LEWIS

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ROBERT LEWIS, )

)

Plaintiff, )

)

v. ) 1:17CV964

)

HOKE COUNTY, HUBERT )

PETERKIN, TIMOTHY RUGG, )

SAMUEL MORANT, TIMOTHY )

KAVANAUGH, STANLEY DAVIS, )

and JOHN DOES 1-5, )

)

Defendants. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Robert Lewis alleges that deputies Timothy Rugg, Samuel Morant,

with the Hoke County Sheriff’s Office Timothy Kavanaugh, and Stanley

unlawfully searched his home and Davis, the only remaining defendants,

cars on October 19, 2014 after they have now moved for summary

arrested him on armed robbery judgment. Defs.’ Mot. for Summ. J.,

charges. He brought this suit against Docket Entry 65.

Hoke County, the sheriff, and various

deputies, alleging a violation of his For the reasons stated herein, the

Fourth Amendment rights.1 and, Court should grant in part the

under North Carolina law, trespass, defendants’ motion as to the seizure

false arrest, false imprisonment, and a of the property pending a search

due process violation. See generally warrant and deny in part the

Compl., Docket Entry 2; Am. Compl., defendants’ motion as to the

Docket Entry 9.2 protective sweep.

1 As for any state law claims Lewis may Docket Entry 6. Considering Lewis’s pro

have asserted, see infra at 16. se status, this recommendation will treat

2 In his Amended Complaint, Lewis the two complaints as the operative

“realleges and incorporates by reference” amended complaint.

portions of his original complaint. See

I. FACTS on the Johnston County robbery. See

id. They drove by the Laurinburg

The following facts are undisputed Road residence and saw a blue Nissan

unless otherwise noted. Titan parked at the residence, but

they did not see the Kia Optima. See

On September 21, 2014, an armed id.

man robbed a Family Dollar in Hoke

County. See, e.g., Timothy Rugg Decl. When the Hoke County day shift

¶ 3 (Sept. 23, 2025), Docket Entry 66- patrol deputies started their shift on

3. The suspect wore dark clothing, October 19, 2014, they had this

black tennis shoes with white information and continued to be on

bottoms/soles and Velcro fasteners, the lookout for Lewis. See id. ¶ 5.

and a blue piece of cloth covering his Patrol Deputy Kavanaugh drove to the

face. See id. He fled the scene in a residence and parked nearby where

dark blue Nissan Titan pickup truck. he surveilled the house for “most of

See id. Five days later, another armed the morning.” See id. He radioed Shift

robbery took place in Hoke County, Sergeant Morant several times

this time at a Dollar General. See id. throughout the morning to report that

The was again a man who wore dark he was still surveilling the house, the

clothing with a blue face covering. See blue Nissan Titan was still parked at

id. Two days later, a man robbed the house, but no other cars had come

anther Dollar General in Hoke or gone. See Samuel Morant Decl. ¶ 9

County. See id. He was armed and (Sept. 22, 2025), Docket Entry 66-2.

wore dark clothing with a blue face Kavanaugh also reported that he had

covering. See id. As of mid-October not seen anyone – including Lewis –

2014, law enforcement had not solved enter or leave the house. Id. Morant

the crimes. See id. ¶ 4. instructed Kavanaugh to leave the

residence and return to his patrol

However, on October 19, 2014, the duties. Id. ¶ 10.

case broke. A man robbed a

sweepstakes business in Johnston Later in his shift, at approximately

County, and an officer with the 1:10 p.m., Kavanaugh drove past the

Smithfield Police Department residence again. See Kavanaugh Decl.

identified the suspect as Robert ¶ 6. This time he saw a gray Kia

Dwayne Lewis. See, e.g., Timothy Optima, along with the blue Nissan

Kavanaugh Decl. ¶ 4 (Sept. 23, 2025), Titan, parked at the house. See id.

Docket Entry 66-4. Lewis fled the Kavanaugh turned around and parked

scene in a gray Kia Optima registered on the other side of the road from the

in his name to 7085 Laurinburg Road house. See id. ¶ 7. By now, Kavanaugh

in Hoke County, where law knew that Johnston County had

enforcement personnel believed he

lived. See id. Night shift patrol

deputies in Hoke County were briefed

issued arrest warrants for Lewis. See evidence but did not open the car

id.; Morant Decl. ¶ 12. doors or disturb the car in any way.

See id. ¶ 13. He then radioed Morant

Several minutes later, a man fitting to report his conversation with

Lewis’s description left the house and Lewis’s stepfather and what he had

walked across the street to the seen inside the Kia. See id. ¶ 14.

mailbox. See Kavanaugh Decl. ¶ 8.

Kavanaugh approached the man in Morant arrived on the scene and saw

his car and radioed the Sheriff’s Lewis’s stepfather standing on the

Office. See id. porch. See Morant Decl. ¶ 18. He

parked near Kavanaugh and Davis

He stopped his car near the man, got and walked over to speak with

out of his car, and approached him. Kavanaugh for an update. See id.

