Carpenter v. Perry

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

SARA CARPENTER and

ROBERT CARPENTER, individuals,

Plaintiffs,

v. Civil Action No. 2:16-cv-4199

J.D. PERRY, individually, and

R.S. MINOR, individually, and

J.R. POWERS, individually,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending is plaintiffs’ renewed motion for judgment as

a matter of law, or in the alternative, motion for a new trial,

filed December 13, 2017. Pls.’ Mot., ECF No. 84.

I. Background

On December 5 through 7, 2017, this case was tried by

a jury resulting in a verdict in favor of the defendants and

against the plaintiffs. The governing issue in the case is

whether there was an unreasonable search and seizure of

plaintiffs’ home by members of the West Virginia State Police in

violation of the Fourth Amendment of the United States

Constitution through 42 U.S.C. § 1983. The jury returned the

verdict as follows, in pertinent part:

1. We, the jury find by a preponderance of the

evidence that a Defendant, or Defendants,

violated Sara and Robert Carpenter’s Fourth

Amendment right to be free from an

unreasonable search and seizure of their home.

Yes

X No

Jury Verdict, ECF No. 81.

This suit arose from the entry of the defendant

officers into the home of Robert Scott Carpenter and Sara

Carpenter on May 13, 2014 in order to conduct an annual sex

offender verification with respect to Robert Scott Carpenter

pursuant to W. Va. Code § 15-12-10, of certain information

prescribed by statute, such as cell phones, autos, and internet

accounts and user names. See W. Va. Code § 15-12-2(d). It is

undisputed that the defendant officers did not have a warrant to

enter the Carpenter home. Prior to trial, the court had denied

defendants’ motion for summary judgment, finding that the

officers’ entry for the purposes of a sex offender verification

was not justified under the special needs exception to the

Fourth Amendment. Mem. Op. Order, ECF No. 61 at 32.

Furthermore, the defendant officers were not entitled to

qualified immunity, as “[n]othing in the statutes or rules would

give a reasonable officer reason to believe that he or she may

enter and search the home of a registered sex offender without a

warrant, consent, exigent circumstances, or any other applicable

exception to the Fourth Amendment.” Id. at 35.

On December 4, 2017, the eve of trial, defendants

proposed a supplemental jury instruction on the issue of

consent. See ECF No. 69. Plaintiffs made no objection to its

timeliness either at or before trial, but instead assented to

and supplied input on the language of the instruction.

At the close of the evidence, plaintiffs moved for

judgment as a matter of law pursuant to Rule 50(a)(1) of the

Federal Rules of Civil Procedure. The court did not grant this

motion, and instead submitted the case to the jury. The court

gave the jury the following instruction on the issue of consent,

without objection:

A police officer may, without violating the

Fourth Amendment, enter and search a residence

without a warrant (or any other justification) if

he has been given consent by someone with the

authority to grant such consent. People who live

at the residence have the authority to grant such

consent, as does any other person who possesses

common authority over or some other sufficient

relationship to that residence.

Even if the person who gave the officer consent did

not actually have the authority to grant such consent,

the officer may still enter without violating the

Fourth Amendment if he reasonably (even though

mistakenly) believed that that person had the

authority to grant consent. For example, an officer

does not violate the Fourth Amendment if he obtains

consent from someone whom he reasonably believes is a

resident but who actually is not a resident.

Consent need not be expressed verbally. It can, for

example, be implied by the circumstances, or from a

person’s words, gestures or conduct. The question is

whether the typical, reasonable person would have

understood the exchange between the officer and the

resident as implying consent. For example, even

though a resident of a house actually was not giving

his consent to police officers, a police officer may

have reasonably believed that the resident was giving

his consent (through his words, gestures, conduct, and

so forth). Consent once given may be revoked at any

time.

Therefore, if you find that any person who lived at

the plaintiffs’ residence, or any person who possessed

common authority over or some other sufficient

relationship to that residence, gave the defendant

officers consent to enter the plaintiffs’ residence on

May 13, 2014, then you should find for the defendants.

Or if you find that a person who actually did not have

the authority to grant such consent, but whom the

defendant officers reasonably believed had such

authority, consented to the defendant officers

entering the plaintiffs’ residence on May 13, 2014,

then you should find for the defendants.

“Consent” Jury Inst. (emphasis in original).

The plaintiffs requested and it was agreed to add the

following sentence in the above jury instruction: “Consent once

given may be revoked at any time.” See Pls.’ Mot. ¶ 6.

Excepting this sentence, the instruction on consent largely

matched that proffered by the defendants, with the only other

alterations being a single lexical substitution and the omission

of defendants’ requested reference to the standards relevant to

the doctrine of qualified immunity. See Defs.’ Proposed Supp.

Jury Instruction, ECF No. 69-1.

Plaintiffs now renew their motion for judgment as a

matter of law and assert that they are entitled to such judgment

because “[t]here is no legal theory upon which the jury could

have ruled the search constitutional.” Pls.’ Mem. Supp. Mot. at

2 (“Pls.’ Mem.”). Specifically, plaintiffs contend that “[a]ll

witnesses at trial who were present at the incident agreed in

their testimony that Sara Carpenter demanded a search warrant

multiple times and that she was upset at the officers’ presence

in her home,” which, according to the plaintiffs, proves the

officers lacked consent to search the residence. Id.

