Kestenberg v. Dwyer

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

JERROLD KESTENBERG,

Plaintiff,

v.

No. 20-cv-11514-DLC

ROBERT C. DWYER and

TIMOTHY FURLONG,

Defendants.

ORDER ON DEFENDANTS’ MOTION TO DISMISS (D. 8)

Plaintiff Jerrold Kestenberg alleges that officers violated

his Fourth Amendment rights by surveilling his residence without

a warrant. He brings suit under 42 U.S.C. § 1983 against then

Nahant Police Officer Timothy Furlong and Nahant Police Chief

Robert Dwyer. The defendants move to dismiss under Federal Rule

of Civil Procedure 12(b)(6) for failure to state a viable claim;

the plaintiff opposes. (D. 8, 12). For the reasons explained

below, the court will allow the motion to dismiss.

RELEVANT FACTS

The facts are taken from the complaint (D. 1) and are

accepted as true for purposes of the present motion.

The plaintiff previously resided in Nahant. During that

time, he and his then girlfriend, Laura Scarpaci, became

involved in a heated feud with their neighbors, Enrichetta

Ricciardelli and Luciano Montefusco. (Id. ¶¶ 6-10).

Ricciardelli obtained a no-harassment order against Scarpaci by

default in 2015, and Scarpaci obtained a stay away order against

Montefusco. (Id. ¶¶ 12-13).

At some point during 2015 or 2016, Ricciardelli began

repeatedly contacting the Nahant police to complain that

Scarpaci was violating the no-harassment order. (Id. ¶ 14). In

the course of these contacts, Ricciardelli developed

inappropriately close relationships with certain Nahant police

officers, including Officer Furlong. (Id. ¶ 16). The officers

would visit Ricciardelli’s home and spend time conversing with

her, and she deposited evidence allegedly against Scarpaci with

Officer Furlong for safekeeping. (Id. ¶¶ 17-18).

When Ricciardelli reported to police that Scarpaci was

routinely violating the no-harassment order on Wednesday

afternoons, Officer Furlong set up surveillance in what he

described as an “undercover sting operation.” (Id. ¶¶ 19-20).

Officer Furlong stated that Chief Dwyer gave him permission to

conduct the surveillance but no officer obtained a search

warrant to conduct the surveillance. (Id. ¶¶ 27-28).

During the surveillance, Officer Furlong or another officer

would sit in an unmarked car near the plaintiff’s home, where

they could observe activity in the plaintiff’s yard, and “quite

likely in the interior of his home.” (Id. ¶¶ 21-22). After

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several weeks, the Nahant Police ended the surveillance because

they saw no indication that Scarpaci was violating the no-

harassment order. (Id. ¶¶ 23, 26).

Kestenberg did not learn about the surveillance until 2019.

(Id. ¶ 24).

LEGAL STANDARD

A Rule 12(b)(6) motion to dismiss challenges a party’s

complaint for failing to state claim. In deciding such a

motion, a court must “accept as true all well-pleaded facts set

forth in the complaint and draw all reasonable inferences

therefrom in the pleader’s favor.” Haley v. City of Boston, 657

F.3d 39, 46 (1st Cir. 2011) (quoting Artuso v. Vertex Pharm.,

Inc., 637 F.3d 1, 5 (1st Cir. 2011)).

“A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). However,

the court is “not bound to accept as true a legal conclusion

couched as a factual allegation.” Iqbal, 556 U.S. at 678

(quoting Twombly, 550 U.S. at 555). Simply put, the court

should assume that well-pleaded facts are genuine and then

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determine whether such facts state a plausible claim for relief.

Iqbal, 556 U.S. at 679.

DISCUSSION

The plaintiff contends that officers violated his Fourth

Amendment rights by failing to obtain a warrant before

surveilling his residence. In moving to dismiss, the defendants

argue that the Fourth Amendment is not implicated on these facts

because the plaintiff had no expectation of privacy in any part

of his residence that could be seen from the street, and no

warrant therefore was required to conduct surveillance. They

argue further that, even assuming a warrant was required, the

officers are entitled to qualified immunity because no

reasonable officer in their position would have clearly

understood their actions to amount to a violation of the

plaintiff’s constitutional rights. The court agrees.

