Wynn-Thomas v. Dempsey

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

MIKEESE WYNN-THOMAS, 8:21CV54

Plaintiff,

MEMORANDUM

vs. AND ORDER

PATRICK DEMPSEY, Badge # 2122,

in his individual capacity,

Defendant.

I. INTRODUCTION

Plaintiff, Mikeese Wynn-Thomas, a state prisoner who appears pro se, alleges

Defendant, Patrick Dempsey, an Omaha police officer who is sued in his individual

capacity, conducted an unlawful search and seizure. This matter is now before the

court on Defendant’s motion for summary judgment based on qualified immunity

(Filing 26). Upon careful review of the record, the court finds the motion should be

granted and Plaintiff’s action should be dismissed with prejudice.

II. SUMMARY JUDGMENT STANDARD

“A party may move for summary judgment, identifying each claim or

defense—or the part of each claim or defense—on which summary judgment is

sought. The court shall grant summary judgment if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as

a matter of law. The court should state on the record the reasons for granting or

denying the motion.” Fed. R. Civ. P. 56(a).

In reviewing a motion for summary judgment, the court views the facts in the

light most favorable to the non-moving party and gives that party “the benefit of all

reasonable inferences that can be drawn from the record.” State Nat’l Ins. Co., Inc.

v. Washington Int’l Ins. Co., 304 F. Supp. 3d 827, 831-32 (D. Neb. 2018) (quoting

Minnesota ex rel. N. Pac Ctr., Inc. v. BNSF Ry. Co., 686 F.3d 567, 571 (8th Cir.

2012)). It is not the court’s function to weigh evidence in the summary judgment

record to determine the truth of any factual issue; the court merely determines

whether there is evidence creating a genuine issue for trial. See Bell v. Conopco,

Inc., 186 F.3d 1099, 1101 (8th Cir. 1999).

“There is a genuine dispute when the evidence is such that a reasonable jury

could return a verdict for the non-moving party.” Dick v. Dickinson State Univ., 826

F.3d 1054, 1061 (8th Cir. 2016) (internal quotations and citations omitted). “A fact

is material if it ‘might affect the outcome of the suit.’” Id. (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

The moving party bears the initial responsibility of informing the court of the

basis for the motion, and must identify those portions of the record which the moving

party believes show the lack of a genuine issue of material fact. Torgerson v. City of

Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the moving party does

so, the burden then shifts to the nonmoving party, who “may not rest upon mere

allegation or denials of his pleading, but must set forth specific facts showing that

there is a genuine issue for trial.” Anderson, 477 U.S. at 256. If the record taken as

a whole could not lead a rational trier of fact to find for the nonmoving party,

summary judgment should be granted. Smith-Bunge v. Wisconsin Cent., Ltd., 946

F.3d 420, 424 (8th Cir. 2019).

The initial burden on a moving party “may be discharged by ‘showing’—that

is, pointing out to the district court—that there is an absence of evidence to support

the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986);

see also Bedford v. Doe, 880 F.3d 993, 996 (8th Cir. 2018) (“The moving party can

satisfy its burden in either of two ways: it can produce evidence negating an essential

element of the nonmoving party’s case, or it can show that the nonmoving party does

not have enough evidence of an essential element of its claim to carry its ultimate

burden of persuasion at trial.”); Johnson v. Wheeling Mach. Prods., 779 F.3d 514,

517 (8th Cir. 2015) (moving party need not produce evidence showing “the absence

of a genuine issue of material fact.”).

In response to the moving party’s showing, the nonmoving party’s burden is

to produce “specific facts sufficient to raise a genuine issue for trial.” Haggenmiller

v. ABM Parking Servs., Inc., 837 F.3d 879, 884 (8th Cir. 2016) (quoting Gibson v.

Am. Greetings Corp., 670 F.3d 844, 853 (8th Cir. 2012)). The nonmoving party

“must do more than simply show that there is some metaphysical doubt as to the

material facts, and must come forward with specific facts showing that there is a

genuine issue for trial.” Wagner v. Gallup, Inc., 788 F.3d 877, 882 (8th Cir. 2015)

(quoting Torgerson, 643 F.3d at 1042).

III. QUALIFIED IMMUNITY

Qualified immunity shields officials from civil liability in a 42 U.S.C. §1983

action when their conduct “does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Morgan v.

Robinson, 920 F.3d 521 (8th Cir. 2019) (quoting Pierson v. California, 555 U.S.