II. Governing Standard

Federal Rule of Civil Procedure 50(b) provides:

If the court does not grant a motion for judgment

as a matter of law made under Rule 50(a), the

court is considered to have submitted the action

to the jury subject to the court's later deciding

the legal questions raised by the motion. No

later than 28 days after the entry of judgment --

or if the motion addresses a jury issue not

decided by a verdict, no later than 28 days after

the jury was discharged -- the movant may file a

renewed motion for judgment as a matter of law

and may include an alternative or joint request

for a new trial under Rule 59. In ruling on the

renewed motion, the court may:

(1) allow judgment on the verdict, if the jury

returned a verdict;

(2) order a new trial; or

(3) direct the entry of judgment as a matter of

law.

Fed. R. Civ. P. 50(b).

“Judgment as a matter of law is proper when, without

weighing the credibility of the evidence, there can be but one

reasonable conclusion as to the proper judgment[.]” U.S. ex

rel. DRC, Inc. v. Custer Battles, LLC, 562 F.3d 295, 305 (4th

Cir. 2009) (quoting Chaudhry v. Gallerizzo, 174 F.3d 394, 405

(4th Cir. 1999)).

“Because federal courts do not directly review jury

verdicts, constrained, as [they] are, by the Seventh Amendment,

the [proponent of a Rule 50 motion] bears a hefty burden in

establishing that the evidence is not sufficient to support the

[jury’s verdict].” Price v. City of Charlotte, 93 F.3d 1241,

1249 (4th Cir. 1996). A court “may not substitute [its]

judgment for that of the jury or make credibility

determinations” but must “accord the utmost respect to jury

verdicts and tread gingerly in reviewing them.” Id. If any

reasonable jury could have returned a verdict for the prevailing

party, then a Rule 50(b) motion should be denied. See Myrick v.

Prime Ins. Syndicate, Inc., 395 F.3d 485, 489-90 (4th Cir. 2005)

(citing Hofherr v. Dart Indus. Inc., 853 F.2d 259, 261-62 (4th

Cir. 1988)). “If the evidence as a whole is susceptible of more

than one reasonable inference, a jury issue is created and a

motion for judgment as a matter of law should be denied.” Id.

at 489-90.

As an alternative to judgment as a matter of law, a

new trial may be granted under Fed. R. Civ. P. 59 if "(1) the

verdict is against the clear weight of the evidence, or (2) is

based upon evidence which is false, or (3) will result in a

miscarriage of justice, even though there may be substantial

evidence which would prevent the direction of a verdict."

Minter v. Wells Fargo Bank, N.A., 762 F.3d 339, 346 (4th Cir.

2014) (quoting Knussman v. Maryland, 272 F.3d 625, 639 (4th Cir.

2001)).

III. Discussion

a. Plaintiffs’ renewed motion under Rule 50

The plaintiffs’ motion is chiefly concerned with the

issue of whether the defendant officers had proper consent to

enter and search the home. See generally Pls.’ Mot.

A warrantless search is reasonable under the Fourth

Amendment if it is conducted pursuant to an occupant’s consent.

See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (citing

Davis v. United States, 328 U.S. 582, 593-94 (1946)). Consent

must be “freely and voluntarily given” and it may be revoked

prior to the completion of a search. United States v.

Lattimore, 87 F.3d 647, 650 (4th Cir. 1996) (en banc); Bumper v.

North Carolina, 391 U.S. 543, 548 (1968). “Whether [a party]

knew that he possessed a right to refuse consent also is

relevant in determining the voluntariness of consent . . ..”

Lattimore, 87 F.3d at 650; see also Schneckloth, 412 U.S. at

248-49. “It is well established that there can be no effective

consent to a search . . . if that consent follows a law

enforcement officer’s assertion of an independent right to

engage in such conduct.” Orhorhaghe v. I.N.S., 38 F.3d 488, 500

(9th Cir. 1994) (cited with approval by Lattimore, 87 F.3d at

652); see also Bumper, 391 U.S. at 548-49 (voluntary consent

requires “more than acquiescence to a claim of lawful

authority”).

Consent to search may be given by a “third party who

possessed common authority over or other sufficient relationship

to the premises or effects sought to be inspected.” United

States v. Matlock, 415 U.S. 164, 171 (1974). If officers

reasonably believe at the time of their entry that the third

party possesses the authority to consent, there is no Fourth

Amendment violation. Illinois v. Rodriguez, 497 U.S. 177, 186

(1990). However, “a physically present inhabitant’s express

refusal of consent to a police search is dispositive as to him,

regardless of the consent of a fellow occupant.” Georgia v.

Randolph, 547 U.S. 103, 122-23 (2006). When a party “with self-

interest in objecting is in fact at the door and objects, the

co-tenant’s permission does not suffice for a reasonable

search,” however, if the potential objector is “nearby but not

invited to take part in the threshold colloquy, [she] loses

out.” Id. at 121. An objecting co-tenant may register her

objection through words or expressive conduct. Bonivert v. City

of Clarkston, 883 F.3d 865, 875 (9th Cir. 2018); see also United

States v. Williams, 574 F. Supp. 2d 530, 545 n.11 (W.D. Pa.

2008), aff'd, 416 F. App'x 130 (3d Cir. 2011) (objection may be

implied); United States v. Phillips, No. 18-cr-102, 2018 WL

4046500, at *3 n.2 (N.D. Okla. Aug. 24, 2018) (same); Waiters v.

Stoddard, No. 1:12-cv-496, 2013 WL 12322080, at *3 n.4 (N.D. Ga.

Aug. 15, 2013) (same).

On the night of the incident at issue, both Trooper

Minor and Trooper Powers entered the Carpenter home. Tr.

Proceedings Direct Examination Minor (“Direct Minor”), ECF No.