See id. ¶ 9. The man identified After receiving the update, he called

himself as Robert Lewis. See id. Lieutenant Rugg in the Detective

Kavanaugh placed Lewis in Division to report what had

handcuffs, and Patrol Deputy Davis, happened, including the Smithfield

who had just arrived, stood watch Police Department’s identification of

while Kavanaugh searched Lewis’s their robbery suspect as Lewis, the

person and put him in the backseat of license plate of the getaway car

the patrol car. See id. ¶ 10. coming back to Lewis at the

Kavanaugh then reported to Morant Laurinburg Road address, the arrest

that he had arrested Lewis. See id. warrants for Lewis for that robbery,

¶ 11. and Hoke County Sheriff’s Office’s

assistance with locating and arresting

Kavanaugh walked across the street to Lewis. See id. ¶ 19. He continued to

the residence and knocked on the tell Rugg that deputies had driven by

front door. See id. ¶ 12. An elderly the residence and seen the truck

man, Lewis’s stepfather, answered the believed to be the suspect car in the

door and came outside on the porch to Hoke County robberies and the Kia

speak with Kavanaugh. See id. He Optima, and that Kavanaugh saw

confirmed that Lewis also lived at the Lewis exit the house and walk across

house. See id. He told Kavanaugh that the street, identified the man as

the Kia Optima belonged to Lewis, the Lewis, and arrested him. See id.

but Nissan Titan was his, although he

allowed Lewis to use the truck After finishing the call to Rugg,

occasionally. See id. Morant asked Kavanaugh if there was

anyone else in the house; Kavanaugh

After he spoke with Lewis’s did not know. See id. ¶ 20. So

stepfather, Kavanaugh stepped Kavanaugh returned, this time with

towards the Kia Optima, looked Morant, to the front porch where

through its windows, and saw what Lewis’s stepfather was still standing.

appeared to be incriminating See id. Morant explained that

deputies needed to ensure there was photographs and videos. See Lewis

no one inside the house for officer Decl. ¶ 5. And when Kavanaugh was

security. See id. Deputies “did not taking Lewis to the Sheriff’s Office, he

know whether [Lewis] had any told Lewis that he and Morant “had

accomplices.” See Kavanaugh Decl. already searched through [his]

¶ 15. Lewis’s stepfather said that his bedroom and saw some very

wife was not home and no one else interesting things in [his] cellphone

was there. See Morand Decl. ¶ 20. But that [he] didn’t have to worry about

“in order to be sure, as taking the anymore because [he] was going to

word of a stranger in a situation like prison.” See id. ¶ 7.

this was a very risky proposition,” id.,

Morant and Kavanaugh asked if they While Kavanaugh and Morant were in

could “conduct a quick security sweep Lewis’s house, Lewis saw Davis

inside of his house,” see id.; walking in the yard photographing the

Kavanaugh Decl. ¶ 15. Lewis’s inside of the Nissan Titan and the Kia

stepfather told Morant and Optima, as well as the storage barn in

Kavanaugh that he did not have a the backyard. See id. ¶ 6.

problem with that and to do what they

needed to do. See Morant Decl. ¶ 20; Rugg then called Morant and told him

Kavanaugh Decl. ¶ 15. to secure the residence until deputies

could obtain a search warrant for the

Morant and Kavanaugh then residence and cars. See Morant Decl.

conducted a protective sweep of the ¶ 21; Timothy Rugg Decl. ¶ 7 (Sept. 23,

inside of the residence. See Morant 2025), Docket Entry 66-3. Davis and

Decl. ¶ 20; Kavanaugh Decl. ¶ 15. others remained at the scene while

They claim their sweep took no more detectives obtained a search warrant

than two minutes, see, e.g., for the premises. See, e.g., Stanley

Kavanaugh Decl. ¶ 15, but Lewis avers Davis Decl. ¶ 10 (Sept. 26, 2025),

that they were in the house from Docket Entry 66-1. After an hour and

approximately 2:00 p.m. to just after a half, Davis left to resume his regular

3:00 p.m., according to the watch he patrol duties, and other deputies

was wearing at the time, see Lewis continued to secure the premises. See

Decl. ¶¶ 3-4. id. ¶ 11.

They did not find anyone inside the All the while, Lewis remained at the

house and state they did not “touch or scene in the back of Kavanaugh’s

disturb anything in the house, nor did patrol car; at some point, he began to

[they] conduct any sort of search for feel sick and nauseated, so deputies

evidence.” See, e.g., Kavanaugh Decl. called Emergency Medical Services.

¶ 15. According to Lewis, though, his See Kavanaugh Decl. ¶ 17. Emergency

two unlocked cellphones were in his Medical Technicians evaluated Lewis

bedroom at the time, and the for approximately fifteen minutes and

cellphones contained intimate determined that he was not in any

medical distress. See id. ¶ 18. And charging Lewis for the Hoke County

Lewis declined the offer to go to the armed robberies. See Rugg Decl. ¶ 9.

hospital or receive any additional They arrived to execute the search

medical attention. See id. warrants at approximately 10:20 p.m.

and found incriminating evidence

According to Kavanaugh, “[a]t some inside the house and the Kia Optima.

point in time,” a deputy escorted See id. ¶¶ 10, 12-14.