223, 231 (2009)). Qualified immunity involves a two-step analysis: “(1) whether the

facts shown by the plaintiff make out a violation of a constitutional or statutory right,

and (2) whether that right was clearly established at the time of the defendant’s

alleged misconduct.” Id. at 523 (quoting Nord v. Walsh Cty., 757 F.3d 734, 738 (8th

Cir. 2014)). Unless both of these questions are answered affirmatively, a defendant

is entitled to qualified immunity. Moreover, courts are permitted to exercise their

sound discretion in determining which of the two prongs should be addressed first.

Id. (quoting Nord, 757 F.3d at 738-39).

“A clearly established right is one that is ‘sufficiently clear that every

reasonable official would have understood that what he is doing violates that right.’”

Id. (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). The clearly established

right should not be defined at a high level of generality, but instead must be

particularized to the facts of the case. Id. There does not need to be a case directly

on point, but existing precedent “must have placed the statutory or constitutional

question beyond debate.” Id. at 524 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741

(2011)). Qualified immunity gives government officials “breathing room” to make

reasonable but mistaken judgments, and protects “all but the plainly incompetent or

those who knowingly violate the law.” Id. (quoting Stanton v. Sims, 571 U.S. 3, 6

(2013) (per curiam)).

“Qualified immunity is an affirmative defense for which the defendant carries

the burden of proof. The plaintiff, however, must demonstrate that the law is clearly

established.” Sparr v. Ward, 306 F.3d 589, 593 (8th Cir. 2002); see Creighton v.

Anderson, 922 F.2d 443, 447 (8th Cir. 1990) (“Once the plaintiff has demonstrated

that the law governing the plaintiffs’ rights was clearly established at the time of the

defendant’s acts, the defendant has the burden of proof with respect to all other

elements of the qualified immunity defense.”).

IV. SUMMARY JUDGMENT PROCEDURE

A party asserting that a fact cannot be or is genuinely disputed must support

the assertion by:

(A) citing to particular parts of materials in the record, including

depositions, documents, electronically stored information, affidavits or

declarations, stipulations (including those made for purposes of the

motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or

presence of a genuine dispute, or that an adverse party cannot produce

admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1).

This court’s local rules further specify that “[t]he moving party must include

in the brief in support of the summary judgment motion a separate statement of

material facts about which the moving party contends there is no genuine issue to be

tried and that entitles the moving party to judgment as a matter of law.” NECivR

56.1(a)(1). “Properly referenced material facts in the movant’s statement are

considered admitted unless controverted in the opposing party’s response.” NECivR

56.1(1)(b)(1) (underlining omitted).

In this case, Plaintiff has failed to make any response to Defendant’s motion

for summary judgment. “Failure to file an opposing brief is not considered a

confession of a motion but precludes the opposing party from contesting the moving

party’s statement of facts.” NECivR 7.1(b)(1)(C). Consequently, Defendant’s

statement of material facts (Filing 27, at 3-6), which finds support in the record, will

be deemed admitted for purposes of deciding the motion for summary judgment.

Although Plaintiff is proceeding pro se, he is bound by and must comply with all

local and federal procedural rules. NEGenR 1.3(g).

V. UNDISPUTED MATERIAL FACTS

The court finds there is no genuine dispute as to the following material facts

which are properly referenced in separate numbered paragraphs in Defendant’s brief

in support of his motion for summary judgment:

1. On March 25, 2018, Defendant saw a Snapchat post showing Plaintiff

posing with a handgun that was taken on or shortly before March 25, 2022.

Defendant knew that possession of a handgun was a violation of the Plaintiff’s

probation.

2. Defendant contacted the Plaintiff’s Probation Officer Christine Trosper,

and she requested that Defendant and the Omaha Police North Gang Suppression

Unit do a probation check and search of the Plaintiff where he was living at his

mother’s home at 6113 N. 24th Street in Omaha, Nebraska.

3. Defendant knocked on the door of 6113 N. 24th Street several times

beginning at approximately 5:15 p.m. on March 25, 2018. Plaintiff did not come to

the door for two minutes. During those two minutes, Defendant heard a loud thump

and commotion, which sounded like someone upstairs in the residence trying to hide

a heavy object, such as a gun.

4. Plaintiff was placed on probation for 24 months on November 1, 2017, after

pleading guilty to carrying a concealed weapon.