97 at 17. Trooper Minor testified that he was the one who made

the first contact with anyone in the Carpenter home. Direct

Minor at 13, 15-16; Tr. Proceedings Cross-Examination Minor

(“Cross Minor”), ECF No. 93 at 24-26. At the time Trooper Minor

made contact, Trooper Powers testified that he was not at the

door with Trooper Minor when he first entered, but instead “was

at the corner of the garage.” Tr. Proceedings Cross-Examination

Powers (“Cross Powers”), ECF No. 93 at 5. Trooper Minor knocked

on the door and was met by Pierce Carpenter, Mr. Carpenter’s

adult son from a previous relationship. Direct Minor at 15-16;

Cross Minor at 26; see Mem. Op. Order, ECF No. 61 at 7. Trooper

Minor testified that the interaction proceeded as follows:

Q. Isn't it correct that when the door was

opened, that you stepped in the door prior to

saying anything?

A. No, sir, that's not correct.

Q. So what is your testimony? You state that you

asked him a question?

A. I -- the adult male answers the door. I

greeted him by name, to my thought. "Hey, Scott,

how are you tonight?" Because Scott Carpenter is

the gentleman that I'm looking for. The

gentleman responds kind of just a "Hi," like kind

of in shock after -- an afterthought. But I

didn't really understand at the time it was just

-- just maybe shock that we come over and knocked

on his door. I don't know. I don't know what

the deal with that was. But he seemed a

little bit, like, maybe taken off. And so I

said, "Hey, Scott, we're here to do a sex

offender verification. Buddy, it's dark, it's

raining. Do you mind if we come inside?" He

steps out of the way, motions, and we come

inside.

Q. Why would you call him Scott when his name is

Robert?

A. Because right there on the registry sheet, he

goes by Scott.

Q. So you didn't say, "Are you Robert Carpenter"?

A. No, sir. You know, you get more with sugar

than you do with spice, and sometimes you just

want to try to keep things light, if possible.

Q. And so during this conversation, you walk

inside?

A. After he gestured us and allowed us in.

Q. So he says --

A. At least, allowed me in. I'm focused on

what's in front of me. I can't tell you when

Trooper Powers exactly walked in.

. . . .

Q. Pierce Carpenter never expressly consented to

you being in his house, did he?

A. Yes, sir, the express consent in the obvious -

- more than obvious implied consent of opening

the door, gesturing -- upon my inquiry to come

inside, you know, gestured for me to come inside.

Q. In fact, he was confused, as per your own

testimony, correct?

A. He may have been confused, but he gestured me

to allow me in the house.

Direct Minor at 16-17, 21; see Cross Minor at 26.

Almost immediately after Trooper Minor entered, Sara

Carpenter came to the door, according to Trooper Powers:

Q. So Trooper Minor knocked on the door. Did he

say anything when he knocked or did he just

knock?

A. I can remember the first thing that I heard

after Trooper Minor knocked on the door was Sara

Carpenter yelling and screaming.

Q. This is before the door was answered?

A. No. The door was already open. Like, when I

came around, I heard her just yelling and

carrying on. And he was already inside the door.

Tr. Proceedings Direct Examination Powers (“Direct Powers”), ECF

No. 96 at 7. Trooper Minor testified that when he first entered

the door:

A. There was some confusion. Once he allowed us

in, I think I started trying to ask him things.

And there was some confusion, and he yells,

"Sara," -- yells for her to come down the hall.

Q. So, as far as you -- as far as you can tell at

the time, the younger adult male, the younger

male who answered the door appeared to be

confused, right?

A. Once we got in. Once you start, you know,

evaluating your situation, we realized that there

is maybe some confusion here.

Q. Okay. And then at some point in the confusion

that ensued, he informed you -- if you couldn't

already tell that he was an 18-year-old -- that

he wasn't the 50-year-old sex offender that you

were looking for, right?

A. I don't even know if we kept talking with him

or if it's when Sara came down the hall that she

was the one that said so.

Q. So Sara Carpenter saw what was going on pretty

quickly; is that fair?

A. Generally.

Q. Okay. And then she came up and then she saw

state troopers in her house, right?

A. Yes.

Direct Minor at 17-18.

Upon seeing Trooper Minor in her entry, Sara Carpenter

began pointedly inquiring about a warrant:

Q. And she asked for a warrant?

A. She wanted to know why we were there and asked

immediately about, “Do you have a warrant?”

. . . .

“Do you need a warrant? Do you have a warrant?

Can I have a copy of the warrant?”

It was explained that we were not there for a

search, there was no warrant; we are here for a

sex offender verification. She was continuing to

be irritable. She was on a rant.

. . . .

Q. So she asked you for a warrant, and you told

her that, no, you did not have a warrant because

you didn’t need a warrant, in your opinion; is

that right?

A. Correct, sir.

Direct Minor at 18-19.

Trooper Powers further testified:

Q. So what was the first thing that you saw?

A. When we went inside, Sara Carpenter was just

belligerent, yelling. We were trying to explain

to her we’re just there doing sex offender

verification; there is no need to get upset, out

of hand. We’re just trying to talk to Scott and

make sure everything is normal on the register

that he just came in and registered, and we’re

verifying that. And we kept trying to explain

that, but she didn’t want to listen. She just

kept yelling at us.

Q. And this was in the kitchen?

A. No, this was as soon as we went through -- the

breezeway, from what I remember[.]

Direct Powers at 8-9.

Although the record does not indicate that Sara

Carpenter ever specifically demanded that the Troopers leave the

home, she made her objection to their entry apparent. Direct

Minor at 19. When questioned whether “it was clear to [him]

that she didn’t want [him] to be there,” Trooper Minor

testified, “Sure, absolutely.” Id. at 19. When asked a similar

question, Trooper Powers testified:

Q. . . . Sara Carpenter was making it clear that

she didn’t want you there?