No Warrant Was Needed to Observe the Plaintiff’s Home From

the Street

Distilled, the complaint alleges that Officer Furlong “or

some other” police officer, at some point in 2016, after

receiving permission from Chief Dwyer, and for a period of

“several weeks,” would “sit in an unmarked car near” the

plaintiff’s and his neighbor’s homes, probably “on Wednesday

afternoons,” in a spot that allowed officers to observe the

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plaintiff’s yard and “quite likely” the interior of his home as

well. The plaintiff contends that this activity constituted a

Fourth Amendment search requiring a warrant.

The Fourth Amendment protects people from unreasonable

searches. Katz v. United States, 389 U.S. 347 (1967). To show

that the officers’ surveillance amounted to an unreasonable

search here, the plaintiff must show that he had a reasonable

expectation of privacy in the place searched, which in turn

entails showing that (1) he has exhibited an actual, subjective

expectation of privacy in the area searched, and (2) his

subjective expectation is one that society is prepared to

recognize as objectively reasonable. United States v. Rheault,

561 F.3d 55, 59 (1st Cir. 2009).

The defendants argue that even accepting the plaintiff’s

allegations as true, he cannot show that he had an objectively

reasonable expectation of privacy in any area Officer Furlong

could observe from the street. They are correct. Courts have

resoundingly rejected the notion that people may have an

objective expectation of privacy in what the naked eye can

observe from a public vantage point. “An individual does not

have an expectation of privacy in items or places he exposes to

the public.” United States v. Bucci, 582 F.3d 108, 116 (1st Cir.

2009) (no reasonable expectation of privacy in driveway or

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garage interior which officers surveilled for eight months by

placing a video camera on a utility pole across from defendant’s

residence); see also Katz, 389 U.S. at 351 (“What a person

knowingly exposes to the public, even in his own home or office,

is not a subject of Fourth Amendment protection.”); Maryland v.

Macon, 472 U.S. 463, 469 (1985) (“What a person knowingly

exposes to the public is not a subject of Fourth Amendment

protection[.]”) (citation and internal punctuation omitted);

California v. Ciraolo, 476 U.S. 207, 213 (1986) (“[t]he Fourth

Amendment protection of the home has never been extended to

require law enforcement officers to shield their eyes when

passing by a home on public thoroughfares”); United States v.

Roccio, 981 F.2d 587, 591 (1st Cir. 1992) (“there is no

expectation of privacy in a driveway that is exposed to the

public”) (citing United States v. Hensel, 699 F.2d 18, 32-33

(1st Cir. 1983)).

However, a person may be found to have an objectively

reasonable expectation of privacy in their curtilage or home

interior where a law enforcement officer has physically entered

the curtilage area to gather evidence. See Florida v. Jardines,

569 U.S. 1, 5-6 (2013). In such an instance, a search within

the meaning of the Fourth Amendment has occurred and such

conduct “is presumptively unreasonable absent a warrant.”

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United States v. Owens, 917 F.3d 26, 34 (1st Cir. 2019) (citing

Collins v. Virginia, 138 S. Ct. 1663, 1670 (2018)). By

contrast, an officer’s naked-eye observations of a home from the

street do not amount to a search requiring a warrant or

otherwise implicate the Fourth Amendment. See, e.g., Bucci, 582

F.3d at 116 (no reasonable expectation of privacy in driveway or

garage interior); Ciraolo, 476 U.S. at 213-14 (warrantless

aerial observation of fenced-in backyard deemed curtilage did

not violate Fourth Amendment).

That is the case here. The complaint does not allege that

officers transgressed the curtilage or did anything more than

observe the plaintiff’s yard and “quite likely” the interior of

his residence from the street. Assuming that is what occurred,

the precedent cited makes clear that none of this activity

amounted to a search implicating the Fourth Amendment, because

the plaintiff had no objectively reasonable expectation of

privacy in any area exposed to the public. It follows that the

defendants did not violate the plaintiff’s rights in

facilitating or conducting a warrantless surveillance of his

residence from the street.