5. The Order of Probation, dated November 1, 2017, ordered that Plaintiff

shall, in pertinent part: (1) Obey all city ordinances, the laws of any state, and the

laws of the United States … (2) Be subject to search by any law enforcement officer

day or night. This includes, but not limited to the following; the probationer’s person,

personal or real property, living area or automobile. (3) Not possess, or have under

the probationer’s custody, care, or control, or have immediate access to, any firearm,

ammunition, oleo capsicum pepper spray, or tear gas.

6. Plaintiff was on probation on March 25, 2018.

7. Defendant initially searched Plaintiff’s bedroom, finding a plastic bag in a

box containing trash that included marijuana shake of less than one gram.

8. Plaintiff called his mother Jamie Wynn on the house phone during the

search. Ms. Wynn asked to speak to Defendant.

9. Defendant identified himself to Ms. Wynn, explained the situation,

including that Plaintiff took a while to answer the door, and that they heard thuds

upstairs, and that the police wished to search the rest of the upstairs rooms. Ms.

Wynn identified herself and gave police voluntary verbal permission to search the

other upstairs rooms.

10. During the search of Ms. Wynn’s bedroom, Defendant found a handgun

(Taurus model 24/7 Pro 9 mm, Serial No. TZL60174) on the floor of the bedroom

closet.

11. After a record check, the gun was determined to be stolen.

12. Defendant called Ms. Wynn on his cellular phone and asked if the handgun

found was hers. She denied the gun was hers and acknowledged again that she gave

permission to search her bedroom.

13. Defendant and the other Omaha police officers took Plaintiff and his

girlfriend, J’Lah Ray, who was also in the house, to Omaha Police Central

Headquarters.

14. In an interview at Omaha Police Central Headquarters, after being read

her rights and agreeing to talk to Defendant, Ms. Ray stated to Defendant that the

handgun belonged to Plaintiff.

15. In an interview at Omaha Police Headquarters, after being read his rights

and agreeing to talk to the Defendant, Plaintiff stated to Defendant that he purchased

a handgun from a guy on the streets, that he knew he was not supposed to be in

possession of a handgun, and that the handgun may be stolen.

16. Defendant served Requests for Admission upon Plaintiff on September

30, 2021. Plaintiff never responded to the Defendant’s Requests for Admissions, and

it has been more than 30 days since they were served. In those Requests (Exhibit 9,

Filing 28-9), Plaintiff was asked to admit that: (1) he was arrested on August 22,

2017, for carrying a concealed weapon; (2) he pleaded guilty to the charge of

carrying a concealed weapon on November 1, 2017; (3) he was sentenced to 24

months’ probation for conviction on the charge of carrying a concealed weapon on

November 1, 2017; (4) he was on probation on March 25, 2018; (5) as part of his

probation on March 25, 2018, Plaintiff was ordered to obey all city ordinances, the

laws of any state, and the laws of the United States; (6) as part of his probation on

March 25, 2018, Plaintiff was ordered to be subject to search by any law enforcement

officer day or night; (7) as part of his probation on March 25, 2018, Plaintiff was

ordered that his person, personal or real property, his living area, and his automobile

were subject to search by any law enforcement officer day or night; (8) as part of his

probation on March 25, 2018, Plaintiff was ordered to not possess, or have under his

custody, care, or control, any firearm or ammunition; (9) as part of his probation on

March 25, 2018, Plaintiff was ordered to not have immediate access to any firearm

or ammunition; (10) a picture of Plaintiff, holding a firearm, was posted on social

media on or about March 25, 2018; (11) Plaintiff’s probation officer on March 25,

2018, was Probation Officer Christine Trosper; (12) Probation Officer Christine

Trosper saw the picture of Plaintiff with a firearm posted on social medical on or

about March 25, 2018; (13) Probation Officer Christine Trosper requested Omaha

police officers, including Defendant, to search Plaintiff’s real property/living

quarters on or about March 25, 2018; (14) Defendant, along with other Omaha police

officers, searched Plaintiff’s real property/living quarters on March 25, 2018; (15)

at the time of the search on March 25, 2018, Plaintiff had in his possession a stolen

Taurus model 24/7 Pro 9mm handgun (Serial No. TZL60174); (16) at the time of

the search on March 25, 2018, Plaintiff had immediate access to a stolen Taurus

model 24/7 Pro 9mm handgun (Serial No. TZL60174); (17) when Defendant came

to Plaintiff’s door on March 25, 2018, Plaintiff attempted to hide the Taurus model