Lewis into his home to use the

restroom, see id. ¶ 19, but Lewis Lewis ultimately entered Alford pleas

denies he ever went back inside his to the Hoke County and Johnston

house after his arrest, see Lewis Decl. County charges.

¶ 8.

II. PROCEDURAL

Rugg then called Detective Tart to HISTORY

draft the search warrant for Lewis’s

residence, the Nissan, and the Kia. See Lewis brought this action against the

Rugg Decl. ¶ 6. Around 4:30 p.m., at defendants, claiming a violation of his

the request of Rugg and Morant, Fourth Amendment rights because (1)

Kavanaugh transported Lewis to the Kavanaugh “failed to serve or prove

Sheriff’s Office where Rugg and Tart the existence of the Johnston County

made an unsuccessful attempt to warrant,” (2) Kavanaugh failed to

interview him. See Morant Decl. ¶ 26; serve the Johnston County “warrant

Rugg Decl. ¶¶ 7, 8. without unnecessary delay” in

violation of the arrest order, (3) he

Throughout the afternoon, deputies endured a “period of confinement . . .

remained at the scene to secure it following an arrest that was never

while detectives obtained a search made,” (4) deputies entered onto the

warrant. See, e.g., Morant Decl. ¶¶ 22- property without a warrant after they

28. Sometime after Lewis had left, his had taken Lewis into custody, (5)

mother arrived, and Morant told her deputies seized his residence for

she could not go inside the house. See approximately eight and a half hours

id. ¶ 27. When shifts changed, “without a warrant, probable cause, or

Sergeant Teasley took over at the exigent circumstances,” and (6) Hoke

scene for Morant. See id. ¶ 28. At County and the sheriff failed to

some point, a deputy permitted supervise and train the deputies. See

Lewis’s mother and stepfather to Compl. ¶¶ 21-25; Am. Compl. ¶¶ 26-

enter the house to wait in the living 28.

room because of the dark and cold.

See Rugg Decl. ¶ 10. The Court has since dismissed all

claims against Hoke County and the

Late that night, detectives obtained sheriff. The only remaining claim

search warrants for the residence and against Kavanaugh arises from the

both cars, as well as arrest warrants alleged eight-and-a-half-hour search

and seizure of the residence while motion and nothing more when he

waiting for the search warrants, moved to deem his “Response to

including the one-hour warrantless Defendants’’ Motion for Summary

security sweep inside the residence. Judgment Timely Filed Due to

And all claims against Davis, Morant, Hardship.” See Doc. 68 (emphasis

and Rugg remain. See Order (Nov. 21, added).

2024) (adopting the recommended

ruling), Docket Entry 55. After granting Lewis’s motion to deem

his response timely, the Court

The defendants argue that there is no afforded the defendants the

genuine dispute of material fact, they opportunity to reply, which they have.

did not violate Lewis’s constitutional See Defs.’ Reply in Supp. of their Mot.

rights, they are entitled to qualified for Summ. J., Docket Entry 73.

immunity, and they are otherwise

entitled to judgment as a matter of This matter is ripe for disposition.

law. See Defs.’ Mot. for Summ. J.,

Docket Entry 65. In support of their III. STANDARD OF

motion, they each submitted REVIEW

affidavits, as well as two pages from

Lewis’s testimony in state court, A court “shall grant summary

referenced supra. See Docket Entries judgment if the movant shows that

66-1 to 66-5. there is no genuine dispute as to any

material fact and the movant is

In opposition to the motion, Lewis entitled to judgment as a matter of

submitted his own Declaration, made law.” Fed. R. Civ. P. 56(a). A genuine

under penalty of perjury. See Mem. of dispute of material fact exists “if the

Law in Supp. of Cross-Mot. for Summ. evidence is such that a reasonable jury

J., Docket Entry 70-1; Decl. of Robert could return a verdict for the

Lewis (Dec. 10, 2025), Docket Entry nonmoving party.” Anderson v.

70-2.3 Lewis entitles his response as a Liberty Lobby, Inc., 477 U.S. 242, 248

cross-motion for summary judgment, (1986). In analyzing a summary

but the deadline by which to file judgment motion, courts

dispositive motions expired three “must construe all facts and

months earlier, see Order (Sept. 6, reasonable inferences in the light

2025), Docket Entry 62, and Lewis most favorable to the nonmoving

did not seek leave to move for

summary judgment at this late date.

Even Lewis recognized that the filing

is only a response to the defendants’

3 Lewis also refers the Court to his Court cannot consider them as evidence

“verified” complaint, but neither his when deciding the motion for summary

original complaint nor his amended judgment.

complaint is verified. Therefore, the

party.” Bandy v. City of Salem, 59

F.4th 705, 709 (4th Cir. 2023). IV. DISCUSSION

The moving party bears the burden of A. Qualified immunity shields the

establishing the absence of a genuine defendants from the eight-hour

dispute of material fact by property seizure claim.