To be sure, the plaintiff cites to a number of cases in his

opposition but none of them suggests that an officer’s naked-eye

observations from the street of an area exposed to the public

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may constitute a Fourth Amendment search requiring a warrant.

The plaintiff in particular cites to the Massachusetts Supreme

Judicial Court’s (SJC) recent decision in Commonwealth v. Mora,

485 Mass. 360 (2020), but his reliance on the case is

unavailing. In Mora, the SJC held that the continuous pole

camera surveillance of the exterior of two residences for at

least two months constituted a search under article 14 of the

Massachusetts Declaration of Rights. Id. at 376-77. The

plaintiff argues that Mora is supportive and instructive to the

extent the SJC found the mere surveillance of a home’s exterior

to constitute a search requiring a warrant. However, putting

aside that Mora involved a consideration of Massachusetts’ state

constitution rather than the U.S. Constitution, and regardless

is not binding on this court, the SJC was specifically concerned

with an issue not in play here, namely the long-term use of pole

cameras that allow officers to create a “mosaic” and obtain a

“far richer profile” of a person’s life than would be possible

through human surveillance. Id. The SJC held that a continuous

pole camera search exceeding two months was a “search” under

Massachusetts’ state constitution, but acknowledged at the same

time that a “briefer period” “might not implicate the same

reasonable expectation of privacy.” Id. In any event, the SJC

in no way deigned to address whether an officer parked on the

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street must obtain a warrant to look into a yard or window that

is visible to the public.

Assuming a Violation, the Defendants Are Entitled to

Qualified Immunity

Even assuming arguendo that the surveillance of the

plaintiff’s residence somehow amounted to a violation of his

Fourth Amendment rights, the defendants would be entitled to

qualified immunity. “The doctrine of qualified immunity shields

officials from civil liability so long as their conduct does not

violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Mullenix v.

Luna, 577 U.S. 7, 11 (2015) (quoting Pearson v. Callahan, 555

U.S. 223, 231 (2009)). In determining whether a defendant is

entitled to qualified immunity, a court should consider: “(1)

whether the facts alleged or shown by the plaintiff make out a

violation of a constitutional right; and (2) if so, whether the

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

alleged violation.” Ciolino v. Gikas, 861 F.3d 296, 303 (1st

Cir. 2017). The second prong has two components: “(a) whether

the legal contours of the right in question were sufficiently

clear that a reasonable officer would have understood that what

he was doing violated the right, and (b) whether in the

particular factual context of the case, a reasonable officer

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would have understood that his conduct violated the right.” Id.

While qualified immunity cannot protect Officer Furlong or Chief

Dwyer from liability if, on an objective basis, no reasonably

competent officer would have acted as they did, “if officers of

reasonable competence could disagree on [the lawfulness of the

alleged conduct], immunity should be recognized.” Malley v.

Briggs, 475 U.S. 335, 341 (1986). Thus, the defense of

qualified immunity “provides ample protection to all but the

plainly incompetent or those who knowingly violate the law.”

Id. at 349.

Here, even assuming the facts as alleged were read to make

out a violation of a Fourth Amendment right to be free from an

unreasonable, i.e., warrantless search, that right was not so

clearly established in 2016 that a reasonable officer would have

understood the officers’ actions to be improper. On the

contrary, and as discussed above, courts have consistently

affirmed that an officer standing in the street needs no warrant

to observe whatever may be visible to the public, and the court

has not been directed to any decision calling this proposition

into question. To the extent the plaintiff argues that Mora

applies and reflects a change in the law, Mora notably was not

decided until 2020, years after the events in question here.

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CONCLUSION

In sum, the defendants did not violate the plaintiff’s

Fourth Amendment rights even taking all the complaint’s factual

allegations as true. The defendants would enjoy qualified

immunity in any event because no officer in their position would

have clearly understood their actions to be improper.

Accordingly, Defendants Robert C. Dwyer and Timothy M. Furlong’s

Motion to Dismiss Pursuant to F.R.C.P. 12(b)(6) (D. 8) is

GRANTED. The complaint is hereby dismissed.

So Ordered.

/s/ Donald L. Cabell

DONALD L. CABELL, U.S.M.J.

DATED: September 22, 2021

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