24/7 Pro 9mm handgun (Serial No. TZL60174) in Jamie Wynn’s closet; (18)

Plaintiff made a loud noise when attempting to hide the Taurus model 24/7 Pro 9mm

handgun (Serial No. TZL60174) in Jamie Wynn’s closet on March 25, 2018; (19)

Defendant, along with other Omaha police officers, searched Plaintiff’s living area,

including his bedroom, on March 25, 2018; (20) Plaintiff had a plastic bag

containing marijuana shake in a cardboard box containing trash in or near his

bedroom at the time of the search; (21) Defendant called Jamie Wynn on the

landline/house phone on March 25, 2018; (22) Defendant called Jamie Wynn on the

landline/house phone on March 25, 2018 after searching Plaintiff’s bedroom; (23)

Defendant talked to Jamie Wynn on the landline/house phone on March 25, 2018;

(24) Defendant received permission from Jamie Wynn to search the other two

bedrooms in the house on March 25, 2018; (25) Jamie Wynn’s bedroom was legally

searched on March 25, 2018; (26) a Taurus model 24/7 Pro 9mm handgun (Serial

No. TZL60174) was found in the bedroom closet of Jamie Wynn’s bedroom during

the search on March 25, 2018; (27) the Taurus model 24/7 Pro 9mm handgun (Serial

No. TZL60174) found in Jamie Wynn’s closet on March 25, 2018 belonged to

Plaintiff; (28) Plaintiff admitted to possession of the stolen Taurus model 24/7 Pro

9mm handgun (Serial No. TZL60174) during questioning by police on March 25,

2018; (29) Plaintiff agreed to talk with police prior to admitting possession of a

stolen firearm on March 25, 2018; (30) Plaintiff was read a Miranda warning prior

to agreeing to talk with police on March 25, 2018; (31) Plaintiff was charged with

possession of a stolen firearm on March 27, 2018; (32) Plaintiff was convicted of

possession of a stolen firearm on November 7, 2018; (33) Plaintiff has not been

successful on any appeals of his November 7, 2018 conviction of possession of a

stolen firearm; (34) no post-conviction relief has been granted to Plaintiff in regard

to his November 7, 2018 conviction of possession of a stolen firearm; (35) Plaintiff’s

November 7, 2018 conviction of possession of a stolen firearm has not been

invalidated; (36) Plaintiff suffered no damages as the result of any actions of

Defendant; (37) Plaintiff has not lost any wages as a result of any actions of

Defendant; and (38) Plaintiff failed to plead an actual, compensable injury in his

Complaint and Jury Demand.

The court further finds that each of foregoing 38 requests for admission is

deemed admitted and is conclusively established for purposes of this proceeding.

See Fed. R. Civ. P. 36(a)(3) & (b) (“A matter is admitted unless, within 30 days after

being served, the party to whom the request is directed serves on the requesting party

a written answer or objection addressed to the matter and signed by the party or its

attorney.… A matter admitted under this rule is conclusively established unless the

court, on motion, permits the admission to be withdrawn or amended.”).

VI. ANALYSIS

In conducting an initial review of Plaintiff’s Complaint (Filing 1), the court

concluded there were sufficient facts alleged to state plausible claims for relief under

42 U.S.C. § 1983 for violations of Plaintiff’s Fourth Amendment rights:

Essentially, Plaintiff alleges that Dempsey and other police officers,

who were part of OPD’s gang unit, showed up at the residence of

Plaintiff’s mother, where Plaintiff was also residing, under the pretense

of conducting a probation check. Plaintiff alleges his probation officer

had no knowledge of this police action and did not authorize a

warrantless search of the premises. After conducting a search of

Plaintiff’s living quarters and finding nothing, Dempsey allegedly

pretended to place a phone call to Plaintiff’s mother and then told

Plaintiff his mother had given consent for the police to search her

bedroom. Police then searched the bedroom and claimed to have found

a stolen handgun hidden in the back of the closet. Plaintiff was placed

under arrest and subsequently charged with possession of a stolen

firearm and with violating the terms of his probation.

Memorandum and Order entered June 4, 2021 (Filing 11 at 6-7). Defendant has now

proven with uncontroverted evidence that Plaintiff’s allegations are false—i.e., the

probation check was authorized and Plaintiff’s mother consented to the search of her

bedroom where the handgun was found.