“identifying those portions of ‘the

pleadings, depositions, answers to Lewis contends that the eight-hour

interrogatories, and admissions on seizure of his property while officers

file, together with the affidavits, if any’ obtained a search warrant violated the

which it believes demonstrates the Fourth Amendment.

absence of a genuine issue of material

fact.” Celotex Corp. v. Catrett, 477 The Fourth Amendment “protects

U.S. 317, 323 (1986) (quoting Rule property interests, and, specifically,

56). an individual’s possessory interest in

property that belongs to him but has

“Where, as here, the nonmoving party

been seized by law enforcement

bears the ultimate burden of proof at

officers,” United States v. Krueger,

trial, the moving party may discharge

145 F.4th 460, 467 (4th Cir. 2025), for

its initial burden at summary

instance, when law enforcement is

judgment by ‘showing – that is,

seeking a search warrant for that

pointing out to the . . . court – that

property, see Illinois v. McArthur, 531

there is an absence of evidence to

U.S. 326, 331 (2001). For example,

support the nonmoving party’s case.’”

temporarily “securing a dwelling, on

Anderson v. Diamondback Inv. Grp.,

the basis of probable cause, to prevent

LLC, 117 F.4th 165, 174 (4th Cir. 2024)

the destruction or removal of

(quoting Celotex Corp., 477 U.S. at

evidence while a search warrant is

325). “If the moving party carries this

being sought is not itself an

initial burden, the burden then shifts

unreasonable seizure of either the

to the nonmoving party, who must ‘go

dwelling or its contents.” Segura v.

beyond the pleadings and by [his]

United States, 468 U.S. 796, 810

own affidavits, or by the depositions,

(1984).

answers to interrogatories, and

admissions on file, designate specific

Courts “balance the privacy-related

facts showing that there is a genuine

and law enforcement-related

issue for trial.’” Id. (quoting Celotex

concerns to determine if the intrusion

Corp., 477 U.S. at 324).

was reasonable.” McArthur, 531 U.S.

at 331. While this is a fact-specific

inquiry, the Supreme Court’s rulings

in McArthur and Segura provide investigate. See United States v.

guideposts for the analysis here. Elmore, 101 F.4th 1210, 1218 (10th

Cir. 2024) (emphases in original)

Specifically, in McArthur, officers (quoting McArthur, 531 U.S. at 332-

accompanied a woman to her home 33).

that she shared with her husband to

keep the peace while she collected her In Segura, the Court found, “under

belongings. See id. at 328-29. After [the] limited circumstances” of the

she had done so, she told the officers case, that the overnight seizure of an

that her husband “had dope in there” apartment was reasonable where “the

and had “slid some dope underneath officers focused first on the task of

the couch.” See id. at 329. Her processing those whom they had

husband denied the officers consent arrested before turning to the task of

to search, so they sought a search securing the warrant,” not an

warrant, which they secured two unreasonable decision given “that the

hours later, and did not allow the proprietors of the apartment were in

husband to reenter the home the custody of the officers throughout

unaccompanied during the interim. the period in question.” 468 U.S. at

See id. 812. In addition, “it [was] reasonable

to assume that” for much of the

The Court considered (1) the probable overnight delay “judicial officers

cause the police had that the home [were] not as readily available for

contained evidence of a crime and consideration of warrant requests.”

contraband, (2) the good reason to Id. at 812-13. And there was also “no

fear that the husband would destroy evidence that the agents in anyway

the drugs before they could obtain the exploited their presence in the

warrant, (3) the reasonable efforts to apartment.” Id. at 812. Finally,

balance their law enforcement needs because the individuals challenging

with the husband’s right to privacy, the seizure of the apartment were

and (4) the imposition of “the under arrest and in police custody

restraint for a limited period of time, during the seizure, “[t]he actual

namely, two hours.” See id. at 331-32. interference with their possessory

Weighing these factors, the temporary interests in the apartment and its

seizure of the home was contents was . . . virtually

constitutional; “this time period was nonexistent.” See id. at 813.

no longer than reasonably necessary

for the police, acting with diligence, to Applying these considerations here,

obtain the warrant.” See id. at 332; the defendants acted reasonably, and,

accord Krueger, 145 F.4th at 467. more important, there is no evidence

Notably, “McArthur authorizes

warrantless seizures of a home . . . ‘no

longer than reasonably necessary . . .

to obtain the warrant,’” not to

that any of the defendants caused the ‘two-pronged inquiry.’” Nazario v.

delay. Gutierrez, 103 F.4th 213, 230 (4th Cir.