A. No, she never said she didn’t want us there.

She was mad that we were there doing a sex

offender verification.

Q. Isn’t that the same thing?

A. I’m sorry, sir.

Q. Did you ask her if she -- if you could come

in?

A. Well, we were standing inside the house, and

she never told us to get out or leave, by any

means.

Q. Well, she asked you for a warrant, didn’t she?

A. She asked multiple times for a search warrant.

She wanted a copy of the search warrant. And we

kept trying to explain to her, we’re doing a sex

offender verification, and we don’t provide a

search warrant when we do a sex offender

verification; that’s not something we ever do.

Q. So you admit that you did not have a warrant

when you entered the Carpenter home on May 13,

2014?

A. Yes, we didn’t have a warrant. We were inside

the house and she didn’t have a problem with it.

Q. Well, apparently, you testified that she did

have a problem?

A. She was upset and angry, yes, sir.

Q. She was asking if you had a warrant?

A. Correct.

Q. She was asking to see the warrant?

A. Yes, sir.

Q. And your response was that you didn’t have a

warrant?

A. Correct. We did not.

Q. So you never asked consent to enter the

Carpenter home, did you?

A. No, sir.

Direct Powers at 9-10.

The record developed at trial demonstrates that the

officers could have reasonably believed that Pierce Carpenter

provided them with consent to enter and search the home;

however, Sara Carpenter was quickly present, and a reasonable

juror could conclude that her actions amounted to an objection

to the Troopers’ entry and search. Sara Carpenter persistently

inquired about a warrant, appeared angry and upset at the

presence of the Troopers in her home, and was belligerent and

yelling. See, e.g., Direct Powers at 8-10. She remained

adamant in her conviction that the Troopers should have a

warrant to search her home, even as the Troopers informed her

that no warrant was necessary under their apparent, if

erroneous, belief that they had the right to be in the home to

conduct the verification, which necessarily involved a search,

at least for the limited purposes of an annual sex offender

verification. See, e.g., Cross Minor at 6-7 (Minor: “We

explained to her that we’re just there for the sex offender

verification. We’re not here to search your residence; we’re

here for a sex offender verification. You know . . . that we

didn’t need the warrant to go through to search her residence;

we weren’t there to search her residence.”); Direct Powers at 13

(Powers: “She kept saying we should have a search warrant. And

we kept explaining to her that we are doing a sex offender

verification.”).

While the record indicates that Trooper Minor

encountered Pierce Carpenter first, Sarah Carpenter quickly

joined Pierce at or near the front door, and her vocal

dissatisfaction was immediately apparent just after Minor

stepped through the door. See Direct Powers at 7; Direct Minor

at 17-18. Randolph draws a fine line: “if a [person] with self-

interest in objecting is in fact at the door and objects, the

co-tenant's permission does not suffice for a reasonable search,

whereas the potential objector, nearby but not part of the

threshold colloquy, loses out.” 547 U.S. at 121. Although Sara

Carpenter was not at the door when Trooper Minor first

approached, appearing momentarily after he crossed the

threshold, she was sufficiently expedient as to make her

objection contemporaneous.

This accords with the Supreme Court’s discussion in

Randolph wherein the Court spoke at length about the social

customs of entering a home. There, the Court reasoned that:

[A] caller standing at the door of shared premises

would have no confidence that one occupant's

invitation was a sufficiently good reason to enter

when a fellow tenant stood there saying, ‘stay out.’

Without some very good reason, no sensible person

would go inside under those conditions.

Id. at 113.

Extending that reasoning to a member of law

enforcement met with the same scenario, the Court in Randolph

found that “disputed invitation, without more, gives a police

officer no better claim to reasonableness in entering than the

officer would have in the absence of any consent at all[,]” as

“nothing in social custom or its reflection in private law

argues for placing a higher value on delving into private

premises to search for evidence in the face of disputed consent,

than on requiring clear justification before the government

searches private living quarters over a resident's objection.”

Id. at 114, 120.

Like Trooper Minor, see Direct Minor at 19, a

reasonable juror could conclude that Sara’s vigorous demands for

a warrant and expressive conduct toward the officers amounted to

an objection to their continued presence in her home, see

Bonivert, 883 F.3d at 875, constituting “an express refusal to

permit entry” as stated in Randolph, thereby revoking any

consent procured from Pierce as a co-tenant in the home.

Nevertheless, there is also sufficient evidence to support a

reasonable juror’s finding in defendants’ favor. Namely,

Trooper Powers testified that he did not understand Sara to be

asking the troopers to leave. See Direct Powers at 9-10. In

light of the factual nature of the issue of co-tenant consent

revocation as applied here, the question is one appropriately

left to a jury equipped with an adequate consent instruction,

making judgment as a matter of law inappropriate.

b. Plaintiffs’ alternative motion under Rule 59

The plaintiffs seek relief under Rule 59(b) under two

theories. First, they argue, the jury verdict was against the

weight of the evidence, and second, the trial amounted to a

miscarriage of justice due to either the plaintiffs’ claim of

unfair surprise at defendants’ theory of consent, which

plaintiffs’ counsel asserts was raised for the first time on the

eve of trial, or certain statements made by defense counsel

during closing arguments. The court supplements the analysis by

considering whether a new trial is warranted on the basis of the

court’s instruction to the jury on the law of consent.

1. Weight of the evidence

“[W]hen considering whether to grant a new trial under

Rule 59, a trial judge may weigh the evidence and consider the

credibility of the witnesses.” Wall Guy, Inc. v. Fed. Deposit

Ins. Co., - F. Supp. 3d -, No. 3:20-cv-304, 2023 WL 1806820 at

*6 (S.D. W. Va. Feb 7, 2023) (quoting Poynter by Poynter v.