In its memorandum opinion on initial review, the court also discussed the

Supreme Court’s holding in Heck v. Humphrey 512 U.S. 477 (1994), that “in order

to recover damages for allegedly unconstitutional conviction or imprisonment, or for

other harm caused by actions whose unlawfulness would render a conviction or

sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has

been reversed on direct appeal, expunged by executive order, declared invalid by a

state tribunal authorized to make such determination, or called into question by a

federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Id., at 486-

87 (footnote omitted). “[A] § 1983 cause of action for damages attributable to an

unconstitutional conviction or sentence does not accrue until the conviction or

sentence has been invalidated.” Id., at 489-90 (footnote omitted).

Defendant argues that Plaintiff’s claims are Heck-barred because there is no

evidence his November 7, 2018 conviction for possession of a stolen firearm has

been overturned, but “a suit for damages attributable to an allegedly unreasonable

search may lie even if the challenged search produced evidence that was introduced

in a criminal trial resulting in the § 1983 plaintiff’s still-outstanding conviction.” Id.,

n. 7. See, e.g., Cooney v. Arkansas, No. 21-3824, 2022 WL 288143, at *1 (8th Cir.

Feb. 1, 2022) (unpublished) (reversing district court’s dismissal of plaintiff’s § 1983

claims as Heck-barred because “his arguments that the searches lacked probable

cause do not necessarily call into question the validity of his state court

convictions”). Here, however, Plaintiff has admitted he suffered no damages as a

result of any actions of Defendant.

The Eighth Circuit has stated that Heck-barred claims should be dismissed

without prejudice so the plaintiff can refile if he can satisfy the favorable-termination

requirement at some point. See Thomas v. Eschen, 928 F.3d 709, 713 (8th Cir. 2019)

(citing Schafer v. Moore, 46 F.3d 43, 45 (8th Cir. 1995)). As will be discussed below,

however, the court finds Plaintiff’s claims should be dismissed with prejudice

because, regardless of whether any damage claims have accrued, there was no Fourth

Amendment violation. Indeed, Plaintiff has admitted to the lawfulness of the search.

The Fourth Amendment, which is made applicable to states by the Fourteenth

Amendment, guarantees that the “right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures, shall not be

violated ….” U.S. Const. amend. IV. In establishing a violation of his Fourth

Amendment rights under 42 U.S.C. §1983, a plaintiff must show that a search or

seizure occurred and that it was unreasonable. Brower v. County of Inyo, 489 U.S.

593, 599 (1989). A Fourth Amendment “seizure” requires an intentional act by a

governmental actor. McCoy v. City of Monticello, 342 F.3d 842, 847 (8th Cir. 2003).

“Searches conducted outside the judicial process, without prior approval by

judge or magistrate, are per se unreasonable under the Fourth Amendment—subject

only to a few specifically established and well-delineated exceptions.” United States

v. Vore, 743 F.3d 1175, 1179 (8th Cir. 2014) (quoting Katz v. United States, 389

U.S. 347, 357 (1967)). In the Eighth Circuit, a plaintiff has the burden of proof in a

§ 1983 action claiming a Fourth Amendment violation for a warrantless search. Der

v. Connolly, 666 F.3d 1120, 1127 (8th Cir. 2012). However, the defendant has the

burden of producing evidence that an exception to the warrant requirement applies.

As the Seventh Circuit explained, “[e]ven if a presumption of

unreasonableness arises from the fact of a warrantless search [or entry],

that does not serve in a civil case to shift ‘the burden of proof in the

sense of the risk of nonpersuasion.’” Valance [v. Wisel, 110 F.3d 1269,

1279 (7th Cir. 1997)] (quoting Fed. R. Evid. 301). Instead, such

“presumption merely serves to impose on the defendant ‘the burden of

going forward with evidence to meet or rebut the presumption.’” Id.

(quoting Fed. R. Evid. 301). A defendant may satisfy this burden of

production by “produc[ing] evidence of consent or of some other

recognized exception to the warrant requirement.” Id. at 1278. “Yet

once the defendant has done so, ‘the ultimate risk of nonpersuasion

must remain squarely on the plaintiff in accordance with established

principles governing civil trials.’” Id. (quoting Ruggiero [v. Krzeminski,

928 F.2d 558, 563 (2d Cir. 1991))].

Id. at 1128.