2024) (quoting Tolan v. Cotton, 572

Rugg ordered Morant to seize the U.S. 650, 655 (2014)). First, the court

property, but only after first determines whether “in a light most

determining there was probable cause favorable to the injury party – ‘the

to seek a warrant (from Morant’s officer’s conduct violated a

information tying Lewis and the constitutional right.’” Id. (quoting

property to the crimes) and ordering Saucier v. Katz, 533 U.S. 194, 201

officers to obtain one. See, e.g., State (2001)). Next, the court asks

v. Lewis, 831 S.E.2d 37, 38 (N.C. “whether the right at issue in the first

2019) (recognizing officers had prong was ‘clearly established at the

probable cause for the search of time’ of the contested action.” Id.

Lewis’s home and car). And there are (quoting Pearson, 555 U.S. at 227).

no facts suggesting that Rugg was “Accordingly, a court may award

responsible for the extended delay in qualified immunity to an official if

obtaining the warrant. The same is either (1) there is no violation of a

true for Morant, Kavanaugh, and constitutional right, or (2) the

Davis. During a portion of their shifts, constitutional right was not clearly

they were each responsible for established.” Id. (citing Pearson, 555

securing the property, but they were U.S. at 227).

not responsible for obtaining the

warrant or the accompanying delay. The court is required to define the

constitutional right at a “‘high level of

Furthermore, Rugg, Morant, particularity’” because “[t]he way in

Kavanaugh, and Davis are entitled to which an alleged right is described

qualified immunity even had they matters.” Atkinson v. Godfrey, 100

caused the extended seizure. “The F.4th 498, 505 (4th Cir. 2024)

doctrine of qualified immunity (quoting Ewards v. City of

‘balances two important interests,’ Goldsboro, 178 F.3d 231, 250-51 (4th

namely, the need to hold accountable Cir. 1999)). “Although a case directly

public officials who exercise power on point is not required, existing

irresponsibly, and the need to shield precedent ‘must have placed the

officials who perform their duties statutory or constitutional question

responsibly from ‘harassment, beyond debate.’” Id. at 505-06

distraction, and liability.’” Byers v. (quoting Kisela v. Hughes, 584 U.S.

Painter, 173 F.4th 155, 160 (4th Cir. 100, 104 (2018)).

2026) (quoting Pearson v. Callahan,

555 U.S. 223, 231 (2009)). “In the end, the key inquiry is whether

‘the law provided “fair warning” that

“In resolving whether to award [the officer’s] conduct was

qualified immunity at summary unconstitutional.’” Atkinson, 100

judgment, courts are to engage in a F.4th at 506. (quoting Booker v. S.C.

Dep’t of Corr., 855 F.3d 533, 538 (4th the protective sweep was

Cir. 2017) (alteration in Booker)). To constitutional.

answer that question, courts look to

precedent of the United States 1. The protective sweep is an

Supreme Court and, in this district, exception to the warrant

the Fourth Circuit Court of Appeals. requirement.

Id.

“‘It is a basic principle of Fourth

In October 2014, these defendants Amendment law that searches and

would have believed their actions seizures inside a home without a

were reasonable. There was no clearly warrant are presumptively

established law finding it unreasonable.’” United States v.

unreasonable for deputies to secure a Jones, 667 F.3d 477, 482 (2012)

residence and cars for eight hours (quoting Payton v. New York, 445

pending the issuance of a search U.S. 573, 586 (1980)) (alteration

warrant where there was probable removed). Nevertheless, “‘because

cause to believe the residence and cars the ultimate touchstone of the Fourth

contained evidence of a crime and the Amendment is reasonableness,’” the

individual with the possessory United States Supreme Court “has

interest was under arrest and in identified certain ‘narrow and well-

custody. delineated exceptions to the warrant

requirement.’” Id. (quoting Kentucky

Accordingly, Rugg, Morant, v. King, 563 U.S. 452, 459 (2011));

Kavanaugh, and Davis are entitled to Flippo v. West Virginia, 528 U.S. 11,

qualified immunity for the claim that 13 (1999)).

the eight-hour seizure of the residence

and cars violated Lewis’s Fourth One such “well-settled” exception is

Amendment rights. the protective sweep. See id. (citing

Marland v. Buie, 494 U.S. 325

B. The defendants are not entitled (1990)). “A ‘protective sweep’ is a

to summary judgment or quick and limited search of a

qualified immunity as to the premises, incident to an arrest and

protective sweep. conducted to protect the safety of

police officers or others.” Buie, 494

The defendants are not entitled to U.S. at 327. “The protective sweep

summary judgment on Kavanaugh’s exception requires more than a

and Morant’s protective sweep inside generalized worry of danger” or “a

Lewis’s house or Davis’s protective lack of information.” United States v.

sweep of the property. The record Everett, 91 F.4th 698, 710 (4th Cir.

evidence does not show, as a matter of 2024).