Ratcliff, 874 F.2d 219, 223 (4th Cir. 1989)). Weight of the

evidence challenges on a motion for new trial require the

district court “to engage in a ‘comparison of proofs.’” Econo

Lodges of America, Inc. v. Norcross Econo-Lodge, Ltd., 764 F.

Supp. 396, 402 (W.D.N.C. 1991) (citing Ellis v. Int’l Playtex,

Inc., 745 F.2d 292, 298 (4th Cir. 1984)). “[A] trial court

should exercise its discretion to award a new trial sparingly,

and a jury verdict is not to be overturned except in the rare

circumstance when the evidence weighs heavily against it.”

Fussman v. Novartis Pharms. Corp., 509 F. App’x 215, 218 (4th

Cir. 2013) (quoting United States v. Smith, 451 F.3d 209, 216-17

(4th Cir. 2006)).

The plaintiffs do not separately articulate the

factual basis for their challenge to the sufficiency of the

evidence as it pertains to their alternative motion for a new

trial. The court relies on its foregoing analysis of the

plaintiffs’ Rule 50(b) motion and concludes that, even under the

more forgiving standard of Rule 59, see Cline v. Wal-Mart

Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998), the proof

adduced at trial could lead a jury to issue the same verdict in

favor of the defendants. While the court might generally view

the weight of evidence as tending to show that Sara Carpenter

revoked any consent to search given by Pierce, in view of the

testimony of both Trooper Minor, see Direct Minor at 19, and

uncontested protestations of Sara Carpenter, the contrary

testimony of Trooper Powers, who maintained that she never asked

the troopers to leave, could have been viewed as more persuasive

by a reasonable jury. See Direct Powers at 9-10. The court

does not find that this creates the “rare circumstance” where

the weight of the evidence is so clearly contradictory to the

verdict that it, standing alone, warrants a new trial. See

Fussman, 509 F. App’x at 218. In any event, the court finds

that the plaintiffs’ alleged infirmities at trial are better

suited to analysis as having possibly effectuated a miscarriage

of justice than as being against the weight of the evidence.

2. Miscarriage of justice

i. Unfair surprise

“[S]urprise does not warrant a new trial unless it

deprives the party of a fair hearing.” Twigg v. Norton Co., 894

F.2d 672, 675 (4th Cir. 1990) (citing Brady v. Chem. Constr.

Corp., 740 F.2d 195 (2d Cir. 1984)). “The movant must prove he

was reasonably and genuinely surprised,” Gilreath v. Cumberland

Cnty. Bd. of Educ., 304 F.R.D. 481, 486 (E.D.N.C. 2015), and

that his surprise was necessarily inconsistent with substantial

justice and resulted in actual prejudice. Twigg, 894 F.2d at

675. Thus, a party may succeed on a motion for new trial on the

basis of unfair surprise by proving its surprise was: (1)

reasonable, (2) genuine, (3) inconsistent with substantial

justice, and (4) actually prejudicial. See id.

Plaintiffs’ unfair surprise argument rests on

plaintiffs’ claim that defendants raised the defense of consent

for the first time on the eve of trial. See Pls.’ Mem. at 5-6.

Plaintiffs note that defendants did not raise the defense of

consent in their memorandum in support of summary judgment; in

the parties’ integrated pretrial order; or in defendants’

original, timely-filed jury instructions. Id. Rather,

plaintiffs say, defendants asserted the defense of consent for

the first time the day before trial when they submitted a

Proposed Supplemental Jury Instruction (ECF No. 69) on the law

of consent. Plaintiffs’ counsel concedes that he was unprepared

for the consent issue at trial. Pls.’ Reply, ECF No. 95 at 8.

Defendants rebut the plaintiffs’ unfair surprise

arguments by pointing out that plaintiffs’ complaint raised the

issue of consent, the defendants raised the issue of consent in

their depositions of the plaintiffs, and the court’s summary

judgment order identified the issue of consent as being an

outstanding disputed question of material fact. Defs.’ Resp.,

ECF No. 90 at 17-18. Further, they counter that any surprise

was of the plaintiffs’ own making due to their failure to depose

any of the defendants in preparation for trial. Id. at 17.

Finally, they point to plaintiffs’ failure to object to or rebut

the defendants’ presentation of evidence as to consent at trial,

as well as plaintiffs’ failure to object to the jury instruction

on consent. Id.

Plaintiffs’ motion for new trial based on unfair

surprise fails at the first step of the court’s inquiry because

it is fundamentally unreasonable. It is well understood that an

officer’s search of the home may pass constitutional muster when

there is a warrant, exigent circumstance, consent, or another

exception to the warrant requirement. It is simply unreasonable

to expect that, in a Section 1983 case regarding a putatively

unconstitutional search and after conducting no depositions of

the subject defendants, the defense of consent would be

categorically inapplicable. This is especially the case where

the plaintiffs’ own complaint specifically pled facts addressed

to the issue of consent. See Compl., ECF No. 1 at 7, 11.

Furthermore, even if plaintiffs’ surprise at the late

introduction of the defendants’ consent theory were reasonable,

it does not amount to genuine surprise warranting a new trial.

Not only were plaintiffs aware of this new theory in advance of

trial, but they also proposed a supplemental jury instruction

addressing the law of consent, see ECF No. 71, and made a

closing argument to the jury that contrapuntally attacked the

defendants’ theory of consent.

