum and Order

(Docket No. 71) is AMENDED as follows:

1) defendants’ motion for summary judgment as to Count I of

the complaint for false arrest is ALLOWED; and

2) defendants’ motion for summary judgment as to Count II

for unlawful search and as to Count III for unlawful

seizure is DENIED.

The judgement entered on August 10, 2018 (Docket No. 72) is

hereby VACATED.

So ordered.

/s/ Nathaniel M. Gorton______

Nathaniel M. Gorton

United States District Judge

Dated May 10, 2019