In United States v. Knights, 534 U.S. 112, 121 (2001), the Supreme Court

concluded that when a probationer is subject to a probationary search condition, the

Fourth Amendment permits an officer to search pursuant to that condition without a

warrant based upon that officer’s reasonable suspicion that the probationer is

violating his probation’s terms. The Supreme Court reasoned that a warrantless

search of a probationer’s house requires no more than reasonable suspicion because

a probationer has “significantly diminished privacy interests.” Id. at 121-22. Five

years later, the Supreme Court held that “the Fourth Amendment does not prohibit a

police officer from conducting a suspicionless search of a parolee,” at least where

this is made a condition of parole and the parolee is “unambiguously” made aware

of the condition. Samson v. California, 547 U.S. 843, 857 (2006); see Lane v.

Nading, 927 F.3d 1018, 1023-24 (8th Cir. 2019). Defendant, however, does not

argue that he was authorized to conduct a suspicionless search.

In this case, Defendant had reasonable suspicion Plaintiff was violating his

probation’s terms because, according to Defendant’s affidavit (Exhibit 1, Filing 28-

1), he personally “saw a post on social media, specifically Snapchat, of [Plaintiff]

posing with a handgun before the search” and “knew that [Plaintiff] was not allowed

to be in possession of a firearm per the terms of his probation.” (Ibid., at ¶ 5.) While

waiting outside the house for two minutes for Plaintiff to open the door, Defendant

“heard a loud thud and commotion that seemed to be coming from the upstairs of

the residence” and he “believed this to be an unknown party hiding or attempting to

hide a heavy object in the house.” (Ibid., at ¶ 7.) Suspecting that the handgun had

been hidden upstairs, and not finding it in Plaintiff’s bedroom, Defendant sought and

obtained permission from Plaintiff’s mother by telephone to search the other two

upstairs bedrooms. After the handgun was found in the back of the closet in Ms.

Wynn’s bedroom, Defendant phoned her back and she reaffirmed that consent had

been given for the search; she also stated that the gun was not hers. (Ibid., at ¶¶ 12-

18.) These phone conversations were recorded on Defendant’s bodycam, along with

all other events during the probation check. (See Exhibit 3.)

“The Fourth Amendment generally prohibits the warrantless entry of a

person’s home, whether to make an arrest or to search for specific objects. The

prohibition does not apply, however, to situations in which voluntary consent has

been obtained, either from the individual whose property is searched, or from a third

party who possesses common authority over the premises.” Illinois v. Rodriguez,

497 U.S. 177, 181(1990). “Even if the third party lacked the requisite common

authority, the Fourth Amendment is not violated if the police reasonably believed

the consent was valid.” United States v. Hilliard, 490 F.3d 635, 639 (2007) (citing

Rodriguez, 497 U.S. at 188-89). “In such a case, the critical inquiry is whether the

facts available to the police at the time the consent is given would warrant a person

of reasonable caution to believe the consenting party had authority over the place to

be searched.” Id.

Ms. Wynn had authority to authorize the search, given that she is the renter of

the house located at 6113 N. 24th Street. (Exhibit 1, Filing 28-1, at ¶ 4.) The only

restriction put on the search was that the police officers not “tear up” the upstairs

rooms. (Ibid., at ¶ 15.) The consent was given orally, which is entirely permissible.

See United States v. Magallon, 984 F.3d 1263, 1281 (2021) (“Consent can be given

orally or in writing.”). The video evidence (Exhibit 3) also shows that the consent

was given voluntarily. “A consent is voluntary if the consenting individual had “a

reasonable appreciation of the nature and significance of his actions.” United States

v. Saenz, 474 F.3d 1132, 1136 (8th Cir. 2007) (quoting United States v. Rambo, 789

F.2d 1289, 1297 (8th Cir. 1986)). There is no question that a reasonably competent

police officer in Defendant’s position could conclude that Ms. Wynn had authority

to consent to a search of the bedroom where the handgun was found, and that she

gave such consent voluntarily. Consequently, there was no constitutional violation,

and Defendant is entitled to qualified immunity without any need to consider

whether the rights claimed by Plaintiff were clearly established.

VII. CONCLUSION

The court finds there is no genuine dispute as to any material fact and

Defendant is entitled to judgment as a matter of law.

IT IS THEREFORE ORDERED:

1. Defendant’s motion for summary judgment (Filing 26) is granted, and

Plaintiff's action is dismissed with prejudice.

2. Judgment shall be entered by separate document.

Dated this 20th day of July 2022.

BY THE COURT:

Kiuchiard G. Ke YH

Richard G. A

Senior United States District Judge

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