The time for framing plaintiffs’ arguments on consent

may have been compressed, but it cannot be said to have risen to

the level of genuine surprise when plaintiffs were aware of the

new defense theory before trial and made substantial arguments

on it at trial. See Watkins v. Casiano, 413 F. App’x 568, 569

(4th Cir. 2011) (per curiam) (affirming denial of new trial on

basis of unfair surprise where purported new theory of defense

raised on first day of trial). This is especially so where the

plaintiffs did not object to the new defense theory when they

were put on notice of it by virtue of the supplemental jury

instructions nor did they seek a continuance from the court so

as to adequately prepare themselves for trial on that legal

theory.

Having concluded that the plaintiffs’ asserted

surprise at the defendants’ pursuit of the consent theory on the

eve of trial was neither reasonable nor sufficiently acute to

constitute genuine surprise, a new trial on this ground is not

merited.

ii. Error in closing argument

“In general, failure to object to a closing argument

waives the right to attack the verdict on a motion for a new

trial[.]” Ray v. Allergan, Inc., 863 F. Supp. 2d 552, 565 (E.D.

Va. 2012) (Payne, J.) (citing Doe ex rel. G.S. v. Johnson, 52

F.3d 1448, 1465 (7th Cir. 1995)). “It is the universal rule

that during closing argument counsel cannot as a rule remain

silent, interpose no objections, and after a verdict has been

returned seize for the first time on the point that the comments

to the jury were improper and prejudicial.” Dennis v. Gen.

Elec. Corp., 762 F.2d 365, 366-67 (4th Cir. 1985) (internal

citations omitted). “A motion for a new trial should not be

granted, therefore, where the moving party has failed to timely

object to the alleged impropriety giving rise to the motion.”

Id. at 367. Failure to timely object “will be overlooked . . .

only if exceptional circumstances exist[.]” Id.

The plaintiffs contend that two statements of defense

counsel during closing arguments confused and prejudiced the

jury, warranting a new trial. First, the plaintiffs argue that

the jury verdict was obtained by defendants’ appeal to purported

jury sympathies toward police officers and repeated reference to

Robert Carpenter as a sex offender, though plaintiffs do not

number them.1 Pls.’ Mem. at 14-15. They particularly contest

defense counsel’s reference to Trooper Minor as “a former Marine

that got the Purple Heart, that got a Medal of Honor, and . . .

some type of Marine of the Year . . .. That’s the kind of guy

we’re dealing with here.” Tr. Proceedings Closing Args.

(“Closing Args.”), ECF No. 87 at 24-25. Plaintiffs contend

there was no evidence presented that Trooper Minor was in fact a

Medal of Honor recipient and that the assertion unfairly biased

the jury. Pls.’ Mem. at 15. Defendants contend that the court

reporter erroneously transcribed “a medal of honor” as “a Medal

of Honor;” that counsel’s other statements to the jury indicated

this was in fact a Medal of Valor, which is a type of honorary

medal; and that Trooper Minor had, in fact, received such a

medal. Defs.’ Resp. at 21. Because plaintiffs failed to object

at trial and any error on these accounts is harmless, the court

is not empowered to grant a new trial on this basis. See Fed.

R. Civ. P. 61.

Second, the plaintiffs contend that the jury was

misled and confused by a statement of defense counsel during

closing arguments that amounted to a material misstatement of

the law of consent. Pls.’ Mem. at 6, 17; Pls.’ Reply at 6-7.

1 During closing argument, counsel for defendants used the term

sex offender 27 times in his remarks to the jury. See Closing

Args. at 18-35.

Specifically, the plaintiffs point to defense counsel’s

statement to the jury that:

Mr. Carpenter is the one that gave the consent to

continue the verification process. He’s the only

person that could revoke that consent.

[Plaintiffs’ counsel] wants you to believe that Sara

Carpenter could revoke Scott Carpenter’s consent. But

Scott Carpenter gave the consent.

Closing Args. at 26.

Defendants respond that this is a correct statement of

law in that Fourth Amendment rights are personal in nature.

Defs.’ Resp. at 10. In essence, they contend that Pierce

Carpenter’s consent was good as to all occupants and that Scott

Carpenter renewed that consent. Id. at 9-15. They argue that

consent was not revoked because Sara was not contemporaneously

present at the time either consent was given and that, in any

event, any revocation of consent was individual to Sara and did

not make the search unreasonable as to Scott in light of

limiting language in the holding of Randolph that a co-tenant’s

objection makes a search unreasonable “as to him.” Id.

As the court’s foregoing discussion of the doctrine of

co-tenant consent revocation makes clear, defendants’

application of Randolph to the present facts is not persuasive.

Sara’s near immediate appearance at the door and vociferous,

pointed inquiries of the officers’ basis for the search closely

approximate the threshold colloquy envisioned by Randolph, and a

reasonable juror could conclude that her pitched demands for a

warrant and clearly expressive behavior amounted to an express

refusal to permit entry, just as a reasonable juror could have

concluded it fell short of that mark. Furthermore, there is no

discernible doctrinal basis for the implied requirement in

defendants’ theory that would force Sara, if deemed to have

revoked the consent to search procured from Pierce by her

protest at the door, to follow the officers around her own home

as they conducted a warrantless search and continue to voice her

objections lest the officers find another occupant from whom to

procure consent. That Sara was not present and objecting when

the officers obtained putative consent from Scott is of no

moment. See Orhorhaghe, 38 F.3d at 500.

Defense counsel’s statement at closing argument thus

represents an incomplete and misleading statement of the law of

consent at least insofar as it suggests that the objections of

Sara, a plaintiff in the case, were irrelevant to the issue of

consent. The ultimate question is whether this presents an

adequate basis for a new trial where the plaintiffs made no

objection at trial.