law, that the basis for or the scope of

Instead, the Fourth Amendment

requires that “articulable facts which,

taken together with the rational perpetrator was involved. See United

inferences from those facts, would States v. Troy, No. 13-

warrant a reasonably prudent officer 15(1)(DWF/LIB), 2013 WL 1827676,

in believing that the area to be swept at *8 (D. Minn. Apr. 11, 2013)

harbors an individual posing a danger (affirming sweep where suspect had

to those on the arrest scene.” Buie, used a firearm during the bank

494 U.S. at 334. robbery two days earlier, two separate

witnesses led officers to the defendant

2. The record evidence of the and his suspected accomplice, and

justification for the protective officers knew the defendant was living

sweep forecloses summary at his accomplice’s apartment), report

judgment. and recommendation adopted, 2013

WL 1811297 Apr. 30, 2013). See also

The justification for a protective United States v. Hardy, NO. 2:23-cr-

sweep is the protection of the 43-RAH-JTA, 2023 WL 3218639, at

arresting officers from the danger that *2 (M.D. Ala. Apr. 13, 2023) (sweep

person in the area to be swept poses to affirmed where, just hours after an

them and others. The nature of the armed robbery of a gas station,

crime under investigation and the officers learned the get-away car had

potential presence of co-conspirators arrived at a nearby hotel and the

bear heavily on this analysis. For driver had exited the car with a gun

example, arresting members of a drug and entered a hotel room, went to the

trafficking organization often hotel, and saw at least two people

supports this precaution. See, e.g., leave the room and believed the

Everette, 91 F.4th at 711 (affirming suspect remained inside), report and

three-and-a-half minute protective recommendation adopted, 2023 WL

sweep of Everett’s residence where 3218504 (May 2, 2023), aff’d, 2024

officers knew he was a large-scale WL 3691890 (11th Cir. Aug. 7, 2024).

drug distributor and had found “Considering the totality of the

firearms in the homes of his co- circumstances,” the court found that

conspirators). See also, e.g., Jones, the officers “knew specific and

667 F.3d at 484-85 (affirming articulable facts which gave rise to a

protective sweep where officers had reasonable suspicion justifying a

seen known drug users at the house, protective sweep.” Id. at *4.

some of whom officers knew carried

firearms, and, at the time of the However, simply because the suspect

sweep, there were seven cars on the may have been armed earlier does not

property when the Joneses claimed no necessarily justify a protective sweep

one else was at the house). upon his arrest. For example, in

United States v. Day, 2026 WL

In the robbery context, applicable 904202 *5-6 (D.S.D. Apr. 2, 2026),

here, courts have affirmed protective the officers did not have reasonable

sweeps where more than one suspicion to believe there was a

dangerous individual inside the the conversation and what he had

arrestee’s apartment. Officers seen in the car.

responded to the defendant’s

apartment after a report that he had Morant arrived on scene, walked over

brandished a firearm at two to Kavanaugh for an update, and then

individuals nearby, and, at the time, proceeded to call Rugg. And it could

they also knew he and an accomplice not have been a short call: Morant

were wanted on suspicion of a robbery recounted the overnight report from

five days earlier. Id. But he was alone Smithfield about their robbery, the

when he brandished his firearm, there suspect, his car, and his residence,

was no information anyone else lived Kavanaugh’s morning surveillance

with him, officers heard nothing from and afternoon return to the residence

inside his apartment to suggest during which he saw and arrested

anyone was there, and, before the Lewis. After that call, he and

sweep, they had lingered outside of Kavanaugh walked to the house to

the apartment casually without any spoke with Lewis’s stepfather on the

indication of concern for their safety porch.

from within the apartment. Id. The

court explained that “[t]he mere Not only had all of this taken place

possibility someone else is inside a since Lewis’s arrest, but, at the time of

residence is not enough to justify a the sweep, none of the robbery reports

protective sweep.” Id. at *6. – from Hoke County or Smithfield –

noted an accomplice. Kavanaugh had

Here, not unlike the officers in Day, not seen anyone else at the residence

Kavanaugh, Davis, and Morant had all morning. There were no additional

been at the scene and outside of the unaccounted-for cars in the driveway.

residence for a period of time before Morant’s refusal to take the word of a

conducting the sweep, albeit the stranger does not justify the sweep

record evidence does not say for how under these circumstances. See Jones,

long. And they never behaved as if 667 F.3d at 484 (“[A]llowing the

concerned for their safety, much less police to conduct protective sweeps

for that of anyone inside the home. whenever they do not know whether

After arresting Lewis and detaining anyone else is inside a home creates

him in the patrol car, Kavanaugh an incentive for the police to stay

approached the house, knocked on ignorant as to whether or not anyone

the door, and spoke with Lewis’s else is inside a house in order to

grandfather about Lewis, his arrest, conduct a protective sweep.”). And “a

and the Nissan and Kia. He felt generalized worry of danger” is no

comfortable enough on the property more sufficient to justify a protective

to walk by the Kia to look through the sweep. See Everett, 91 F.4th at 710;

windows on the way back to his patrol see also Jones, 667 F.3d at 484 (“[A]

car. He then radioed Morant to report lack of information cannot provide an

articulable basis upon which to justify

a protective sweep.”). The record justified even when officers arrest the

evidence does not support a finding, suspect “just outside the residence”);

as a matter of law, that the sweep was see also United States v. Green, 599

justified. F.3d 360, 376 n.16 (4th Cir. 2010)