The court notes that while plaintiffs’ counsel did not

object to defense counsel’s statement at trial, his arguments in

rebuttal identified for the jury that defense counsel’s

statement of law was incomplete and directed them to follow the

instructions from the court. See Closing Args. at 43 (“I don’t

think you’ll see anywhere in the instructions where it says only

Scott Carpenter can revoke consent.”). Plaintiffs’ counsel thus

mitigated the confusing or misleading effect of defense

counsel’s statement in closing argument and any error from the

statement itself was harmless. See United States v. Cone, 714

F.3d 197, 230 (4th Cir. 2013) (Wynn, J., concurring in part)

(citing Chalmers v. Mitchell, 73 F.3d 1262, 1271 (2d Cir. 1996).

iii. Jury instruction

“A court may consider a plain error in the

instructions [to the jury] that has not been preserved . . . if

the error affects substantial rights.” Fed. R. Civ. P.

51(d)(2). Plain error review of a jury instruction requires

that “(1) the district court erred; (2) the error is plain; (3)

the error affects substantial rights; and (4) the error

seriously affects the fairness, integrity or public reputation

of judicial proceedings.” United States ex rel. Oberg v.

Pennsylvania Higher Educ. Assistance Agency, 912 F.3d 731, 738

(4th Cir. 2019) (internal marks omitted). An error is plain

when it is “clear or obvious, rather than subject to reasonable

dispute[.]” United States v. Marcus, 560 U.S. 258, 262 (2010).

In the ordinary case, an error affects substantial rights where

it was prejudicial, meaning that there is a reasonable

probability it affected the outcome of the trial. Id. (citing

United States v. Olano, 507 U.S. 725, 734-35 (1993)).

The test for adequacy of jury instructions “is not one

of technical accuracy in every detail[,]” but “simply the

practical one of whether the instructions construed as a whole,

and in light of the whole record, adequately informed the jury

of the controlling legal principles without misleading or

confusing the jury to the prejudice of the objecting party.”

Spell v. McDaniel, 824 F.2d 1380, 1395 (4th Cir. 1987).

Here, the jury found that plaintiffs had not

demonstrated “that a Defendant, or Defendants, violated Sara and

Robert Carpenter’s Fourth Amendment right to be free from an

unreasonable search and seizure of their home.” Jury Verdict

ECF No. 81. However, the court’s instruction on the law of

consent did not adequately reflect the law as stated in

Randolph, though both parties assisted in the formulation of

that instruction and no party made any objection to its content.

The jury was instructed that they “should find for the

defendants” if they “find that any person who lived at the

plaintiffs’ residence, or any person who possessed common

authority over or some other sufficient relationship to that

residence, gave the defendant officers consent to enter the

plaintiffs’ residence on May 13, 2014,” or if they “find that a

person who actually did not have the authority to grant such

consent, but whom the defendant officers reasonably believed had

such authority, consented to the defendant officers entering the

plaintiffs’ residence on May 13, 2014,” and that “[c]onsent once

given may be revoked at any time.” “Consent” Jury Inst.

The verdict rendered by the jury complied with this

instruction, but the instruction itself did not “adequately

inform[] the jury of the controlling legal principles,” and

likely “misle[d] . . . the jury to the prejudice of the

[plaintiffs].” Spell, 824 F.2d at 1395. A proper instruction

would have instructed the jury on the law governing three

questions of fact within the province of the jury that were left

unaddressed by the court’s consent jury instruction.

First, the jury should have been appropriately

instructed so as to enable them to consider whether Sara

Carpenter’s express statements were an effective objection to

any consent to a search of her home. See Randolph, 547 U.S. at

122-23. In light of the record, a reasonable jury could find

that Sara Carpenter’s statements to the troopers, including her

repeated exhortations and demands for a warrant, amounted to an

express refusal to permit entry and conduct a search.

Second, the jury should have been appropriately

instructed so as to enable them to consider whether Sara

Carpenter’s expressive conduct amounted to an express refusal of

consent. Even if a jury finds that she did not object to the

troopers’ presence by her words, she may still object by

demonstrable expressive conduct manifesting her desire to refuse

consent to search. See Bonivert, 883 F.3d at 875. In light of

the conflicting testimony of Trooper Minor, see Direct Minor at

19, and Trooper Powers, see Direct Powers at 9-10, a question of

fact exists as to whether Sara’s expressive conduct made clear

to the troopers that she was objecting to their presence in her

home.

Third, the jury should have been instructed on the

alternative possibility that any consent procured from Pierce or

any failure on the part of Sara to expressly refuse entry was

ineffective in light of the troopers’ mistaken assertions of

lawful authority to conduct a sex offender verification. See

Orhorhaghe, 38 F.3d at 500; Lattimore, 87 F.3d at 652. In light

of the troopers’ repeated assertions that their warrantless

presence in the home was authorized as a sex offender

verification, see, e.g., Direct Minor 18-19; Direct Powers 9-10,

a reasonable juror could conclude that this formed the basis for

any consent procured from Pierce, rendering it ineffective, or

any failure on the part of Sara to expressly refuse entry.

Though the plaintiffs by their counsel assented to it,

the consent jury instruction as given at trial did not properly

instruct the jury on the law governing the foregoing facts.

Accordingly, the court finds that the consent jury instruction

as given amounts to plain error because: (1) it was error to

instruct the jury on the law of consent without an instruction

as to the relevant rules of co-tenant consent revocation under

Randolph/Bonivert and effective consent under

Orhorhaghe/Lattimore; (2) these omissions are plain; (3) the

error affected the plaintiffs’ substantial rights insofar as

there is a reasonable probability that the incomplete

instruction on the law of consent prejudiced the plaintiffs, as

evidenced by the jury’s adverse verdict; and (4) an error in

stating the law within a pivotal jury instruction has a serious

effect on the fairness and integrity of judicial proceedings.

In view of the plain error in the jury instruction on the law of

consent, the court observes that there is a sufficient basis to

warrant a new trial.

c. The court’s authority under Rule 59(d)

Having determined that a new trial is warranted, the court must

consider its authority to order it. Notably, the plaintiffs’

combined motion did not seek relief on the basis of the court’s

incomplete jury instruction on the law of consent.

Nevertheless, “the trial judge must be allowed wide discretion

in granting a new trial.” Ford Motor Credit Co. v. Minges, 473

F.2d 918, 923 (4th Cir. 1973) (citing Cone v. West Virginia Pulp

& Paper Co., 330 U.S. 212, 216 (1947)). In ruling on a motion

for new trial, a “[c]ourt enjoys a greater degree of discretion

than when ruling on a motion for a directed verdict.” Crown

Central Petroleum Corp. v. Brice, 427 F. Supp. 638, 642 (E.D.

Va. 1977).

Rule 59(d) provides that “[a]fter giving the parties

notice and an opportunity to be heard, the court may grant a

timely motion for a new trial for a reason not stated in the

motion” of a party that is timely filed. Fed. R. Civ. P. 59(d),

second sentence; Wright & Miller, 11 Federal Practice and

Procedure § 2813 (3d ed. 2022); see also United States v.

Rafiekian, 991 F.3d 529, 551 (4th Cir. 2021) (noting, in dicta,

court’s authority under Rule 59(d) to grant new trial in civil

cases for reasons not stated in a litigant’s motion for new

trial). Accordingly, the court’s authority to grant a new trial

in such instances has three conditions: (1) timing, (2) notice,

and (3) specification of reasons.

A court acting under the authority of Rule 59(d) may

grant a new trial either before or after the entry of judgment.

See Douglas v. Union Carbide Corp., 311 F.2d 182, 184 (4th Cir.

1962) (similarly worded timing requirement under Rule 59(b) “was

designed to be broad enough to permit the motion to be made both

before and after the entry of judgment”). When judgment has

been entered, parties have 28 days to file motions for a new

trial under Rule 59(b) and a court acting sua sponte has 28 days

to enter an order granting a new trial under Rule 59(d). Fed.

R. Civ. P. 59. Rule 59(d)’s 28-day time limit “does not apply

to a decision based on a reason not stated in a timely filed

Rule 59(b) motion.” Kelly v. Moore, 376 F.3d 481, 484 (5th Cir.

2004); Wright & Miller, 11 Federal Practice and Procedure § 2813

(3d ed. 2022). The timeliness of a motion filed under Rule 59

is assessed by reference to the date a judgment order is entered

by the Clerk. Sawyer v. Atl. Disc. Corp., 442 F.2d 349, 350–51

(4th Cir. 1971). This requirement looks to when and whether

judgments upon a jury verdict were actually entered by the

clerk, notwithstanding the requirements of Rule 58. See

Douglas, 311 F.2d at 184 (upholding new trial granted 23 months

after jury verdict returned where judgment not yet entered).

Here, the timing requirement of Rule 59(d) is

inapplicable notwithstanding the length of time that has elapsed

since the jury returned its verdict at trial on December 7,

2017, because judgment has not been entered and thus the clock

has not yet begun to run under Rule 59.2

“Although a district court may grant a new trial on

its own initiative for reasons not stated in a timely post-trial

motion, the court is directed to give the parties notice and an

opportunity to be heard on the matter.” Valtrol, Inc. v. Gen.

Connectors Corp., 884 F.2d 149, 155–56 (4th Cir. 1989) (internal

marks omitted); accord Central Microfilm Serv. Corp. v.

Basic/Four Corp., 688 F.2d 1206, 1211 (8th Cir. 1982). The

Fourth Circuit has noted that Rule 59(d)’s “notice requirement

may not be ironclad, but the rule clearly contemplates notice in

the ordinary case.” Valtrol, 884 F.2d at 156.

Accordingly, the court may order a new trial due to

the incomplete jury instruction on consent. By this memorandum

2 Even if judgment had been entered, the court would still not be

impeded by the timing requirement of Rule 59 because the

plaintiffs’ motion was timely filed on December 13, 2017, a mere

six days after the verdict was returned. Where a district court

grants a new trial for reasons other than those raised by a

party in its timely-filed motion, it is deemed to act of its own

authority under Rule 59(d), but the timeliness requirement is

satisfied so long as the party’s motion for a new trial was

timely filed under Rule 59(b). See Central Microfilm, 688 F.2d

at 1211.

opinion, the court provides the parties with notice of its

proposed ground for a new trial. The parties may respond to the

court’s proposal by submission of supplemental briefing.

IV. Conclusion

The court withholds judgment upon the plaintiffs’

alternative motion for a new trial pursuant to Rule 59 until

such time as the parties have had an opportunity for submission

of any supplemental briefing on the grounds for new trial raised

by the court in Section III.b.2.iii pursuant to its authority

under Rule 59(d).

Accordingly, it is ORDERED that:

1. The plaintiffs’ renewed motion for judgment as a matter of

law be, and hereby is, denied;

2. Any responsive papers to the court’s proposed ground for a

new trial set forth in Section III.b.2.iii be filed by the

following dates:

a. Any response of the plaintiffs is due March 17, 2023;

b. Any response of the defendants is due March 24, 2023;

c. Any reply of the plaintiffs is due March 29, 2023.

The Clerk is directed to transmit copies of this order

to all counsel of record and any unrepresented parties.

ENTER: March 3, 2023

- Bb,

Jo . Copenhaver, Jr.

Senior United States District Judge

37