(finding that “officers were fully

The same holds true for Davis’s justified in entering the residence

protective sweep of the yard during even if [the arrestee] was seized

which time he photographed the outside the threshold [of the house]

storage barn in the backyard and the [because] officers clearly saw” other

inside of the cars. The Fourth people in the house, and people who

Amendment not only protects the posed a threat to the if not secured).

home from unreasonable search and

seizure, but it also shields the home’s But what does it mean to arrest

curtilage, “the area ‘immediately someone “just outside the residence?”

surrounding and associated with the An arrest on the patio, on the porch,

home.’” See Florida v. Jardines, 569 outside the threshold, or on the

U.S. 1, 6 (2013) (quoting Oliver v. ground just feet from the door is close

United States, 466 U.S. 170, 180 enough. See, e.g., Jean-Laurent v.

(1984)). The same issues that plague Hunt, No. 5:23-CT-3231-FL, 2026

Morant’s and Kavanaugh’s protective WL 1494464, at *2, *4 (E.D.N.C. May

sweep of the house undermine the 28, 2026); United States v. Cleckley,

propriety of Davis’s warrantless entry No. 24-cr-00329-LKG, 2026 WL

onto the property to walk around the 1265431, at *3 (D. Md. May 8, 2026);

yard taking photographs. Cf. United United States v. Wingrove, No. 2:19-

States v. August, 136 F.4th 595, 599, 00176, 2019 WL 5777646, at *2

601 (5th Cir. 2025) (upholding a (S.D.W. Va. Nov. 5, 2019). But

protective sweep of a backyard when arresting a suspect outside of the

officers responded to a shots-fired fence in front of his home, without

call). any facts concerning officer safety, did

not support the need for a protective

3. The record evidence of the sweep when the officer admitted that

location of Lewis’s arrest “[he] could have just put [the suspect]

forecloses summary judgment. in the car and driven away.” See

United States v. Hogan, 38 F.3d 1148,

In addition to officers’ knowledge and 1150 (10th Cir. 1994) (first alteration

reasonable inferences, courts also in Hogan).

consider the proximity of the arrest to

the area to be swept. That is, an arrest Here, there is no record evidence of

“just outside,” as opposed to inside, a the distance from the site of Lewis’s

home may still support the need for a arrest to his residence. But there is no

protective sweep. See Jones, 667 F.3d dispute that Kavanaugh arrested and

at 485 n.10 (joining other circuits and detained Lewis at the mailbox across

finding that a protective sweep may be the street from his residence, at which

point the deputies could have left the Kavanaugh and Morant viewed the

scene. Instead, Kavanaugh exposed contents of his cell phone during their

himself twice to the alleged danger protective sweep.4 The law would not

inside the house when he walked support such a search without a

across the street to talk with Lewis’s warrant, as no exception to the

stepfather. And this alleged danger warrant requirement would apply

failed to stop Morant from joining under these circumstances.

Kavanaugh the second time.

6. The record evidence of the

4. The record evidence of the consent to conduct the

length of the sweep forecloses protective sweep forecloses

summary judgment. summary judgment.

Even when there is a basis for a Another well-settled exception to the

protective sweep, it can last “no longer warrant requirement is valid consent

than is necessary to dispel the – “either from the individual whose

reasonable suspicion of danger and in property is searched or from a third

any event no longer than it takes to party who possesses common

complete the arrest and depart the authority over the premises.” See

premises.” Buie, 494 U.S. at 335-36. Illinois v. Rodriguez, 497 U.S. 177, 181

Kavanaugh and Morant each aver the (1990) (internal citations omitted).

protective sweep took no more than “[T]he consent of one who possesses

two minutes. On the other hand, common authority over premises or

Lewis avers that it took an hour, effects is valid as against the absent,

which is longer than the record nonconsenting person with whom

evidence shows was necessary to that authority is shared.” See United

answer their safety concerns. This is a States v. Matlock, 415 U.S. 164, 170

genuine dispute of material fact. (1974); see id. at 179 (describing the

absent defendant as being “restrained

5. The record evidence of the in a squad car a distance from the

extent of the sweep forecloses home”) (dissent)). This “[c]ommon

summary judgment. authority rests on the mutual use of

the property by persons generally

“A protective sweep . . . does not having joint access or control for most

entitle officers to conduct a full search purposes . . . .” Id. at 171 n.7 (noting

of the premises, but rather extends the assumption of risk that a co-

only to a limited inspection of spaces

where a person may actually be

found.” United States v. Green, 599

F.3d 360, 376. Lewis asserts that

4 The defendants’ opposition to this n.5. That assertion bears directly on

evidence is their contention that the witness credibility, which is the province

“claim is absurd.” See Defs.’ Reply at 15 of the jury to assess.

habitant may permit the search of the dispute as to the length of time of the

common area). sweep. If the sweep lasted as long as

Lewis claims that it did, the evidence

Since Matlock and Rodriguez, the forecloses a finding as a matter of law

United States Supreme Court has that the hour-long search was a quick

drawn a “fine line” in this context. See sweep. In addition, Lewis contends

Georgia v. Randolph, 547 U.S. 103, the defendants reviewed the contents

121 (2006). That is, “if a potential of his unlocked cell phone, which was

defendant with self-interest in in his bedroom, which forecloses the

objecting is in fact at the door and conclusion that the defendants merely

objects, the co-tenant’s permission searched the common areas to which

does not suffice for a reasonable the consent extended for people who

search, whereas the potential could pose a danger.

objector, nearby but not invited to

take part in the threshold colloquy, Furthermore, there is no evidence

loses out.” Id. that Lewis’s stepfather consented to

Davis walking around the yard, much

To determine if a third-party’s less taking photographs while he was

consent to enter is valid, courts ask if doing so. In sum, the Court cannot

a reasonable officer, in possession of conclude as a matter of law that the

the facts known to the officer at that defendants’ warrantless search of the

time, would be warranted in believing residence was a lawful protective

“the consenting party had authority sweep.

over the premises.” Rodriguez, 497

U.S. at 189 (citing Terry v. Ohio, 392 7. The defendants are not entitled

U.S. 1, 21-22 (1968)). Furthermore, to qualified immunity on the

even when a third-party’s consent is protective sweep claim.

valid, officers may not exceed the

limits of that consent. See United At the time of the defendants’

States v. McFarley, 991 F.2d 1188, protective sweep, the following right

1191 (4th Cir. 1993). was clearly established: the right to

be free from the warrantless search of

Here, Lewis’s stepfather gave a home, absent the reasonable belief

Kavanaugh and Morant consent to based on specific and articulable facts

search the house, and Lewis has and their inferences at the time of

presented no evidence to dispute this. arrest in or just outside the home

But whether the execution of the “that the area swept harbored an

protective sweep complied with the individual posing a danger to the

confines of that consent is an open officer or others.” See Buie, 494 U.S.

question. Lewis’s stepfather at 327, 335. It was also clearly

consented to the defendants’ request established that a co-tenant’s consent

to conduct a quick protective sweep. to search a residence only extends to

As explained above, there is a genuine areas of joint access or control, see

Matlock, 415 U.S. at 479, and officers Court has similarly interpreted

may not exceed the limits of consent, Lewis’s claims for relief.

see McFarley, 991 F.2d at 1191.

Even so, the Court’s dismissal of the

Accordingly, based on the record § 1983 claim against Kavanaugh for

evidence, the defendants are not arresting Lewis on a Johnston County

entitled to qualified immunity on the warrant would foreclose his claims of

protective sweep claim.5 false arrest and false imprisonment.

Compare Order and R. of U.S. Mag. J.

C. The state law claims, to the (R&R) at 22 (finding it was reasonable

extent Lewis asserted any, do to believe there was probable cause),

not survive. Docket Entry 44, recommended

ruling adopted, Order, Docket Entry

In his Complaint, Lewis refers to 55 with Williams v. City of

claims of trespass, false arrest, false Jacksonville Police Dep’t, 599 S.E.2d

imprisonment, and state due process 422, 430 (N.C. Ct. App. 2004)

in his “Basis for Jurisdiction” (“Probable cause is an absolute bar to

paragraph to explain the a claim for false arrest.”) and Myrick

supplemental jurisdiction over those v. Cooley, 371 S.E.2d 492, 494 (N.C.

claims. See Compl. at 4 ¶ B. He does Ct. App. 1988) (recognizing that false

not specifically mention those claims arrest is one way to commit false

again. Nor does anyone else – at the imprisonment). In addition, the

motion to dismiss or the motion for Court noted that, to the extent Lewis

summary judgment stage. Lewis’s was asserting a trespass claim, it

filings have focused on the § 1983 failed. See R&R at 8 n.3. For all of

constitutional claims against the these reasons, in addition to the

defendants. And he did not lodge any requirement that there be no

objections to the earlier Report & adequate state law remedy, the state

Recommendation on the basis of any due process claim would fail.

state law claims against the

defendants. In other words, the

parties have litigated this case as

though Lewis only asserted § 1983

claims against the defendants, and the

5 As they did in their motion to dismiss, n.10. See also White v. City of

the defendants argue the absence of Greensboro, 608 F. Supp. 3d 248, 266-

Lewis’s compensable injury. See Br. in 67 (M.D.N.C. 2022) (recognizing that,

Supp. at 33-35. But, as they even in the absence of compensatory

acknowledge, Lewis may nevertheless be damages, a § 1983 plaintiff may recover

entitled to nominal damages. See id. at 35 nominal damages).

Judgment be GRANTED IN PART

V. CONCLUSION as to the seizure of the property

pending a search warrant and

It is hereby RECOMMENDED that DENIED IN PART as to the

the Defendants’ Motion for Summary protective sweep.

JoAnna Gibson McFadden

United States Magistrate Judge

August 28, 2026

Durham, North Carolina

17